SUPREME COURT OF QUEENSLAND

CITATION:	R v Walker [2025] QCA 185	
PARTIES:	R
v
WALKER, Oliver Ryan
(appellant/applicant)	
FILE NO/S:	CA No 38 of 2025
DC No 274 of 2021	
DIVISION:	Court of Appeal	
PROCEEDING:	Appeal against Conviction & Sentence	
ORIGINATING COURT:	District Court at Ipswich – Date of Conviction and Sentence: 14 February 2025 (Chowdhury DCJ)	
DELIVERED ON:	3 October 2025	
DELIVERED AT:	Brisbane	
HEARING DATE:	11 September 2025	
JUDGES:	Bond JA and Bleby AJA and Williams J	
ORDERS:	1.	The appeal against conviction is dismissed.
2.	Leave to appeal against sentence is refused.	
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was found guilty of one count of attempted arson and one count of serious assault of a person 60 years or more – where the trial judge gave a direction that was intended to encompass a Liberato direction – where in giving that direction, the trial judge used the phrase “if you find the defence evidence unconvincing” – where the appellant argued on appeal the framing utilised by the trial judge undermined the second limb of the Liberato direction and conveyed an impression the defence evidence could only give rise to a reasonable doubt if the jury believed it to be truthful – where the appellant also argued on appeal that the failure to give directions to the jury on alibi evidence, and how to deal with competing inferences, resulted in the directions as a whole failing to guard against the jury inferring the defence evidence could only give rise to a reasonable doubt if the jury believed it to be truthful – where the trial judge gave directions to the jury about the onus being on the prosecution, and not the defendant, to establish facts and each element of the offences – where the trial judge addressed the jury on the standard of proof in orthodox terms – whether the trial judge’s framing of various directions to the jury caused a miscarriage of justice
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was found guilty of one count of attempted arson and one count of serious assault of a person 60 years or more – where the element of “unlawfully” on the count of serious assault of a person 60 years or over was not included on the indictment – where the element of unlawfulness was not subject to direction by the trial judge due to the element not being particularised on the indictment – where it was not in issue at trial that the assault was unlawful – where the appellant’s case at trial was that he did not commit the offences and was not present at the scene when the offences were committed – whether there was a miscarriage of justice occasioned by the failure of the trial judge to direct the jury on the element of unlawfulness and it not being referenced on the indictment
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was found guilty of one count of attempted arson and one count of serious assault of a person 60 years or more – where the sentencing judge took into consideration that the appellant was 44 years old at the time of the offending, he suffered from multiple physical and mental health conditions, and the offending was serious – where the appellant was a permanent resident in Australia – where the appellant did not appreciate the risk of deportation and that risk was not before the sentencing judge – where the appellant argued on appeal that the sentence was manifestly excessive in light of comparable authorities and that the risk of deportation justified considering a partial suspension of a sentence of imprisonment – whether the sentence was manifestly excessive
Alford v McGee (1952) 85 CLR 437; [1952] HCA 3, cited
Brawn v The King (2025) 99 ALJR 872; [2025] HCA 20, cited
De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48, cited
Huynh v The Queen (2013) 228 A Crim R 306; [2013] HCA 6, cited
R v Fahey, Solomon and AD [2002] 1 Qd R 391; [2001] QCA 82, followed
R v M [1996] 1 Qd R 532; [1995] QCA 70, cited	
COUNSEL:	J B Horne for the appellant/applicant
J D Finch for the respondent	
SOLICITORS:	Legal Aid Queensland for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent	
[1]	BOND JA:  I agree with the reasons for judgment of Bleby AJA and with the orders proposed by his Honour.
[2]	BLEBY AJA:  On 14 February 2025, a jury found the appellant guilty of one count of attempted arson, contrary to s 461(1)(a) and s 535 of the Criminal Code (Count 1) and one count of serious assault of a person 60 years or more, contrary to s 340(1)(g) of the Criminal Code (Count 2).  A judge of the District Court sentenced him to four years’ imprisonment in respect of Count 1 and three years’ imprisonment in respect of Count 2, ordering that the sentences be served concurrently.  He declared six days spent in pre-sentence custody to be time already served under the sentence.  He did not set a parole eligibility date, with the consequence that the appellant will become eligible for parole after serving fifty per cent of the head sentence, that is, two years.
[3]	The appellant has appealed against his conviction and sentence.  The issues arising on the appeals are:
•	whether the trial judge’s framing of various directions to the jury, including a Liberato direction, caused a miscarriage of justice;
•	whether the failure to direct the jury on an element of unlawfulness in respect of the charge of serious assault, consequent on that element not being referenced in the indictment, caused a miscarriage of justice; and 
•	whether the sentence was manifestly excessive.
Background
The prosecution case
[4]	In the early morning of 13 August 2020, Mr Barry Campbell, who was aged 71, woke to his dog barking.  He heard a noise under his house.  He went to the back door and saw that the external lights were on.  He picked up a baseball bat and went to investigate.
[5]	Mr Campbell’s son lived in a room constructed underneath the house.  He was not there that night.  Mr Campbell saw a person crouched down, pouring something from a fuel can on or near his son’s door.  Mr Campbell shone a torch on the intruder, who was wearing a black plastic top hat and an ‘Anon’-style mask.  The intruder spun around and struck Mr Campbell on the right side of his head with a crowbar.  Mr Campbell staggered back, and the intruder then lit the fuel.  The two men wrestled on the ground and the intruder then escaped in the direction of the back fence.
[6]	Mr Campbell then saw some black material lying on the ground.  However, he was at that stage focused on the fire that was coming out of the room.  He told his wife to retrieve the fire extinguisher, which she did.  He was able to extinguish the fire.
[7]	Mrs Campbell called emergency services.  Mr Campbell’s evidence was that the events occurred at around 4:00 am.  However, Mrs Campbell’s 000 call was logged at 5:32 am.  During the call, Mr Campbell described the intruder as five foot six to five foot eight and 168 centimetres or so.  The appellant is 182 centimetres tall.
[8]	Mr Campbell sustained lacerations, facial bone fractures and pneumocephalus (air near the brain).
[9]	The prosecution case was that the intruder was the appellant.  The identification case against the appellant was circumstantial.  The appellant had been to the Campbell house on a number of occasions.  Mr Campbell’s son, Benjamin, had known the appellant for about three months.  The appellant was a tattoo artist, and Benjamin had spoken with the appellant about transposing some artwork into a tattoo.
[10]	On the day of the fire, police attended at the appellant’s address.  The appellant had his hand in his pocket.  Police asked him to remove it and when he did, they observed significant burns on the appellant’s left hand and arm.  The appellant told them he had burned himself cooking panko chicken.
[11]	Police located, at the Campbell’s house, a gel blaster, black bag and black hat between the downstairs area and the rear steps of the house.  They found a cigarette lighter in the back left corner of the property and a pale-coloured, alien mask in the garage.
[12]	Mixed DNA profiles were obtained from the striker plate of the cigarette lighter, the trigger area of the gel blaster and the inside of the black hat.  In each case, the mixed profile was estimated to be 100 billion times more likely to have occurred if the appellant was a contributor.
[13]	A mixed DNA profile was also obtained from the baseball bat.  This was estimated to be 25 billion times more likely to have occurred if the appellant was a contributor.
[14]	At the time of the incident, the appellant lived with Natalie Audoss, their two-year old child and the appellant’s adult son, Ezekiel Walker, who worked with the appellant as he was training to be a tattoo artist.  Ms Audoss’ car was a blue Mitsubishi Lancer.  Ms Audoss gave evidence that the appellant would only drive that car in emergencies.
[15]	Ms Audoss said that on the evening of the incident, the appellant was drinking and ‘getting messy’, so she suggested he take his medication and go to bed.  This was at around 8:30 or 9:00.  Ms Audoss went to bed at that time.  At some point during the night, she woke to discover the lights were still on in the house.  The appellant was in the kitchen, eating.  Then, at around 5:45 am she woke and saw the appellant walking from the kitchen out to the patio, not wearing any clothes.  She saw him stand in front of the firepit, which was smoking.
[16]	At about 8:00 am, Ms Audoss took the baby into the garage, where the appellant would often sleep, to say goodbye.  The appellant appeared to be asleep.  Ms Audoss nudged him awake, he rolled over and said goodbye to the baby and they left.
[17]	Ms Audoss got into her car.  She noticed that it smelt a bit like turpentine and that there was a red smear on the driver’s side armrest.
[18]	Ms Audoss said that she did not recall seeing any burns on the appellant’s hands in the days leading up to when police spoke with her.
[19]	Police later found black nitrile gloves in the passenger footwell of the car.  Ms Audoss said she had no cause to have black rubber-type gloves in the car.
[20]	Ms Audoss gave evidence that she was not aware of Maree Hobbs coming over that night.
[21]	Benjamin Campbell gave evidence.  He said he had known the appellant for about three months prior to the incident.  He accepted, in cross-examination, that he had an interest in tattoo art and the sorts of art that might be transposed into tattoos.  He would discuss those things with the appellant.  The appellant had come to his house, and Benjamin accepted that he would spend time there with him and his dad, on ‘one or two occasions’.
[22]	Benjamin denied that the appellant had spoken with him about a potential plan for a sleeve tattoo that included a picture of a person with a gun, or that the appellant had produced some ‘costume-type things’ with a plan for taking photographs to transpose into tattoo artwork.  He denied that the appellant had provided a hat and a pretend gun for that purpose.
The defence case
[23]	The appellant gave evidence.  He denied committing the offences.  He said he had been friends with Benjamin for about a year and that he had visited the Campbell house over 50 times.  He had played cricket in the back yard there and done drawings for tattoos.  He, Benjamin and Barry Campbell were all smokers.  There was a bowl of lighters on a table near the back door.  He said that he had left some clothing at the house, together with a gel blaster, a couple of hats and some playing cards.  These were used to do mock-ups for tattooing.
[24]	The appellant said that on the night of the incident, Ms Audoss, Ezekiel, the child and he were all at home.  He and Ezekiel were painting signs.  They all had dinner and then he and Ezekiel continued doing signs.  Ms Audoss went to bed at 8:15 or 8:30.  Then a friend, Maree Hobbs came over a couple of hours after dinner.  They snuck Maree in through the roller door which was ajar.  They had drinks in the garage.  They went out into the back garden, roasted marshmallows and played with sparklers, then went back into the garage.  They were drinking until late.  He eventually went to bed on the daybed in the garage.  The sun was up.
[25]	The appellant said that prior to going to bed, he had to tidy up.  He used turps to clean the paint.  He had got some paint on Ms Audoss’ car, when he was listening to the car radio, and used turps to clean it up.  He said he got blood on her car having cut his finger on a sign.  He had sustained a burn to his hand when cooking panko chicken, on the Sunday before the incident, that is, three or four days earlier.
[26]	Ezekiel Walker and Maree Hobbs gave evidence that was broadly consistent with that of the appellant.  Ms Hobbs said she left at 6-6:30 in the morning, before Ms Audoss got up.
Whether a combination of directions caused a miscarriage of justice (Ground 1)
[27]	The judge gave a direction, which was manifestly intended to encompass a Liberato direction, in the following terms:
Where, as here, there is defence evidence, usually, one of three possible results will follow (1) you may have thought that the defence evidence was credible and reliable and it provides a satisfactory answer to the prosecution case.  If so, your verdict on each charge would be not guilty.  Or you may think that although the defence evidence was not convincing, it leaves you in a state of reasonable doubt as to what the true position was.  Again, if that is your position, your verdicts would be not guilty.  Or you may reach the conclusion that the defence evidence should not be accepted.
However, … if that is your view, be careful not to jump from that view to an automatic conclusion of guilt.  If you find the defence evidence unconvincing, set it to one side, go back to the rest of the evidence and ask yourselves whether, on a consideration of such evidence as you do accept, you are satisfied beyond reasonable doubt that the prosecution have proved each of the elements of the offence.
[28]	The appellant contrasted the framing of the three limbs of the Liberato direction in the second and third paragraphs, above, with the language that the High Court preferred in De Silva v The Queen:
… (i) if you believe the accused’s evidence (if you believe the accused’s account in his or her interview with the police), you must acquit; (ii) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused’s evidence (if you do not believe the accused’s account in his or her interview with the police) you should put that evidence (account) to one side.  The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?
[29]	Rather than using the phrase, in the third limb, ‘if you do not believe the accused’s evidence…’, the judge said, ‘[i]f you find the defence evidence unconvincing…’.  The difficulty with this phrase, when read in isolation, is immediately apparent.  To put the defence evidence to one side, where the jury finds it to be unconvincing, does not allow for the possibility that even if unconvincing, the evidence might be true, thereby establishing a reasonable doubt.
[30]	The appellant did not go so far as to submit that this phrasing alone caused a miscarriage of justice.  However, he submitted that in circumstances where this direction effectively undermined the second limb, and where certain other directions were not given, discussed below, the overall effect was to convey an impression that the defence evidence could only give rise to a reasonable doubt if the jury believed it to be truthful.
[31]	The risk associated with describing defence evidence in terms that suggest an onus to be ‘convincing’ warrants avoiding such language.  Nevertheless, whether a direction has occasioned or contributed to a miscarriage of justice in a given case requires consideration of the full context in which the language appears.
[32]	In the first instance, the judge used the word ‘convincing’ in phrasing the second limb as well, in terms that allowed for the evidence to raise a reasonable doubt even if it was not ‘convincing’.  The phrasing of the third limb then built on that.  The appellant submitted that the third limb phrasing tended to undermine the second limb.  However, it might equally be said, and perhaps with more force, that in directly following the direction on the second limb, the third limb addressed the prospect of the jury not only finding the defence evidence to be unconvincing, but also not finding it to create a reasonable doubt.  That contextually tiered reasoning is assumed by the model direction given in De Silva, albeit using the words, ‘if you do not believe’ in the third limb.
[33]	It is then necessary to consider the broader context of the direction.  The judge earlier directed the jury in orthodox terms that the burden rested on the prosecution, and that there was ‘no burden on the defendant to establish any fact, let alone his innocence’.  He directed that the prosecution was required to prove beyond reasonable doubt that the defendant was guilty, and that this extended to every element of the offences charged.  He explained that if the jury were left with any doubt about guilt on any charge, their obligation was to acquit.
[34]	The judge then addressed the standard of proof in orthodox terms.
[35]	Shortly prior to the directions extracted above, the judge addressed the topic of the appellant calling evidence:
Now, I have already said that the defendant did not have to give evidence or call other people to give evidence on his behalf.  That he has done so does not mean he assumed a responsibility of proving his innocence.  The burden of proof has not shifted to him.  His evidence and those of the two witness he called for his defence is added to the evidence called by the prosecution.  As I have said, the prosecution has the burden of proving each of the elements of the offence beyond a reasonable doubt, and it is from the whole of the evidence that you must be satisfied beyond reasonable doubt that the prosecution has proved the case before the defendant can be convicted.
[36]	The judge then explained that in a case of word against word, it was not a matter of making a choice between the prosecution and defence witnesses.  He explained, immediately before giving the Liberato direction:
The proper approach is to understand that the prosecution case depends upon you the jury accepting the evidence of the prosecution’s principal witnesses, and they were true and accurate beyond reasonable doubt despite the sworn evidence by the defendant and his witnesses.  So you do not have to believe that the defendant was telling the truth before he is entitled to be found not guilty. (emphasis added)
[37]	The final, emphasised passage directly counters the undermining effect that the appellant submitted arose from the phrasing of the third limb of the Liberato direction.
[38]	For the reasons I have explained, I would deprecate the use of the word ‘convincing’ in association with evidence adduced by the defence.  However, in the present case the judge made it clear that even if the jury did not believe, or find ‘convincing’, the defence evidence, they were nonetheless to consider whether it raised a reasonable doubt.  If it did not, they were to set it aside and consider whether the prosecution had, nonetheless, proved its case beyond reasonable doubt.
[39]	The appellant further submitted that the failure to give certain other directions resulted in the directions as a whole failing to guard against the jury inferring that the defence evidence could only give rise to a reasonable doubt if the jury believed it to be truthful.
[40]	First, the appellant complained that no direction was given with respect to the alibi evidence to this end.  He pointed to a model direction provided by the Benchbook, Chapter 41.3:
If you accept the alibi evidence, or even if it only creates a reasonable doubt about whether the Defendant could have committed the offence, then [he/she] must be acquitted of the relevant charge.  However, if you are satisfied beyond reasonable doubt that the Defendant was present at the time of the alleged offence, it does not follow from your rejection of the alibi evidence that the Defendant must be guilty.  It still remains for you to consider whether you are satisfied beyond reasonable doubt of all the elements of the offence based on the evidence which you do accept.
[41]	This model direction is, essentially, an application of a Liberato direction to the adducing, by a defendant, of alibi evidence.  Having regard to the general directions given above, I do not think the failure to give it caused or contributed to a miscarriage of justice.  For the reasons given above, those directions were sufficiently clear.  The real issue at trial was whether the intruder was the appellant; the defence case was that he was at home all night.  He called Maree Hobbs and Ezekiel Walker in support of this case.  The judge explained to the jury:
You should be careful to avoid any prejudice that might subconsciously attach to the word alibi.  It would be wrong to think that describing a defendant’s claim that he was not present when the offence was committed as an alibi carries with it any suggestion that the claim is deserving of special scrutiny…
[42]	When that direction is read together with the general directions given above as to the prosecutor’s onus and the Liberato direction in its context, I do not think that the failure to give any further direction with respect to the alibi evidence caused a miscarriage of justice.
[43]	The appellant also complained that the judge gave no general direction to the effect that if there was an inference reasonably open that was adverse to the appellant, as well as a competing inference in his favour, the jury could only draw an inference of guilt if it overcame the other possible inference as to leave no reasonable doubt in their minds.  He accepted that this was an amplification of the rule that the prosecution must prove its case beyond reasonable doubt, but submitted it was necessary in this case, where the defence mounted a positive case answering the circumstantial case against him.
[44]	The judge gave a hypothetical example of competing inferences and then said:
It is a simple example of drawing a reasonable inference, one is open or not, and where you have got competing inferences, it makes it very hard to draw what is one inference over the other when there are competing rational inferences.
[45]	The appellant pointed to this passage in support of his complaint of insufficiency of the direction.  However, the judge did not limit his explanation to this.  He went on:
Now, remember, in a criminal case, you can only draw reasonable inferences, and your inferences must be based on facts you find proved by the evidence.  There must be a logical and rational connection between the facts you find and your deductions or conclusions.  You are not to indulge in intuition or guessing.  The burden rests on the prosecution to prove the guilt of the defendant.  There is no burden on the defendant to establish any fact, let alone his innocence.  He is presumed to be innocent.  He may be convicted only if the prosecution establishes that he is guilty of the offences charged.
[46]	Later, the judge again emphasised that it was for the prosecution to prove beyond reasonable doubt that it was the appellant who was at the Campbell residence at the time the fire was lit, and Mr Campbell assaulted.  When these directions are considered together, and in the whole of the context of the directions as discussed earlier, in my view the judge communicated to the jury sufficiently that they could not convict unless they had excluded beyond reasonable doubt any competing inference consistent with innocence.
[47]	I am not persuaded, having regard to the totality of the directions, that the judge was required to direct the jury further on either the alibi evidence or with respect to competing inferences.  Neither do I think that the failure to give any further such direction, when considered together with the terms of the Liberato direction, constituted a miscarriage of justice.  While use of terms like ‘convincing’ in association with defence evidence should be avoided, I am satisfied that in the context of the entire Summing Up, the judge’s directions did not convey an impression that the defence evidence could only give rise to a reasonable doubt if the jury believed it to be truthful.
[48]	I would dismiss Ground 1 of the appeal.
Whether the judge failed to direct the jury on an element of the offence of serious assault (ground 2)
[49]	The judge directed the jury on the elements of the offence of serious assault of a person 60 years or more in the following terms:
I then come to the next charge, which is shortly known as serious assault.  Well, the prosecution allege that the defendant assaulted Mr Campbell, and that he was 60 years old or more.  Well, you have the evidence of Mr Campbell to say how old he was.  He was 71 in August of 2020.  And again, I summarise briefly Mr Campbell’s evidence that he was struck with the crowbar, and then there was that scuffle, and the offender was armed with the tin, the fuel tin, and he was swinging that around and so forth.  An assault under our law is an application of force, direct or indirect, without the consent of the other person.  There is no doubt that Mr Campbell did not consent to being struck that night or being assaulted.
So there has to be an application of force, being struck, touched, moved or any other application of force.  Here, the prosecution rely on the striking with the crowbar and then the struggle afterwards, but particularly the striking of the crowbar.  So no question that there was no consent to that.  No question that at the time, Mr Campbell was over 60 years of age.  Entirely a matter for you, but you might think that there clearly was an assault on Mr Campbell with the crowbar.  The critical element that has to be proved is identity, “Was it the defendant who struck Mr Campbell with the crowbar and then engaged in that struggle afterwards?”  Of course, the onus is on the prosecution to prove these things beyond a reasonable doubt.
[50]	The appellant complained that the direction occasioned a miscarriage of justice or a wrong decision of law because it did not include a direction on the element of ‘unlawfully’.
[51]	The offence of serious assault of a person 60 years or more is prescribed by s 340(1)(g) of the Criminal Code in the following terms:
340	Serious Assaults
(1)	Any person who—
…
(g)	unlawfully assaults any person who is 60 years or more; …
…
is guilty of a crime.
[52]	Sub-section 340(1)(g) proscribes one of eight different types of serious assault within the section.  Curiously, while all eight of these proscribe ‘assaults’, only paragraphs (c), (g) and (h) are phrased in terms, ‘unlawfully assaults…’.
[53]	Although the count as framed in the indictment in the present case did mention s 340(1)(g), it did not particularise the element, ‘unlawfully’.  While the complaint is one of a failure to direct on an element of the offence, there is bound up with that this deficiency in the indictment.  The respondent has applied to amend the indictment to insert the word, ‘unlawfully’ before the word, ‘assaulted’.  The power to amend and indictment is in s 572 of the Criminal Code:
572	Amendment of indictments
(1)	If, on the trial of a person charged with an indictable offence, there appears to be a variance between the indictment and the evidence, or it appears that any words that ought to have been inserted in the indictment have been omitted, or any count that ought to have been included in the indictment has been omitted, or that any words that ought to have been omitted have been inserted, the court may, if it considers that the variance, omission, or insertion, is not material to the merits of the case, and that the accused person will not be prejudiced thereby in the person’s defence on the merits, order the indictment to be amended, so far as it is necessary, on such terms (if any) as to postponing the trial, and directing it to be had before the same jury or another jury, as the court may think reasonable.
(1A)	Without limiting subsection (1), if the court considers the offence charged in the indictment is also a domestic violence offence, the court may order that the indictment be amended to state the offence is also a domestic violence offence.
(2)	The indictment is thereupon to be amended in accordance with the order of the court.
(3)	If the court is satisfied no injustice will be done by amending the indictment, the court may make the order at any time before, or at any stage of, the trial on the indictment, or after verdict.
(4)	When an indictment has been amended, the trial is to proceed, at the appointed time, upon the amended indictment, and the same consequences ensue, in all respects and as to all persons, as if the indictment had been originally in its amended form.
(5)	If it becomes necessary to draw up a formal record in any case in which an amendment has been made, the record is to be drawn up setting out the indictment as amended, and without taking any notice of the fact of the amendment having been made. (emphasis added)
[54]	Sub-section 572(3) is broad enough to permit amendments to an indictment on appeal, subject to satisfaction of the conditions in s 572(1).  In R v Fahey, Solomon and AD, an indictment charging an offence contrary to s 317 of the Criminal Code omitted the word ‘unlawfully’, where the offence provided:
Any person who, with intent ... to do some grievous bodily harm ... to any person ... unlawfully ... does grievous bodily harm ... to any person ... is guilty of a crime ...
[55]	The Court considered the defect in the indictment was not minor, but in circumstances where the unlawfulness of the attack was not in doubt, the indictment could be amended after the verdict to cure it.  Justice Thomas (McMurdo P and Mullins JA agreeing) adopted to this end observations by this Court in R v M:
In each case it is necessary to examine the substance and effect of the procedural breach.  If there is a defect in the constitution of the court, the authorities suggest that the conviction will be set aside whether it might be thought to have affected the result or not.  This is to be distinguished from procedural errors in the course of a trial by a duly constituted court.  In such cases one examines whether the error might have affected the determinative process or the opportunity of acquittal for the accused, or even more generally if it might have affected the quality of the trial.  The perception of such potential effects may suggest a miscarriage of justice in which case it will lead to the setting aside of the conviction.  In this respect the effect of such a procedural error may not be very dissimilar to other errors committed in the course of a trial such as errors in the summing up.  The appeal court examines closely the effect of the particular error on the trial as a whole.
[56]	The Court accepted that the omission of the word, ‘unlawfully’ was not minor.  It was an element of the offence.  It required the Crown to prove that the doing of the proscribed act was contrary to law and not excused.  However, the applicant (who resisted the Crown’s application to amend) incurred no disadvantage from the error.
[57]	In Fahey, as the appellant observed, the appellants had pleaded guilty.  Nonetheless, the statement of principle is apposite.  Moreover, what appears to have been determinative in that case was not the plea of guilty per se, but rather the circumstance that the unlawfulness of the attack was not in dispute.  Thomas JA concluded in this regard:
The present circumstances satisfy the requirements of both s 572(1) and s 572(3).  In particular, it appears that words that ought to have been inserted in the indictment have been omitted; the omission is not material to the merits of the case; the accused person was not prejudiced by reason of the amendment in his defence on the merits; and in terms of s 572(3), no injustice will be done by amending the indictment.
[58]	Moreover, it was desirable that the indictment be amended to cure the latent inconsistency in the Court record.
[59]	While the appellant did not plead guilty in the present case, there was no issue that the alleged assault was unlawful.  The appellant did not challenge Mr Campbell’s evidence of the events of the assault upon him; the only issue was whether the appellant was the person who committed the assault.  Indeed, the appellant conceded that the defence would not have been run any differently if the word ‘unlawfully’ had been included.  This is not a case ‘where a defective indictment has a material effect upon the conduct of the defence or where the case of an accused person is differently presented or influenced in some way by the error’.  The omission from the indictment of the word, ‘unlawfully’ was not material in the context of the issues arising.  It cannot be said that the appellant would be prejudiced by amending the indictment to include the word.  I would grant the respondent’s application to amend the indictment.
[60]	That leaves the failure to include the word ‘unlawfully’ in the directions to the jury.  That failure was directly referable to the omission of the word from the indictment.  That is not the end of the matter, however.  In Brawn v The King, the High Court explained:
A common circumstance relied on as giving rise to a miscarriage of justice is that there was an error or irregularity in the trial at which the appellant was convicted; that is, some defect in the trial such as a departure from the rules of evidence or procedure, improper cross-examination by a crown prosecutor or a misstatement of fact by the trial judge in the summing up.  If such an error or irregularity was “fundamental” in the sense discussed in the authorities then there will be a miscarriage of justice and no occasion to address the proviso separately will arise.  The establishment of a fundamental error or irregularity will necessarily mean that there was a substantial miscarriage of justice.
For other errors or irregularities to constitute a miscarriage of justice, they must be material in the sense that the error or irregularity could realistically have affected the reasoning of the jury to a verdict of guilty that was returned by the jury in the criminal trial that occurred.  In this context, “could” is to be understood as meaning “having the capacity to”, and “realistically” distinguishes the relevant assessment of the possibility of a different outcome from a possibility that is fanciful or improbable.  This threshold to establish that an error or irregularity is material must be satisfied by the appellant, but that burden is not onerous.  It does not invite an analysis of whether, but for the error, the accused might or might not have been found guilty. (footnotes in original)
[61]	It has long been understood that there is no rigid formula to determine what constitutes a fundamental error.  It is necessary to consider the real issues in the case.  As the High Court explained in Alford v McGee:
And it may be recalled that the late Sir Leo Cussen insisted always most strongly that it was of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them.  He held that the law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case.  He held that the only law which it was necessary for them to know was so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues are.  If the case were a criminal case, and the charge were of larceny, and the only real issue were as to the asportavit, probably no judge would dream of instructing the jury on the general law of larceny.  He would simply tell them that if the accused did a particular act, he was guilty of larceny, and that, if he did not do that particular act, he was not guilty of larceny.
[62]	The High Court has maintained this essential responsibility of a trial judge, explaining, relevantly:
Discharge of that responsibility will usually involve instruction respecting the elements of the offence and, where appropriate, the principles governing accessorial or joint enterprise liability.  This is not to say that the omission to specify an element of liability that is not in issue in the trial is legal error.
[63]	Similarly, in Kalbasi v Western Australia, Edelman J said:
The same is true of failures by a trial judge to direct on an element of an offence which is not in dispute.  It will rarely, if ever, be a miscarriage of justice for a trial judge not to direct a jury about an element of an offence that is not in dispute in the trial.  (footnote in original)
[64]	In the present matter, the defence raised no contest that the assault on Mr Campbell was anything other than contrary to law and not excused.  Mr Campbell’s evidence in chief did not suggest that he had raised his baseball bat against the intruder before the intruder hit him with the crowbar.  Defence counsel did not cross-examine Mr Campbell to suggest otherwise.  That is understandable.  The defence having contested the identity of the intruder, it is difficult to see how the appellant could have entered the fray with respect to the element of unlawfulness.  On any view, doing so would have been forensically unwise.
[65]	In the context of the issues raised between the parties, the failure to direct the jury with respect to that element cannot be said to have been fundamental.  Whether the failure constituted a miscarriage of justice, thereby engaging consideration of the proviso, then depends on whether it was material.  Notwithstanding the low threshold of materiality, in circumstances where the unlawfulness of the assault was not in dispute, I am not persuaded that the failure was material.  No occasion to consider the proviso arises.  I would dismiss Ground 2 of the appeal.
Whether the sentence was manifestly excessive (ground 3)
[66]	The sole complaint on the appeal against sentence is that the head sentence of four years’ imprisonment was manifestly excessive.
[67]	Manifest excess is a conclusion to the effect that a sentence is ‘unreasonable or plainly unjust’.  The exercise of the discretion reposed in a sentencing judge does not yield a single correct sentence.  However:
A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long or too short is a sentence which has not been imposed according to rules of reason and justice.  It is not sufficient for this court to conclude that it would have come to a different decision to the one reached by the sentencing judge.  The judgment is a discretionary one and what is required is that the sentencing judge must take into account all relevant (and only relevant) considerations in forming the conclusions reached.  Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.  To observe that a sentence is “very heavy” when compared with other sentences is not, without more, to conclude that it exceeded the bounds of the sentencing judge’s discretion.
[68]	At the time of the offences, the appellant was 44 years old.  He was 49 years old at the time of sentencing.  He had a minor, dated criminal history, which the judge disregarded for the purposes of sentence.  He worked as an artist, doing signwriting for small businesses and tattoo design.  He worked with breast cancer survivors free of charge, tattooing nipples to give them some dignity.  He had been a member of the Freemasons, a chaplain and a member of the Knights Templar and Knights Malta.  He has two sons, as described earlier, and a daughter.
[69]	At the time of sentencing, the applicant suffered from complex post-traumatic stress disorder, deep vein thrombosis in acute stage, as well as recurring bursitis left shoulder and elbow.  He had a persistent depressive disorder and anxiety with intermittent psychotic symptoms.  He also suffered from hypothyroidism, chronic fatigue, morbid obesity, a structural heart murmur, chronic anaemia, recurring lower limb cellulitis, a broadening of his oesophagus and GORD (Gastro-oesophageal reflux disease).  He had previously had a myocardial infarction, which has created a heightened risk of additional cardiac events.
[70]	The maximum penalty for arson is 14 years’ imprisonment.  The maximum penalty for serious assault of a person 60 years or more is seven years.  As identified earlier, the judge sentenced the appellant to four years’ imprisonment in respect of Count 1 and three years’ imprisonment in respect of Count 2, ordering that the sentences be served concurrently.  He had indicated a starting point of five years’ imprisonment, which he reduced by a year on account of the appellant’s significant health conditions.  He declined to suspend the sentence.
[71]	The offending, described above, was serious.  The appellant attempted to set fire to a house at the door of the external bedroom where Benjamin resided, using an accelerant.  The fire was extinguished thanks to the actions of Mr and Mrs Campbell.  The appellant hit Mr Campbell, who was 71 years old, on the side of the head with a crowbar and then continued to wrestle with him.
[72]	The appellant’s complaint of manifest excess had two limbs.  First, the appellant submitted that having regard to comparable cases, the sentence was plainly unreasonable.  Secondly, the appellant applied to adduce, on appeal, evidence that he has now received a Notice of Visa Cancellation.  The appellant has lived in Australia since he was six years old.  He is a permanent resident.  He did not appreciate that he was at risk of deportation.  The fact of that risk was not before the sentencing court.
[73]	At the sentencing hearing, counsel for the appellant submitted that notwithstanding that the appellant had gone to trial, there was reason to consider a partial suspension of a sentence of imprisonment, having regard to the appellant’s otherwise good history and the difficulties that he would suffer in prison, particularly on account of his medical conditions.
[74]	As identified earlier, the judge indicated a starting point of five years, but reduced that period by a year on account of the appellant’s health conditions.  The judge indicated that he weighed up whether to ‘suspend that’ which, in context, and given the submission of counsel for the appellant, was presumably a reference to suspending some part only of the period of imprisonment.  The judge resolved that consideration in the following terms:
Under the Corrective Services Act you will be eligible to apply for parole after serving half of that sentence, which is two years.  And I have wavered over that but I think in the circumstances, I should simply impose the sentence and leave it to Corrective Services to consider your position at the halfway mark.  So I have given you a discount of a year off the appropriate sentence.
[75]	In attacking the length of the head sentence, the appellant referred to a number of authorities:
•	R v Silasack was a case of attempted arson.  The appellant corrupted two young men to assist him in firebombing a house, knowing that the house was occupied, including by the defendant’s own child.  Domestic violence was an aggravating feature, in that the appellant directed one of the men to throw a firebomb through the complainant’s bedroom window, in breach of a protection order.  The appellant pleaded guilty to one count of attempted arson, as well as to counts of stealing, fraud, attempted fraud and various summary offences.  He was sentenced to seven years’ imprisonment for the attempted arson.  The Court of Appeal reduced that sentence to five years.  It sentenced the appellant to one year’s imprisonment for each of the dishonesty offences, each to be served cumulatively on each other and on the term of imprisonment imposed for arson.
•	R v Robertson was a case of attempted arson.  The appellant pleaded guilty, having attempted to set fire to the house of her ex-partner, who had taken out a protection order against her.  The flames were extinguished quickly and there was no real risk to any person.  The Court of Appeal reduced the sentence of two and a half years’ imprisonment to two years.
•	R v Francis concerned one count of arson of a motor vehicle.  The appellant was convicted at trial.  The vehicle was destroyed.  The judge sentenced the appellant to four years’ imprisonment, from an effective starting point of four and a half years.  The Court of Appeal reduced the sentence to three and a half years, having regard to the need to take into account pre-sentence custody and the appellant’s good history prior to the breakdown of his marriage.
•	R v Mitchell concerned, relevantly, one count of serious assault of a person more than 60, which occurred in the context of other assaults.  The attack was not premediated and consisted of a single punch to the head.  The complainant suffered a marked diminution in her quality of life as a result, both physical and mental.  The appellant had a history of violence.  The Court of Appeal reduced the sentence for the serious assault count from two and a half years to two years.
[76]	Generally speaking, a granular comparison of sentences in other cases is of limited assistance.  A general review can assist, to some degree, in determining whether a sentence is so far outside the available range as to be unreasonable or plainly unjust.  In the present case, the head sentence of four years was imposed in respect of both the attempted arson and the serious assault charges.  In my view, none of the cases relied on by the appellant, separately or in combination, offers a comparative view warranting a conclusion that on the material before the judge, the head sentence for the totality of the offending in this case was manifestly excessive, either in its length or in the failure to suspend any part of the sentence.
[77]	That then leaves the question of the application to adduce further evidence.  As the respondent observed, this is new evidence in the sense that the applicant’s status as a permanent resident could have been available had thought been given to that issue.
[78]	In R v DCQ, Bowskill CJ explained about the discretion to admit new evidence:
The exercise of the discretion depends on whether it is “necessary or expedient in the interests of justice” to receive the evidence.  But I would not describe the discretion as unfettered.  What must be shown in order to persuade the Court to exercise the discretion to receive the evidence is that, if the new evidence were not received, there would be a miscarriage of justice.  That may be demonstrated where it is established that, if the new evidence were admitted, “some other [less severe] sentence … is warranted in law and should have been passed”.
The principle of finality in litigation, and the wording of s 668E(3) of the Code, requires that the assessment of error in an appeal against sentence be based on the facts which existed at the time of sentence.  Accordingly, for new evidence to be admitted, it must “show what the state of affairs was at the time the sentence was imposed”, or tend to “prove a fact existing when the sentence was imposed”.  Otherwise, the facts would not be relevant to the question of what sentence “should have been passed”. (footnotes in original)
[79]	The appellant’s affidavit explains that his family moved to Australia from England in 1980, when the appellant was six.  He has not been back to England.  He did not raise his citizenship status during his trial as he had no idea there was a risk that his visa would be cancelled, and he would be deported, after sentence.  The first he became aware of this was when he received a Notice of Visa Cancellation while serving his sentence of imprisonment.  He has strong personal ties with Australia.  He has three children, the youngest of whom is six years old.  He is the joint primary caregiver of this child.
[80]	The Notice of Visa Cancellation concludes:
As you no longer have a valid visa, you are now an unlawful non-citizen.  As an unlawful non-citizen you will be subject to immigration detention and removal from Australia.  You will be required to complete your prison sentence before you can be removed from Australia.
[81]	Subsequent correspondence form the Department of Home Affairs invited the appellant to make representations about revocation of the decision to cancel his visa.  The appellant has made representations to that end.  A decision about revocation appears not yet to have been made.
[82]	This Court considered the relevance of the prospect of deportation to the sentencing discretion in R v Norris; Ex Parte Attorney-General (Qld) and R v GBD.  In R v GBD, the Court summarised the relevant principles:
R v Norris; Ex Parte Attorney-General (Qld) is authority for the following conclusions:
(a)	The legislative intent underlying the Migration Act and reflected in s 501CA(6) is that a person who fails the character test and is released from criminal custody would remain in immigration detention whilst revocation of a decision by the Minister to cancel the person’s visa is pursued.
(b)	Street CJ’s conclusion in R v Chi Sun Tsui that “the prospect of deportation is not a relevant matter for consideration by a sentencing judge, in that it is the product of an entirely separate legislative and policy area of the regulation of our society” is “explained by, and limited to, the statutory context in which it arose and the particular issue which the court was addressing – that of the fixing of a non-parole period” under the New South Wales law applicable in that case.
(c)	The prospect of deportation may be a relevant factor to be considered in mitigation of a sentence where it makes the period of incarceration more onerous and also where, upon release, the fact of imprisonment will deprive the offender of the opportunity of permanently residing in Australia, providing that the prospect of deportation or its impacts are not merely speculative.
(d)	Even if the evidence before the sentencing judge does not justify a finding that deportation would harm the offender in either of those two ways, a sentencing judge should take into account when imposing a sentence the relevance of likely deportation on the efficacy of court ordered parole and the potential consequences of that for the offender.
(e)	A sentencing judge should not adjust a sentence or impose a lesser sentence for the purpose of defeating, avoiding or circumventing the operation of the provisions in the Migration Act.
(f)	That principle is not infringed by the adjustment of a sentence to take into account the risk of interruption to an offender’s rehabilitation that immigration detention beyond a fixed release date would entail. (footnotes in original)
[83]	I would not accept that the prospect of deportation of the appellant was ‘merely’ speculative at the time of sentencing.  Section 501(3A) of the Migration Act 1958 (Cth) provides, and provided at the time of sentencing, that the Minister must cancel a person’s visa if satisfied that the person does not pass the character test and is serving a full-time sentence.  Pursuant to s 501(6)(a) and s 501(7), where a person is sentenced to a sentence of 12 months’ imprisonment or more, they have a ‘substantive criminal record’ and thereby do not pass the character test.  The person is left with the facility to make representations for the revocation of the decision.
[84]	I accept that the prospect of immigration detention and subsequent deportation, not certain but the apprehension of which has a reasonable basis, would make the appellant’s incarceration more onerous, having regard to his domestic circumstances and in particular his responsibility for his child.  That prospect existed at the time of sentencing, by operation of s 501(3A) of the Migration Act, as it does now.
[85]	The prospect of the appellant being taken into immigration detention on his release on parole, if realised, would mean that the appellant would not be able to comply with his parole conditions.  It would undermine the rehabilitative efficacy of the parole period contemplated by the sentence.  However, while there is a reasonable basis for thinking that this may occur, it is by no means certain.
[86]	For the reasons discussed earlier, the discretion to admit the new evidence is dependent on whether not to do so would occasion a miscarriage of justice.  In the present case, the only error complained of is manifest excess.  It would seem to follow that admission of the new evidence is dependent on whether it would demonstrate the sentence to be manifestly excessive.
[87]	The applicant’s misapprehension, at the time of sentencing, of the effect of a conviction and custodial sentence on his immigration status may best be described as a misapprehension of law; his visa had not been cancelled at that stage but s 501(3A) operated on its terms.  It is really that legal status that the appellant now wishes to draw to the Court’s attention.  The Notice of Visa Cancellation did not exist at the time, but it is the inevitable result of the legal position at sentencing.  In that sense, there is no new ‘evidence’ being placed before this Court relevant to the position at the time of sentencing, other than the applicant’s explanation for his lack of understanding of the position with respect to his immigration status.
[88]	Even approaching the matter from that perspective, I am not satisfied that the new evidence (or correct understanding of the applicant’s immigration status) would render the sentence manifestly excessive or otherwise unreasonable.  I accept that it makes his time in custody more onerous.  There is a possibility that it will diminish the effect of release on parole.  However, those factors must still be considered together with the totality of relevant considerations, discussed above, not least of which is the seriousness of the offending.  Taking all those matters into account, while an understanding of the consequences for the appellant’s immigration status may have led to a sentence that was lighter in some measure, I cannot say that these matters, now revealed, would render the sentence manifestly excessive.
[89]	It follows that I would decline to receive the new evidence.  I would refuse leave to appeal against the sentence.
Conclusion
[90]	I would order:
1.	The appeal against conviction is dismissed.
2.	Leave to appeal against sentence is refused.
[91]	WILLIAMS J:  I have read the reasons of Bleby AJA and I agree with those reasons and the proposed orders.