Aidid v R
[2010] VSCA 56
•22 March 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| THE QUEEN | No 788 of 2008 |
| v | |
| SHARMAKE AIDID | |
| and | |
| THE QUEEN | No 789 of 2008 |
| v | |
| MA |
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| JUDGES | ASHLEY and WEINBERG JJA and COGHLAN AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 13 October 2009 |
| DATE OF JUDGMENT | 22 March 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 56 |
| JUDGMENT APPEALED FROM | [2008] VSC 299 (Nettle JA) |
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CRIMINAL LAW – Conviction – Manslaughter by unlawful and dangerous act – Applicants found guilty of manslaughter and a third man guilty of assault – Whether inconsistent verdicts – Whether verdicts unsafe and unsatisfactory – Whether causation established – Whether intervening cause – Whether misdirection as to relevance of deceased’s intoxication vis-à-vis causation – Leave to appeal refused.
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| Appearances: | Counsel | Solicitors |
| For the Crown | Mr D A Trapnell, SC | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Applicant Aidid | Mr C B Boyce | Victoria Legal Aid |
| For the Applicant MA | Mr P F Tehan, QC with Mr M J Croucher | Michael J Gleeson & Associates |
ASHLEY JA:
On 18 June 2008, after a trial in the Supreme Court, a jury found the applicants Sharmake Aidid (‘Aidid’) and MA guilty of the manslaughter of Lionel Norris on 6 December 2006. The jury also found a third man, Abdeweli Mohamed (‘Mohamed’), not guilty of manslaughter but guilty of assault.
On 13 August 2008 the learned trial judge ordered that each of Aidid and MA be detained in a Youth Justice Centre for a period of three years.
Grounds of Appeal
Now the applicants seek leave to appeal against conviction. Although their grounds are differently ordered, the applicants rely in substance upon the same grounds in respect of their conviction applications, namely –
1.The verdict of guilty is unreasonable or cannot be supported having regard to the evidence.
2.The applicant’s conviction was inconsistent with the acquittal of [Mohamed] on the count of manslaughter.
3.The learned trial judge erred in his directions to the jury on the question of causation, and, in particular, the learned trial judge erred as to how the jury might take into account the deceased’s level of intoxication when considering whether the applicant had caused the deceased’s death.
Circumstances generally described
As at 6 December 2006, both Aidid and Mohamed were aged 19. MA was aged 17.
That night, Aidid, Mohamed and a third man went out in a borrowed vehicle. At the Heidelberg Mall, where they went to buy a pizza, they met MA. Later on, five of them set off for home in the vehicle. Two men were dropped off. That left Aidid, Mohamed and MA in the vehicle.
Petrol was needed, so they stopped at a service station on the north side of Bell Street, Heidelberg Heights. Mohamed alone got out of the vehicle. As he was filling the tank, he was approached by the deceased, a 42 year old man.
The deceased was drunk. For some hours that day he had been drinking vodka mixers. He asked Mohamed for a cigarette. In answer to his request for a cigarette, Mohamed told him, as was the case, that he and his friends did not smoke.
The deceased then entered the service station and asked the attendant whether his wife had been there to telephone the police. The attendant said ‘yes’, with some reluctance, and only when the man spoke to him harshly and was aggressive in his body language.
The deceased was in a long-term de facto relationship. His de facto partner, Lisa Maguire, had in fact made a call to the police. After an argument with the deceased earlier in the evening, in the course of which they had abused each other and he had struck her, she had gone to the service station because the deceased had taken her mobile phone. She had been observed by the service station attendant to have injuries to her face and wrist. He had, she said, ‘a hard fist on him’. He was subject to an intervention order at the time because of a past assault.
Ms Maguire said that when she returned to the flat, after making the phone call, she told the deceased that she had rung the police, and she refused to engage in conversation with him. But their argument settled when she gave him money so that he could make a purchase of marijuana for them both. He had left their flat at 11.00pm.
Notwithstanding that their argument had settled, it seems that the deceased remained unhappy about the situation. When at the service station, he made the enquiry about the phone call to which I referred above, and his manner at the time was aggressive.
In the event, after his conversation with the service station attendant, the deceased left the service station premises. As he did so, he gestured towards Mohamed and the applicants, made a threatening gesture – like a pistol – towards them, and shouted abuse. He then walked west along the northern footpath of Bell Street.
Aidid then drove the vehicle out of the service station. He turned right, so as to travel west. According to the applicants and Mohamed, the deceased shouted abuse and threw stones or pebbles at the vehicle as it passed by.
The men decided to confront the deceased. Aidid drove the vehicle off Bell Street, parking it in Eden Street, which is to the north of Bell Street. To do this, he had to turn right into Gotha Street, and then left into Eden Street – the latter of which travels west and then turns south so as to intersect Bell Street from the north.
The deceased may have realised that the men had parked the vehicle. Certainly, he began to cross Bell Street from north to south – that is, away from them.
Aidid and MA ran after the deceased, to confront him. Mohamed followed them briskly.
The deceased turned to face the group.
Perhaps he walked back towards them a few paces.
In the event, the deceased and the other men met more or less in the middle of Bell Street.
Abuse was hurled both ways. According to what Aidid stated in a record of interview, the deceased, who was then holding a can of some alcoholic mixer, said something like ‘bring it on’.
Although the three men, to greater or lesser extent, gave minimalist versions of what then occurred, it appears that a fight broke out between them and the deceased.
A semi-trailer approached, travelling west in the centre lane of Bell Street. The driver gave evidence that he saw the men fighting. He referred to flailing arms and legs, to punches thrown, to pushing and shoving, and to wrestling. When his vehicle was about 100-150 metres away he observed the group break apart. One man headed east. Two others went to the southern footpath. The fourth man crouched on the road, on his hands and knees.
There is no doubt that the two men who went to the southern footpath were Aidid and MA, that the man who was observed to head east was Mohamed, and that the man seen crouching on the road was the deceased.
The driver further gave evidence of observing one of the men on the southern footpath prancing around in a boxing sort of stance, and of the other man just standing there. The man who adopted the boxing stance, according to the driver, was about 5-7 metres from the man on the road.
Although there was a challenge to the witness’s evidence that one of the men had adopted a boxing stance, and although the witness’s description of the man who had allegedly done so was challenged, it was open to the jury to conclude – despite there being some variation in the witness’s language – that the particular conduct had taken place, and that the man in question was Aidid.
The driver observed the deceased get up, run across the road in a northerly direction and get hit by an east-bound vehicle. It seemed to the witness that the man got up and ran north when the man who had adopted the boxer’s stance took a step onto the road.
At the critical time, two motor vehicles – a Volkswagen and a BMW – were travelling east along Bell Street. There were three east-bound lanes. The vehicles were travelling in the middle and kerb-side lanes.
Running north across the east-bound carriageway the deceased passed in front of the Volkswagen. But he was struck by the BMW, which was estimated to have been travelling at 100kph or more.[1] The Accident Reconstruction Team Leader, Sergeant Bellion, opined that even if the speed of the BMW had been 60-70kph, the collision and death would have been inevitable.
[1]Although one calculation gave a value of 131.2kph.
The incident occurred at about 11.30pm. The night was dry and clear. The area was well-lit. The applicable speed limit was 70kph.
The deceased suffered gross injuries, which included his right leg being severed. It was admitted by the applicants and Mohamed that these gross injuries caused death almost immediately.
According to a toxicologist called at the trial, Mr Gerostamoulos, the deceased’s blood alcohol level at time of death was likely to have been around .19, although it could have been somewhat lower – as low as .13. Toxicology also detected cannabis in the deceased’s blood. The witness agreed in cross-examination that the extent of the influence of the alcohol and cannabis on the deceased could not be determined.
After the fatal collision, the applicants and Mohamed fled. They were arrested, interviewed and charged the next day. Records of interview were put in evidence by the Crown. So also were two DVD’s made up from CCTV recordings at the service station.
Neither the applicants nor Mohamed gave evidence or called witnesses at the trial.
In the records of interview –
· Aidid gave a bland account, in which he effectively blamed the deceased for the incident, and in which he minimised any antagonism demonstrated by him and his companions. His response to questions was often argumentative. He stated that when they saw vehicles approaching they specifically told the deceased to get off the road as well. He denied that anybody ‘ever jumped around on the street’. He stated that the deceased had limped off, not run, before the collision occurred. He did not deny that the logical route to MA’s home was for the vehicle to have turned left, not right, out of the service station; but he said that he wanted to drop himself off next. In that way, he explained turning the vehicle right onto Bell Street – that is, in the deceased’s direction of travel.
· MA gave an account in which – (1) he admitted that he and his friends had become ‘angry’, ‘quite upset’, ‘furious’ as a result of the deceased’s conduct, (2) he stated that it had been ‘a silly mistake’ to go back and approach the deceased, (3) he denied that he had run from the parked car towards the deceased, (4) he admitted that there had been a fight, (5) he stated that he had yelled out to the deceased to warn him about the approaching car(s), and (6) he stated that the deceased had run to the north and had been struck by the BMW. He stated also that the deceased had called MA and his friends ‘black dogs’.
Ground 2: Inconsistent verdicts?
Counsel for the applicants first addressed the ground which alleged that there had been inconsistent verdicts. The gist of the argument advanced was that the applicants had been found guilty of manslaughter, in respect of which the unlawful and dangerous act relied upon by the Crown had been battery inflicted by the applicants and Mohamed in concert, whereas Mohamed had been acquitted of manslaughter but convicted of assault. Since, went the argument, all three men had been found guilty of the battery, and since the battery had been said by the Crown to have been a sufficient cause of the deceased’s death because his attempt to cross Bell Street had been a response to apprehension of the infliction of further battery, all three men must logically have been convicted of manslaughter. A merciful verdict did not explain Mohamed’s acquittal on the count of manslaughter. There was a necessary inconsistency in the verdicts.
At trial, the Crown did rely upon the battery as the unlawful and dangerous act. It might have relied upon the battery and the assault constituted by the putting in fear. Had it done so, the putting in fear, subject to what I say below, would doubtless have included Aidid’s actions in stepping onto the roadway and adopting a boxer’s stance almost immediately before the deceased ran north.
In any event, relying upon the battery as the unlawful and dangerous act, the Crown argued that such act was a substantial cause of the deceased running north. He did so because – this was a matter of inference – he had a well-founded apprehension of violence. The prosecutor submitted that the deceased had fled within a matter of seconds after the battery had ended. Having been subjected to violence, it was reasonable for him to fear further violence, particularly when two of the assailants were close by, their presence being apt to heighten his apprehension of violence. Further, the presence of Aidid and MA on the southern boundary of Bell Street explained why the deceased had run north. They presented an apparent barrier to him proceeding south. The truck driver had observed the deceased facing south, then twisting around and going north. It would not have been necessary for him to run across the east-bound carriageway simply to avoid the truck. That he did so was explicable by him having had a well-founded fear of further violence.
The prosecutor dealt with the action of Aidid in adopting a boxer’s stance as follows: Assuming that it had been seen by the deceased – and counsel conceded that the jury might conclude that it could not be sure that the deceased in his drunken state, and after an assault, actually took in what Aidid was doing – such action only made sense in the context of what had preceded it. It meant that the battery remained an important cause of apprehension of further violence. Thus, no question arose of a break in the chain of causation.
In his oral directions, in the context of a ‘separate trials’ direction, the learned judge specifically adverted to the possibility that different verdicts might be reached; and he said that the jury might find a particular accused guilty of assault, but not guilty of manslaughter.
Later in his directions, when dealing with post-offence conduct, his Honour said this with respect to Mohamed:
Plainly you will have to consider the possibility when it comes to … Mohamed that he ran from Mr McKirdy’s truck not because he was conscious of having been involved in an assault, but because he had simply judged that it was time for him to leave. He wished no longer to be party, if at all he were party to what happened to that point, and wanted to be out of harm’s way and away from an involvement in it and, therefore, he turned and ran.
And this, with respect to Mohamed running off before the deceased was struck by the BMW:
… it is … not suggested by the Crown that [Mohamed’s] act of running away at that point is capable of amounting to consciousness of guilt of manslaughter, only of assault.
The Crown case was, of course, that the applicants and Mohamed had acted in concert in assaulting the deceased. The learned judge noted that Mohamed’s counsel had raised several points in that connection which were specific to his situation. Thus:
He contends that you cannot, should not, be satisfied beyond reasonable doubt that there was an agreement to assault, or at least that there was an agreement to assault to which he was party. Put aside the other accused. His position is different because he came later and left earlier. He contends that you cannot be satisfied beyond reasonable doubt that he had an intention at any relevant time that the deceased should be assaulted.
Further, however, it’s contended on his behalf, that even if you could be satisfied that there was an agreement to assault and an assault carried out pursuant to it whilst it was still in existence, and that it was productive of an appreciable risk of serious injury, you cannot be satisfied that it was that which caused the deceased to run north after … Mohamed had left the scene.
He, therefore, it is said, was not responsible for anything which may have caused the accused to run.
Later in his directions, summarising the issue of concert, His Honour said this:
Thirdly, if there was an assault, was the accused man present or had he ceased to be present before the assault was committed? A consideration perhaps of particular importance when you come to consider the case of … Mohamed.
Further emphasising a possible distinction between the position of Mohamed and the applicants, his Honour also said this:
… what was the proximity of each of the accused to the deceased at the point at which he ran? That bears upon I suppose his perception of the risk which was faced.
His Honour, later still, summarised the evidence, and counsel’s submissions. I need not mention any part of that section of his Honour’s charge.
I can understand, the battery having ended at about the time when Mohamed ran away, that it could be said, as a matter of logic, if he was a party to the battery, and if the deceased fled out of fear of further violence, that Mohamed nonetheless remained attached to the consequence of the flight. But the instructions which the learned judge gave to the jury, to which no objection was taken, show that the way was left open for the jury to return verdicts of guilty of manslaughter against the applicants but not guilty in respect of Mohamed, and yet for the verdicts not to be inconsistent.[2] The manner in which the Crown sought to make use of the presence of the applicants on the south boundary of Bell Street, and the actions of one of them – if the jury concluded that the deceased saw such actions – was apt, notwithstanding the Crown’s reliance on the battery as the unlawful and dangerous act, to focus attention on the role of the applicants by contrast with the part played by Mohamed. Particularly that was so with respect to causation, a matter to which the learned judge referred in his sentencing remarks as follows:
The Crown’s case against you, Abdeweli Mohamed was that, although you disengaged from the fight when the semi-trailer first approached, your role in the assault remained a significant or substantial cause of the deceased’s flight north across the road. The Crown argued that the continued presence of Sharmake Aidid and MA on the southern footpath did not break the chain of causation between your initial involvement and the deceased’s flight north into oncoming traffic. But in acquitting you of manslaughter, it is apparent that the jury rejected that contention. Evidently, they considered that the initial assault was not enough in itself to create a well founded apprehension of violence. It required the continued presence of Sharmake Aidid and MA on the southern footpath to have that effect. Hence, the jury found you guilty only of common law assault.
[2]This situation may be compared with that described by Callaway JA in R v Le-Gallienne & Jayetileke [2004] VSCA 223, [18].
Accordingly, I do not consider that the jury verdicts in this case were, as it was put by Gaudron, Gummow and Kirby JJ in Mackenzie v The Queen,[3] ‘an affront to logic and commonsense’.
[3](1996) 71 ALJR 91, 101-102, proposition 5, ‘an affront to logic and commonsense’. Remember also that the applicant bears the obligation of establishing inconsistency.
Ground 1: Were the verdicts unsafe or unsatisfactory?
Counsel’s submissions
Counsel for the applicants submitted that it was not open to the jury to conclude, beyond reasonable doubt, that any physical assault committed by his client (1) constituted an unlawful act; (2) constituted a dangerous act; (3) was causative of the death of the deceased.
As to the first proposition, it was submitted that there was no physical assault, but a rather, insofar as there was any physical contact, it was consensual – ‘an agreed fight’.
Upon the question of dangerousness, counsel submitted that the evidence led for the Crown was incapable of sustaining a conviction beyond reasonable doubt that a reasonable person in the position of the applicants would have realised that to expose the deceased to the type of physical assault alleged would have exposed the deceased to an appreciable risk of serious injury. It was argued for Aidid that a finding of dangerousness could only be sustained if a reasonable person in his client’s position would have realised that by assaulting the deceased he was exposing the latter to an appreciable risk of serious injury by coming into contact with a motor vehicle. No such conclusion could have been reached to the criminal standard. The incident occurred at around midnight. Traffic was relatively light. The deceased had not been much incapacitated by the assault.
With respect to causation, counsel for the applicants argued that it had not been open to the jury to find that any physical assault which took place was a significant or substantial cause of death ‘in the sense that, free of any intervening or supervening cause, such … assault created in the mind of the deceased a well founded apprehension of further violence as to make it natural or reasonable to seek to escape from that area via the means actually employed’.[4]
[4]Written outline of submissions for Aidid, [12].
According to the submissions for Aidid, the reasonable possibility could not be excluded that – (1) the deceased decamped purely or predominantly in response to the arrival of the truck; (2) the deceased decamped in response only or predominantly to the act of one of the previous assailants in stepping back onto the roadway – than not being the cause of the deceased’s apprehension relied upon by the Crown; (3) the reasonable possibility existed that the real and supervening cause of the deceased’s death was the speeding BMW; (4) the deceased’s decision, some seconds after any assault had ended, to run north across Bell Street was objectively unnatural or unreasonable. There were many safer options. Doing what the deceased did, by contrast with the circumstances in Royall v The Queen[5] was not the only viable path of escape.
[5](1991) 172 CLR 378.
Further upon the question of causation, counsel for MA submitted that –
(1) the deceased had been sufficiently composed, after the fight broke up, to pick up his can of drink and wait eight to ten seconds before turning and heading north. That suggested an independent decision, unaffected by the events which had preceded it.
(2) So far as the deceased might have run north because of Aidid’s ‘boxing behaviour’, that was not the physical assault relied on as the dangerous act causing death, it was not MA’s act, and it should be viewed as an act breaking the chain of causation.
(3) The deceased’s decision to head across the road into the path of the BMW was not a reasonable or proportionate response to any physical assault he might have sustained. There had been a number of alternative means of escape.
(4) Had the BMW been travelling at the speed of the Volkswagen, or even at 100kph, ‘there would not have been a collision’.
I should immediately note that two of the propositions advanced for the applicants in this Court were not advanced below. First, that any physical assault was not unlawful because the deceased had consented to fight; and second, that if the BMW had been travelling more slowly, the collision would not have occurred at all. As to the first of them, not only was it not raised, the applicants relied upon self-defence; and as to the second of them, it could have been, but was not, explored in cross-examination of Sergeant Bellion.
Unsafe or unsatisfactory – the necessary approach
The question whether a jury verdict was unsafe or unsatisfactory involves an enquiry of the kind described by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen.[6] On the whole of the evidence, was it open to the jury to be satisfied beyond reasonable doubt that the accused was guilty? That question is to be answered by the appellate court. In most cases a doubt experienced by such a court will be a doubt which the jury should also have experienced. Emphasising the importance of the jury as the ‘constitutional tribunal’ called upon to determine the case, the jury’s verdict is not to be overturned only because the appellate court considers that the jury ‘might’ have had a reasonable doubt about guilt.
[6](1994) 181 CLR 487, 492-495.
An unlawful act?
In my opinion, even if consent could provide an answer to a contention that an act was unlawful, a reasonable jury ought not to have entertained any doubt that such was not the case here. The deceased was intoxicated, and he had acted in a provocative way towards the applicants and Mohamed on several occasions before the altercation in Bell Street. But, evidently in response to the applicants parking their vehicle and approaching him (two of them at a run) he had crossed Bell Street to the south. Even if, as the men got closer, he turned to face them and advanced a few paces, even if he said something like ‘bring it on’, the overall context well-justified a conclusion that this was the response of a cornered man, not a man consenting to a fight – a fortiori one man consenting to a fight with three young, fit, men.
I take leave to doubt, also that consent to fight in a public place could in any event render the fighting lawful. The fight, consensual or not, might well constitute an affray.
A dangerous act?
It is not in debate that the learned trial judge correctly instructed the jury that ‘dangerous’, in context, ‘means that a reasonable person in the accused’s position would have realised that the unlawful act would expose the deceased to an appreciable risk of serious injury’; and that what a serious injury would be, what possibilities of serious injury there were, were to be decided as matters of fact, ‘using logic, common sense and experience’.
Counsel for the Crown had submitted that to assault a man at night in the middle of a major road created an appreciable risk of serious injury. The risk was exacerbated by the deceased having been drunk, in consequence of which he might more easily hit his head on the roadway, or run the greater risk, when caught up in a fight, of being hit by a motor vehicle.
Counsel for MA, in his final address, having stated the way in which the Crown put the issue of dangerousness, said this: ‘This is what is sometimes referred to as a classical jury question. A classical jury question’. Counsel then referred to circumstances which might lead the jury not to be satisfied as the Crown’s case: a wide roadway, well lit, light traffic, good visibility, evidence that the deceased had approached the accused men.
In my opinion, counsel was correct in submitting that the issue was a classical jury question. It was a question which properly admitted of an answer favourable to the Crown. It could not be said, in my opinion, that the jury ought to have entertained a reasonable doubt that dangerousness had been proved. I should add that in my opinion the jury did not have to consider dangerousness by reference to the event which was the immediate cause of death.
Ought the jury have had a reasonable doubt that the unlawful and dangerous act was a cause of death?
In R v Franklin,[7] Brooking J explained so much of the law relating to causation in criminal cases as was necessary for determination of the appeal. His Honour said this:
It is clear that for the purposes of the law of homicide there may be more than one cause of death and that criminal liability may attach to an actor even though the act was not the sole or even the ‘main’ or ‘most substantial’ cause of death. On the other hand, it is also clear that criminal liability will not attach unless the act was a ‘significant’ or ‘substantial’ cause of death. In the last 50 years a good deal of authority has accumulated on the subject, culminating, for Australian purposes, in the decision of the High Court in Royall v The Queen. The issue of the cause of death is of course one of fact for the jury, and while many if not most cases of homicide call for no direction about the principles of law concerning causation there are some which do. The decisions in which those principles are discussed are those in which either the judge’s charge on causation or the jury’s entitlement to find a causal connection is called in question. Putting to one side pure questions of fact (for example, which of two bullets struck the body, or whether death was due to trauma or some unrelated cause), there remains a wide variety of situations in which juries will need assistance from the judge when they come to consider what caused or contributed to the death. For example, where a wound was inflicted by the accused it may be argued that the ‘chain of causation’ has been broken by unskilful medical treatment, or by the victim’s refusal on religious grounds of a blood transfusion. On the other hand, the question may be whether death has been caused by aggressive behaviour of the accused where the victim has jumped from a window or moving car. The possible factual situations are infinite and even the categories to which they may be sought to be assigned are numerous.[8]
[7](2001) 3 VR 9.
[8]Ibid [54] to [56], citations omitted.
The reference by Brooking J in Franklin to the question ‘whether death has been caused by aggressive behaviour of the accused where the victim has jumped from a window’ was a reference to one possible version of the facts which the jury had to consider in Royall v The Queen,[9] a case the judgments in which are not without their difficulties. Later, I will say more about Royall. For present purposes it is enough to note that, subject to one criticism which I must consider in the context of Ground 3, the decision supports the following propositions which the learned judge provided to the jury in the form of an aide-memoire:
[9](1991) 172 CLR 378.
‘Cause’ means: that the unlawful and dangerous act must have been a substantial or significant cause of bringing about death. It need not have been the sole, direct or immediate cause.
For these purposes:
·If an unlawful and dangerous act induces in a victim a well-founded apprehension of physical harm, such as to make it a natural consequence or reasonable that the victim would seek to escape in a particular way, and the victim is killed in the course of escaping in that way, the unlawful and dangerous act may be a substantial cause of the death.
·It is to be expected that persons fearful for their own safety forced to react on the spur of the moment will not always make a sound or sensible judgment and may act irrationally.
·In assessing whether the deceased’s reaction in turning and running across the road was a reasonable response, it is also necessary to have regard to the extent to which he appeared to the accused to be drunk.
·The question must be tested in a commonsense and practical way bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter.
·Consequently, it is necessary to consider and be able to exclude as a reasonable possibility that there was a break in the chain of causation (a break in the link between cause and effect).
·A break in the chain of causation is an event that is not a normal incident of the risk created or not part of the ordinary course of things. (emphasis in original).
In my opinion, the findings of the guilt were not, by reason of the causation issue, unsafe or unsatisfactory. The following considerations are pertinent:
First, I should say at the outset that in my opinion the applicants should not be permitted to rely upon the argument that if the BMW had not been travelling so fast, there would not have been a collision. The trial was not conducted on that basis. It was rather conducted on the basis that the speed of the BMW was such that it broke the chain of causation. Sergeant Bellion had no opportunity to deal with the different contention put on appeal, although some of his evidence suggests that he would not have accepted that contention. What he would have said, however, had the issue been squarely raised, is speculative. The applicants should not be permitted to depart from the case which they conducted at trial.
Second, each of the arguments agitated on the appeal which was repeated by applicants’ counsel at trial – I have referred to them at [50]-[52] – advanced a hypothesis which the jury might have accepted, and so not been satisfied of the guilt of the accused. But that is a long way from saying that the jury ought – or ‘must’[10] – have had a reasonable doubt about guilt by reason of the causation issue. Counsel for the applicants opened up a number of alternative explanations for the deceased doing what he did. The alternatives did not sit comfortably one with the other, and I consider that most if not all of them did not sit comfortably with the evidence. Their only commonality was that acceptance of any one of them (I do not mean to say that the applicants carried any burden of proof) would have meant that the Crown had failed to establish causation. As against the multiple explanations advanced for the applicants, the Crown advanced causation in a relatively simple way. It did depend upon the jury drawing an inference from observed circumstances, but I should say that the jury was well able to draw that inference to the criminal standard.
[10]Libke v The Queen (2007) 230 CLR 559.
In my opinion, then, ground 1 should be rejected.
Ground 3: A misdirection as to the relevance of deceased’s intoxication vis a vis causation?
The learned trial judge, in writing and in oral directions, outlined the concept of causation in the law. He provided the jury with the aide memoire to which I have already referred. There, under the heading ‘[w]hat does “cause” mean?’, he set out the passage reproduced at [62] above. Then, under the heading ‘[w]hat are the issues?’, his Honour posed questions which the jury might ask itself in dealing with the issue of causation (including the issue of intervening cause):
What caused the deceased to run across the road into the path of oncoming traffic:
·Was it that he had been assaulted and had a reasonable and well founded apprehension of further violence?
·If he had been assaulted, how long after the assault ended did he run?
·What was the proximity of the accused to the deceased just before he ran?
·Had all the interaction between the deceased and all three accused ceased before he ran?
·If so, did he reasonably apprehend further violence, or was there something else operating on his mind?
·If he had a reasonable and well founded apprehension of violence, were his actions in running across the road a reasonable and proportionate response to the threat he perceived?
·Consider his state of intoxication and emotional state following his altercation with Lisa Maguire. Was his decision to run across the road unconnected to the actions of the accused?
·Consider Mr McKirdy’s truck, and in particular the lights, speed and noise of the truck. Was its approach the reason he ran across the road rather than the accused men?
Was there a break in the chain of causation:
·If he had a reasonable and well founded apprehension of violence, were his actions in running across the road a reasonable and proportionate response to the threat he faced?
·Consider the speed and the manner of driving the BMW prior to the point of impact.
·Was the speed and manner of driving of the BMW a normal incident of the risk created or not part of the ordinary course of things?
·Did it make any difference?
In his charge, the learned judge spoke to the aide memoire. He said this:
And did it cause the death in the sense that that assault created in the mind of the deceased a well-founded apprehension that he would be subjected to further violence unless he got out of there, such as to make it a natural or reasonable reaction in the circumstances which he faced to get up and run north across the road?
At page 3 of this document there are some reminders that may assist you when you come to judge that question. In the second bullet point, it is to be remembered that persons who are fearful for their own safety and forced to react on the spur of the moment are not always likely to make a sound or sensible judgment. One must allow for the fact that they are in an invidious position reacting, if not instinctively, then rapidly, and allow for that in deciding whether or not what they did was a reaction that was natural or reasonable in the circumstances which they faced.
Next, in assessing whether the deceased’s reaction in turning and running around was reasonable it is necessary to have regard to the extent to which he appeared to the accused to be drunk. In other words, when you ask the question, ‘would a reasonable person in the position of the accused have thought that it was a natural or reasonable reaction for the deceased so much to apprehend further violence as to get up and run north?’, you must take into account the fact that the reasonable person can see this man is to some extent drunk, and drunk people may sometimes react differently to sober people. As I say to you, the question must be judged in a common sense and practical way, bearing in mind you are the jury, and bearing in mind that the exercise which you are required to carry out is to attribute responsibility in a criminal case.
You have got, therefore, to consider two further things. Was the reaction of the accused (sic), even if he feared further violence, so disproportionate to that perception as to break the chain of causation. Did it make it an unnatural reaction or an unreasonable reaction given that, as it is said, there may have been some other safer options open?
That was not all that his Honour said about causation. A little later in his charge, he gave this direction:
The law says, however, that if an unlawful and dangerous act imbues in the victim a well‑founded apprehension of violence such as to make it natural or reasonable that he responds in a particular way and he is killed in that way, then the unlawful and dangerous act has caused that death, even though it was not a direct or immediate cause. There is sufficient causal connection in creating the apprehension of violence to which he reacts in a particular way in a fashion which is reasonable or proportionate to connect the unlawful and dangerous act with the death which results from attempting to escape in that fashion.
Needless to say, however, that if a victim's reaction is quite disproportionate to the unlawful and dangerous act or, in other words, if the reaction is an unreasonable reaction in all the circumstances of the case, the chain of causation is broken, there is no longer then a link between the unlawful and dangerous act or the apprehension of violence and death. It is because of an unnatural, a disproportionate and unreasonable reaction that death is said to have arisen rather than because of the effects of the unlawful and dangerous act.
Consequently, in a case like this where a victim is presented with perhaps more than one option of escape, it is necessary for you, the jury, to decide whether by selecting the mode of escape which he did, he chose a course which was natural, reasonable, proportionate in the circumstances which obtained or whether it was so unnatural and disproportionate to the threat which was perceived to be faced that it was irrational or unexpected.
And, later still –
Did he reasonably apprehend further violence or was there something else operating on his mind? Was it the truck or, as we will come to with defence counsel's arguments, was it because he feared the police were coming and he needed to get away from them or do something else? Did he have a reasonable well-founded apprehension of violence and, if so, were his actions in running across the road a reasonable response or were they so disproportionate, even allowing for his drunkenness, and also for the difficult circumstances in which he was and which he had to react instinctively or immediately, as to break the chain of causation?
For that purpose, final bullet point, consider his state of intoxication, his emotional state.
In this Court, counsel for Aidid submitted that –
The judge directed the jury that the fact of the deceased’s intoxication could only be brought to account on the issue of causation if the applicant was aware of the deceased’s intoxication. The effect of the judge’s direction was as follows: that if the accused was aware of the deceased’s level of intoxication then perhaps otherwise unreasonable or unnatural behaviour by the deceased (if he was sober), calculated to break the chain of causation in its unnaturalness and unreasonableness, will cease to have this effect if the deceased’s behaviour was the natural or reasonable behaviour of an intoxicated person. Put simply: if the deceased acted like a reasonable drunk, and if the applicant knew that the deceased was drunk, then the chain of causation would not break on account of the deceased’s activity no matter how unreasonable that behaviour would be if committed by a sober person.
The error committed by the judge is, it is submitted, to turn to the question of causation into one resembling a test of reasonable foreseeability rather than one of objective fact. More profoundly, however, the direction robbed the deceased’s intoxication of its capacity to break the chain of causation. If a person voluntarily assumes an intoxicated state and acts unreasonably on account of this state, a jury ought be permitted to consider whether the intoxication itself acted as a novus actus interveniens.
The submission for MA was as follows:
It is submitted that, whilst the accused’s perception of whether the deceased was drunk may have been relevant to whether the reasonable person in the position of the accused would have realized that the physical assault would have exposed the deceased to an appreciable risk of serious injury (ie. dangerousness), the perception (and that of a reasonable person in the accused’s position) was irrelevant to the question of causation. Whether the deceased’s reaction was proportionate was a matter to be determined objectively. As counsel submitted (T 254.16-259.17), the impugned direction tends to introduce into causation a concept akin to reasonable foreseeability, which a majority of the High Court in Royall v The Queen (1991) 172 CLR 378 held to be confusing (Mason CJ at 390, Deane and Dawson JJ at 412-413 and Toohey and Gaudron JJ at 424-425; contra Brennan J at 398-400 and McHugh J at 445-451).
Alternatively or additionally, if the accused’s perception of the deceased’s drunkenness is relevant to causation, it is submitted that it is necessary to balance that direction by pointing out that a reasonable person is not drunk and/or that the deceased’s drunkenness may be taken into account in the accused’s favour in determining whether the deceased might have acted unreasonably, disproportionately or irrationally (ss, eg. Royall v The Queen (1991) 172 CLR 378 at 450-451 per McHugh J).
Counsel for the Crown submitted in writing that there was no misdirection. He contended, in part -
The applicants must take their victim as they find him and an intoxicated person is less likely than a sober person to act in a calm and considered manner when responding to the risk presented.
In my opinion, whatever force any part of the submissions for the applicants had as a matter of legal theory, the way in which the trial was conducted means that there was no miscarriage of justice. I will explain that conclusion a little later in these reasons. But first I should say something about the applicable principles, and their application in this case.
There was little reference by counsel to authority. The main reference was to Royall. The case was said to stand for the proposition that, in determining causation in criminal cases, the concept of foreseeability should desirably be eschewed. The learned judge, it was complained, had introduced such a notion.
Royall was a complex matter. It involved a conviction for murder. Both intention and causation had to be addressed in the judge’s charge. The charge was made the more difficult because the Crown relied, in the alternative, upon three factual scenarios, each of which involved the drawing of inferences. The main ground of the leave application was that -
the act or acts of the applicant alleged to have caused the death of the deceased were never properly identified at trial, with the consequence that the jury were never adequately instructed concerning the intent which was required to accompany that act or those acts in order to constitute the crime of murder.[11]
[11]Royall v The Queen (1991) 172 CLR 378, 408 (Deane and Dawson JJ).
Nonetheless, one of the possible factual scenarios was that the deceased, in response to a well-founded and reasonable fear of life-threatening violence at the hands of the applicant, had jumped – rather than having been pushed by the applicant – from a window to her death. The trial judge relevantly charged the jury that –
The third [basis on which the Crown based its case] is that [the victim] … had a well-founded and reasonable apprehension that if she remained in the bathroom she would be subjected to such further violence as would endanger her life and if in those circumstances she sought to escape by jumping out of the window thinking that by so doing she had a better chance of saving her life than by staying inside, and was killed in that fall, the causal link between the acts of the accused and the death are established.
There was no exception to the direction, which said nothing about natural consequences or reasonable response.
The direction was held not to have given rise to a miscarriage.
Each of their Honours in the High Court addressed the question as to the circumstances in which a victim’s response – most obviously, an ‘irrational or unexpected’ act, or an overreaction – should be held to negative causation.
Mason CJ said this:
It seems to me that, in the context of causation, the principle is best formulated as follows: where the conduct of the accused induces in the victim a well-founded apprehension of physical harm such as to make it a natural consequence (or reasonable) that the victim would seek to escape and the victim is injured in the course of escaping, the injury is caused by the accused's conduct. Whether it is necessary for the prosecution to establish also that the mode of escape adopted is a natural consequence of the victim's apprehension for his or her safety does not arise here for the deceased had no means of escape other than jumping out of the window in the situation posited. The question could arise only in circumstances where the victim does something irrational or unexpected, in which event it might be more difficult to establish that the injury sustained was a consequence of the accused's act and not the product of the victim's voluntary act. In such a situation much may turn on the nature and extent of the well-founded apprehension of the victim; and it is to be expected that persons fearful for their own safety forced to react on the spur of the moment will not always make a sound or sensible judgment and may act irrationally.
In the English cases the natural consequence test has been linked to the concept of foreseeability. Because the natural consequence test inevitably invites conjecture about the likelihood of an occurrence, it is impossible to divorce completely the application of the test from the concept of foreseeability. However, in my view, to invite the jury to consider foreseeability would be more likely, at least in the majority of cases, to confuse than to clarify the issue of causation. In many cases, for much the same reason, I see no point in linking that issue to the accused's state of mind. On the other hand, in some situations, the accused's state of mind will be relevant to that issue as, for example, where there is evidence that the accused intended that injury should result in the way in which it did and where, in the absence of evidence of intention, the facts would raise a doubt about causation.[12]
[12]Ibid 389-390.
Brennan J, whose opinion on the point was in the minority, said this:
It is also well established that the death may be held to have been caused by an accused's conduct though the direct or immediate cause of death is a final fatal step taken by the victim where that step is taken in an attempt to preserve himself or herself from physical harm which unlawful conduct on the part of the accused has induced the victim to fear, provided the victim's attempt at self-preservation is reasonable having regard to the nature of the accused's conduct and the fear it was likely to have induced (or, as I would prefer, provided the attempt is proportionate to that conduct and the fear it was likely to have induced): Reg v Pitts; Reg v Grimes and Lee; R v Curley; Director of Public Prosecutions v Daley. In such a case, the taking of the final fatal step is not a novus actus interveniens breaking the chain of causation: Pagett, per Robert Goff LJ. On the other hand, where the victim's attempt at self-preservation is not reasonable (or proportionate), the chain of causation is broken and the victim's death is not treated as having been caused by the accused's conduct. Subject to a qualification presently to be mentioned, the question whether the chain of causation is broken by the victim's taking of the final fatal step is a question of fact to be answered by reference to the objective circumstances. Nevertheless, an accused cannot be held criminally responsible for a death that has been caused in fact by his conduct if the final fatal step taken by the victim was neither foreseen nor reasonably foreseeable. Foresight or reasonable foreseeability marks the limit of the consequences of conduct for which an accused may be held criminally responsible.[13]
and
The question whether an accused whose conduct has led to a death is criminally responsible for the death when the death has been caused by a final fatal step taken by the victim thus depends on the reasonableness (or proportionality) of the victim's attempt at self-preservation and the accused's foresight, or the reasonable foreseeability, of the possibility that a final fatal step might be taken by the victim in response to the accused's conduct.[14]
[13]Ibid 398-399, citations omitted.
[14]Ibid 399.
His Honour thus dealt with reasonable foreseeability – that is, of the reasonable man in the position of the accused – as a lesser alternative to actual foresight.
Deane and Dawson JJ were concerned to keep the issues of intent and causation separate. They said:
If, in a case of fright or self-preservation, the victim over-reacts to the threatening acts or words of the accused, that may be sufficient to break the chain of causation. That proposition is sometimes put in terms of reasonable foreseeability: when the act done in self-preservation is ‘unreasonable’ it negatives causal connexion: Roberts; Hart and Honore, Causation in the Law, 2nd ed (1985), p 332. On occasions foreseeability may play some part in a jury's inquiry into the cause of death but, in directing a jury, it is, for practical purposes, desirable to keep causation and intent separate as far as possible and to avoid the introduction of questions of foreseeability in relation to causation. It is, we think, going too far to say, as the Full Court of the Supreme Court of South Australia did in Reg v Hallett, that ‘[f]oresight by the accused of the possibility or probability of death or grievous bodily harm from his act, though very relevant to the question of malice aforethought, has nothing to do with the question of causation’, but in a fright or self-preservation case, where the question is whether the victim's reaction was an over-reaction and therefore a coincidence, the matter is best dealt with in terms other than those of foreseeability. A direction that the victim's fear or apprehension must be well-founded or well-grounded or reasonable in all the circumstances will adequately raise the issue, as will a direction that the act of escape or self-preservation must be the natural consequence of the accused's behaviour. It is for the jury to decide those questions: see Grimes and Lee. Although it would not necessarily be wrong to do so, there is generally no need to elaborate the requirement of causation which is implicit in these directions, other than to make clear that the prosecution must establish that the accused caused the act of escape or self-preservation upon which the prosecution relies.[15]
[15]Ibid 412-413, citations omitted.
Toohey and Gaudron JJ also stressed the need to keep the issues of intent and causation separate. Upon the latter issue, they said this:
The question whether an act of the applicant caused the death was one to be answered as a question of objective fact. It did not depend upon the applicant's appreciation of the consequences of any act of his. The Full Court of the Supreme Court of South Australia observed in Reg v Hallett:
‘Foresight by the accused of the possibility or probability of death or grievous bodily harm from his act, though very relevant to the question of malice aforethought, has nothing to do with the question of causation.’
Of this observation, Howard's Criminal Law, 5th ed (1990), p 35, n 48 comments:
‘It may well be argued that attempting to divorce causal responsibility from foreseeability of risk is spurious. Everyday attributions of causal responsibility are immediately affected by foreseeability and estimates of risk; probability is a guide to life. ... The position expressed in Hallett is also difficult to reconcile with the fright or self-preservation cases where the long-standing rule is that D is not causally responsible where V's death is attributable to an unreasonable reaction on the part of V or some third party.’
Conceding the force of these comments, we are nevertheless of the opinion that the members of a jury are less likely to be confused if foreseeability is not introduced into the direction on causation and if the jury are told that whether an act of the accused caused the death is ‘a question to be determined by them applying their common sense to the facts as they find them’: Campbell. Consistent with this approach, the jury may be told that, if the victim's reaction to the act of the accused said to have caused the death was quite disproportionate to the act or was unreasonable, the chain of causation was broken.[16]
[16]Ibid 424-425, citations omitted.
McHugh J, like Brennan J, considered that foreseeability does have a part to play in determining causation. ‘Thus:
in a criminal case, a person should not be held liable for a wrongful act or omission which has caused harm in a ‘but for’ sense if that harm was the product of a novus actus interveniens or was not a reasonably foreseeable consequence of the act or omission.[17]
and
The test of reasonable foresight is to be preferred to the ‘natural consequence’ test and the ‘operating cause and … substantial cause’ test.[18]
and
in a case such as the present, an accused should not be held to be guilty unless his or her conduct induced the victim to take action which resulted in harm to him or her and that harm was either intended by the accused or was of a type which a reasonable person could have foreseen as a consequence of the accused's conduct. In determining whether a reasonable person could have foreseen the harm suffered by the victim, any irrational or unreasonable conduct of the victim will be a variable factor to be weighed according to all the circumstances of the case.[19]
[17]Ibid 449.
[18]Ibid 449.
[19]Ibid 451.
It can be said, in the event, that a majority of their Honours were of opinion that mention of foreseeability in the context of causation should be eschewed – mainly because cases of unexpected or irrational reaction would be sufficiently addressed by consideration whether the victim’s fear was ‘well-grounded or reasonable’, and by consideration whether the act of escape was the ‘natural consequence’ of the accused’s behaviour. On the other hand, the judge’s charge had said nothing about foreseeability in the context of causation; and for that reason the opinions of the majority – whilst seriously considered[20] – were nonetheless obiter. Further, I do not understand the majority to have said that mention of foreseeability would necessarily constitute a miscarriage. Finally, Royall was not a case in which the victim was under a disability – self-imposed or otherwise. It thus did not give rise to the concern which motivated the learned judge to frame the aide-memoire as he did.
[20]They predated what the High Court said in this connection in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 150-151 [134].
I turn to the application of the principles which emerge from Royall to the circumstances of this case. The following matters are pertinent.
First, I do not accept the submission for Aidid that the learned judge directed the jury that the fact of the deceased’s intoxication could only be brought to account on the issue of causation if the applicant[s] were aware of it. The general tenor of his written and oral directions was to the contrary. Only in the context of reasonable response in all the circumstances did his Honour link intoxication and the applicants’ awareness of it.
Second, with a single exception, I do not accept that the learned judge turned the test of causation into one of reasonable foreseeability. He only raised awareness of the deceased’s intoxication in one connection. Moreover, in that connection he referred ‘to the extent to which [the deceased] appeared to the accused to be drunk’. That is, he focused upon the actual perception of the accused. Again, one of the questions which his Honour framed for the jury to consider in deciding what caused the deceased to run across the road referred to the deceased’s ‘state of intoxication and emotional state’ in the context of a ‘decision to run across the road unconnected to the actions of the accused’. That invited consideration of causation unrelated to the accused men’s perception of the extent of the deceased’s intoxication.
The exception to which I referred above is this: in his oral directions, having referred to the perception of the accused with respect to the deceased’s intoxication, the learned judge posed a question which invited the jury to consider the state of mind of a reasonable person in the position of the accused.
Third, the direction that the jury, in assessing reasonable response, should have regard to the extent to which the deceased appeared to the accused to be drunk was apt to ameliorate the impact of the Crown’s contention that the applicants must take the deceased with his (self-imposed) disability. The direction left open the possibility, if the jury concluded that the applicants were aware of the extent of the victim’s drunkenness, that the drunkenness itself might be incapable of standing as a circumstance which broke the chain of causation. But if Blaue[21] was applicable – and the contrary was not argued below – the applicants lost nothing.
[21]R v Blaue [1975] 1 WLR 1411.
I earlier said that, regardless of the force of the submissions for the applicants considered in the abstract, the way in which the trial was conducted meant that there was no miscarriage of justice.
I should first refer to the circumstances in which the aide memoire came into existence. Early in the trial, there was discussion between his Honour and counsel. In the course of that discussion, mention was made of the deceased being alcohol affected, and how that might bear upon causation. The Crown’s position was, in substance, that in judging whether or not the deceased’s response had been reasonable and proportionate to a well-founded apprehension of physical harm, what needed to be considered was the reasonable response of a drunken man. That is, the accused men had to take the victim as they found him – a proposition which harked back to Blaue. But his Honour drew back from a direction in that form, plainly with a view of giving the applicants a more beneficial direction. Thus is explained his remark that:
I recognise the force of [the prosecutor’s] submission that as a matter of principle it should not matter whether the intoxication was apparent to the accused or not, but as a matter of authority, there are so many decisions either way as to whether the disability of a victim must be objectively apparent to the offender that I am not confident in the absence of precedents to put it to the jury in this case that inebriation can be taken into account beyond the extent to which it was apparent to the accused.
His Honour having so formulated causation in the first part of the aide memoire, he then formulated the ‘issues’ section in language which focused upon the fact of intoxication. Again, it was a formulation advantageous to the applicants, because intoxication was put in a way which (depending upon the jury’s answer to the question posed) would deny causation in limine rather than only becoming relevant when considering reasonable and proportionate response.
Second, although the applicants (and for that matter Abdeweli) stated in their records of interview that the deceased appeared to be alcohol affected, it would not have prevented their counsel from pressing an argument, had they wished to do so, that their clients had been unaware of the extent of the deceased’s intoxication, for which reason – if it explained his conduct in running to the north – the intoxication should stand as an intervening cause. But neither counsel made reference to his client’s state of knowledge with respect to the deceased’s intoxication, or made a submission which sought to connect the deceased’s intoxication with what was said to be his unreasonable and disproportionate response to the alleged assault, or argued that deceased’s intoxication broke the chain of causation. So far as I can see, the only reference to intoxication in the context of causation was the submission of counsel for Aidid that ‘even drunken men can pull away and decide not to continue voluntarily’ – this being a submission that the deceased may have headed north not in flight, but rather by choice.
Third, in my view it is clear that the failure by counsel for the applicants to say anything about intoxication in the causation context was not a consequence of the learned judge’s directions having stymied reliance upon that circumstance. Rather, there were a series of alternative and arguably stronger explanations for the deceased doing what he did, and being struck by the BMW. I have referred to those alternatives in dealing with Ground 2.
Fourth, it is crystal clear that the learned judge attempted to give, in the passages in his aide memoire and charge upon which applicants’ counsel relied in this Court, a direction favourable to the accused men. I consider it plain that counsel for the applicants so understood it. Only one exception was taken to the pertinent parts of his Honour’s charge. Counsel for Abdeweli submitted that it had not been merely the deceased running across the road that had been so disproportionate or unreasonable as to break the chain of causation, but that he had run without looking; or else had looked and decided to ‘take his chances in getting across the road in front of’ the vehicles. Specifically, no exception was taken to what his Honour had said about the role of alcohol in connection with the issue of causation.
In the circumstances which I have described, the argument raised in this Court by counsel for MA that failure to take exception was explicable by the matter having been earlier agitated and his Honour having ruled upon it, is not persuasive. Such argument as counsel had earlier raised had taken place before his Honour explained why he would give an instruction which departed from the prosecutor’s preferred position.
In the event, I consider that ground 3 should be rejected.
Orders
I would refuse each application for leave to appeal against conviction.
WEINBERG JA:
I have had the benefit of reading in draft the judgment prepared by Ashley JA. I agree with his Honour, for the reasons that he has given, that each application for leave to appeal against conviction should be refused.
COGHLAN AJA:
I agree with the orders proposed by Ashley JA and for the reasons he has given in his judgment.
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