GLEESON CJ, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ
Matter No A198/2003
NOEL JEBATHILAKAN ARULTHILAKAN APPELLANT
AND
THE QUEEN RESPONDENT
Matter No A202/2003
CHISEKO MARK MKOKA APPELLANT
AND
THE QUEEN RESPONDENT
Arulthilakan v The Queen
Mkoka v The Queen
[2003] HCA 74 10 December 2003 A198/2003 and A202/2003
ORDER
In each matter:
Appeal dismissed.
On appeal from Supreme Court of South Australia
Representation:
B J Powell QC with R B Harrap for the appellant in A198/2003 (instructed by Harrap & Stokes)
S W Tilmouth QC with I L White for the appellant in A202/2003 (instructed by McGee Solicitors)
P J L Rofe QC with J P Pearce for the respondent in both matters (instructed by Director of Public Prosecutions (SA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Arulthilakan v The Queen Mkoka v The Queen
Criminal law – Murder – Appeals against conviction – Directions to jury concerning statutory murder – Whether trial judge erred in directing jury that presentation of a knife in the course of an armed robbery amounted to an "act of violence" for the purposes of s 12A, Criminal Law Consolidation Act 1935 (SA) – Whether misdirection gave rise to miscarriage of justice – Causation – Whether reference to "but for" test of causation constituted a misdirection – Whether presentation of a knife in the course of an armed robbery could be regarded as a substantial cause of death of deceased – Application of proviso in circumstances where not possible to tell whether jury's verdict of guilty of murder was based on statutory murder or common law murder.
Criminal law and procedure – Trial for murder – Appeals against conviction – Whether High Court should allow appellants to raise for the first time a new point concerning the adequacy of the trial judge's directions on causation as an ingredient of the offence – Proviso – Whether in circumstances of established misdirection on ingredients of the offence of murder the conviction of the appellants was inevitable – Test for application of the proviso.
GLEESON CJ, GUMMOW, HAYNE, CALLINAN AND HEYDON JJ. The appellants were tried jointly, in the Supreme Court of South Australia, before Debelle J and a jury, and convicted of murder, wounding with intent to do grievous bodily harm, and attempted armed robbery. They were sentenced to lengthy terms of imprisonment. A co-accused, Carlos Escalante, pleaded guilty to murder, wounding with intent to do grievous bodily harm, and attempted armed robbery.
Each appellant appealed unsuccessfully to the South Australian Court of Criminal Appeal. For reasons that are presently immaterial, the appeals were heard by differently constituted courts[1]. The appeal to this Court concerns only the convictions of murder, and, as will appear, the grounds of appeal are relatively confined.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Arulthilakan v The Queen [2003] HCA 74
Case
[2003] HCA 74
Decision Date
CaseChat Overview and Summary
The case of *Arulthilakan v The Queen* involved appeals by two appellants, Arulthilakan and Mkoka, against their convictions for murder in the Supreme Court of South Australia. The appeals were heard by the High Court of Australia, following unsuccessful appeals to the South Australian Court of Criminal Appeal. The central dispute concerned the adequacy of the trial judge's directions to the jury regarding the elements of statutory murder under section 12A of the *Criminal Law Consolidation Act 1935* (SA).
The High Court was required to determine two primary legal issues. Firstly, whether the trial judge erred in directing the jury that the presentation of a knife during the course of an armed robbery constituted an "intentional act of violence" for the purposes of section 12A of the Act. Secondly, the Court considered whether the trial judge's reference to the "but for" test of causation amounted to a misdirection, and if the presentation of a knife could be regarded as a substantial cause of death. The Court also had to assess whether any misdirection led to a miscarriage of justice, particularly in light of the possibility that the jury's verdict might have been based on common law murder rather than statutory murder.
The High Court reasoned that the trial judge's directions on statutory murder were flawed. Specifically, the direction that the presentation of a knife in the course of an armed robbery automatically constituted an "intentional act of violence" was considered an error. The Court also found that the "but for" test of causation, as presented to the jury, was potentially misleading in the context of multiple contributing factors to the death. The Court noted that while the appellants had not raised the causation issue in the lower courts, it was a live question for determination. The Court concluded that these misdirections, particularly when considered cumulatively, meant the appellants had not received a trial according to law and that a substantial miscarriage of justice had occurred.
Consequently, the High Court ordered that the appeals be allowed, the convictions be quashed, and a new trial be ordered for each appellant.
Orders
Orders of the court
In each matter:
Appeal dismissed.
Background
Background to the litigation
Each appellant appealed unsuccessfully to the South Australian Court of Criminal Appeal. For reasons that are presently immaterial, the appeals were heard by differently constituted courts[1]. The appeal to this Court concerns only the convictions of murder, and, as will appear, the grounds of appeal are relatively confined.[1]In the case of the appellant Mkoka, R v CMM (2002) 81 SASR 300; in the case of the appellant Arulthilakan, R v NJA [2002] SASC 113.The facts The events giving rise to the charges occurred at Stepney, an inner suburb of Adelaide, in the early hours of Saturday 11 December 1999. The two appellants, with three other men (Carlos Escalante, Raylon Smith and Christian Sinclair), were in a stolen car. They agreed to find someone to "roll" for a mobile telephone. The appellant Mkoka agreed in cross-examination that this meant robbery involving force if necessary. The five men were travelling away from the city, along North Terrace towards its intersection with Fullarton Road. As the car approached the intersection, Sinclair, who was in the front passenger seat, noticed two men, Hillam and Bourne, walking in the same direction along the north western footpath of North Terrace. Hillam was speaking on a mobile telephone. The car stopped a short distance behind Hillam and Bourne. The two appellants and Escalante left the car. The appellant Mkoka was armed with a cue ball in a stocking (described as a "cosh"). The appellant Arulthilakan had with him in the car a knife wrapped in cardboard. That knife came into the possession of Mkoka. Arulthilakan said that he took the knife, still wrapped in cardboard, from his jacket pocket, intending to leave it on the back seat of the car. Mkoka asked if he could take the knife with him. Arulthilakan agreed. Escalante was also carrying a knife. It was not in dispute that this was the knife that was used to stab Hillam and Bourne. The blade of Escalante's knife was about 18 centimetres long. Its maximum width was 2.8 centimetres. Mkoka was aware that Escalante regularly carried a knife, and he knew Escalante was carrying a knife on this occasion. Arulthilakan said that he knew Escalante had a knife, and, of course, he had given Mkoka his own knife. The two appellants and Escalante accosted Hillam and Bourne, who kept walking. They crossed the intersection diagonally towards a hotel, which was closed. The three men followed. Escalante made aggressive demands for the mobile phone. Hillam told the three men to go away. Escalante rushed at him. Hillam punched Escalante and then felt a blow to his side. He looked down and saw that he had been stabbed. Hillam sustained four wounds. Two were relatively minor: to the outside of the left knee and to the left leg. Two were substantial: one to the left chest, and another to the left flank. He sought help from a passing taxi driver, entered the taxi, and asked the driver to take him to hospital. Meanwhile, Mkoka had moved towards Bourne when Escalante attacked Hillam. He dropped the knife he had been given by Arulthilakan and put the cosh in his right hand. He dropped the knife in order to get a better grip on the cosh. He said that "obviously a fight had started and [he] thought [Bourne] might go and help [Hillam] in beating up [Escalante]". Mkoka said Bourne came towards him. There was a struggle between the two. Mkoka said he swung the cosh at Bourne and hit him somewhere in the upper body. There followed a period of grappling between the two, during which Mkoka attempted to use the cosh. At some point in the struggle, Escalante intervened and stabbed Bourne. Mkoka and Bourne fell to the ground, still struggling. Mkoka then struck Bourne, who released his grip. Mkoka kicked him in the upper body. Mkoka said he did not know of the stabbing of Bourne until they were back in the car.
This ground of appeal has not been made out.Conclusion Both appeals should be dismissed. These appeals from judgments of the Court of Criminal Appeal of South Australia[13] present four questions concerning the appellants' convictions of murder in accordance with the Criminal Law Consolidation Act 1935 (SA) ("the Act"). The questions should be answered favourably to the appellants. Their convictions should be quashed and a new trial ordered.[13]In the case of Mr Mkoka's appeal: (2002) 81 SASR 300. In the case of Mr Arulthilakan's appeal: R v NJA [2002] SASC 113.The facts, trial, directions and appeals The background facts are explained in the reasons of Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ ("the joint reasons")[14]. Also explained there are the three bases upon which the charge of murder was left to the jury in the joint trial of Mr Noel Arulthilakan and Mr Chiseko Mkoka ("the appellants")[15].[14]Joint reasons at [3]-[15].[15]Joint reasons at [12]. The only issues argued in this Court concern the directions given to the jury by the trial judge (Debelle J) relating to statutory murder as provided in s 12A of the Act. Most of the relevant directions of the trial judge concerning the requirements of the Act are set out in the joint reasons[16]. Those directions address the three elements appearing in the definition of statutory murder, namely (1) whether the conduct constituted "an intentional act of violence"; (2) whether such conduct was committed whilst the accused were acting in the course or furtherance of a "major indictable offence"; and (3) whether the intentional act of violence caused the death of Mr Matthew Bourne ("the deceased").[16]Joint reasons at [16]-[17]. There was no contest that armed robbery of the deceased and his companion Mr Colin Hillam, the victims of the criminal conduct, constituted a "major indictable offence" attracting the application of s 12A of the Act. Accordingly, the argument in this Court focused on elements (1) and (3) of the statutory elements. Whereas the appellants advanced their complaint about the directions on element (1) before the different benches of the Court of Criminal Appeal that heard their respective appeals, the complaint concerning the issue of causation, raised by element (3), was not argued until the matter reached this Court. Before us, the appellants submitted that there was a material misdirection to the jury concerning the pertinent "intentional act of violence" disclosed by the evidence, relevant to the way the jury should approach this consideration. They also argued that the directions on causation were erroneous. They submitted that each of these misdirections of law, and especially cumulatively, deprived them of a trial according to law and occasioned a substantial miscarriage of justice. Notwithstanding the earlier failure to take precise objection to the points argued in this Court, the appellants submitted that no impediment of a constitutional or discretionary character stood in the way of the determination of the points in these appeals in which the lawfulness of their convictions was still a live question for the decision of the judicature.The issues
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ, GUMMOW, HAYNE, CALLINAN AND HEYDON JJ,