Bardsley v The Queen
[2004] WASCA 251
•3 NOVEMBER 2004
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: BARDSLEY -v- THE QUEEN [2004] WASCA 251
CORAM: TEMPLEMAN J
WHEELER J
WALLWORK AJ
HEARD: 3 DECEMBER 2003 & 3 AUGUST 2004
DELIVERED : 27 AUGUST 2004
PUBLISHED : 3 NOVEMBER 2004
FILE NO/S: CCA 63 of 2003
BETWEEN: DERRIN ELIZABETH BARDSLEY
Applicant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MILLER J
Citation :R v STAPLETON, BARDSLEY & PAPALII
File No :INS 128 of 2000
Catchwords:
Criminal law and procedure - Appeal against conviction - Wilful murder - Whether direction sufficient to identify the real issues arising from prosecution and defence cases and to direct jury on how the law applied to those issues - Extension of time
Legislation:
Criminal Code, s 7, s 8, s 695(1)
Result:
Appeal allowed
Conviction set aside
Re-trial ordered
Category: A
Representation:
Counsel:
Applicant: Mr S D Hall QC
Respondent: Mr P J Urquhart & Ms E L O'Donnell
Solicitors:
Applicant: Laurie Levy & Associates
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Alford v Magee [1952] 85 CLR 437
Amado‑Taylor v The Queen (2000) 2 Cr App Rep 189
Brennan v The King (1936) 55 CLR 253
Butler v The Queen (1989) 44 A Crim R 215
Cameron v The Queen (2004) 142 A Crim R 424
Foster v The Queen, unreported; SCt of SA (Lander J); Judgment No S5699; 11 July 1996
Frost v The Queen (1969) Tas SCt 172
Gavin v The Queen (1992) 6 WAR 195
Gilbert v The Queen (2000) 201 CLR 414
Gillard v The Queen (2003) 78 ALJR 64
Giorgianni v The Queen (1985) 156 CLR 473
Mason v The Queen (1995) 15 WAR 165
McAuliffe v The Queen (1995) 183 CLR 108
Narkle v The Queen unreported; CCA SCt of WA; Library No 6108; 2 December 1985
Narkle v The Queen, unreported; CCA SCt of WA; Library No 6108; 2 December 1985
Pinta v The Queen [1999] WASCA 125
R v Anderson [1996] 2 VR 663
R v Barlow (1997) 188 CLR 1
R v BFB [2003] SASC 338
R v Brown [1963] SASR 190. ,
R v Jellard [1970] VR 802. ,
R v Lock [2002] 1 Qd R 512
R v McDonald [2000] WASCA 336
R v Pascoe, unreported; Court of Appeal, SCt of Qld; CA 242 of 1997; 19 December 1997
R v Piazza (1997) 142 FLR 64
R v Stewart (1995) 3 All ER 159
Remillard v The King (1921) 59 DLR 340
Stapleton v The Queen [2002] WASCA 328
Stuart v The Queen (1974) 134 CLR 426
Warren & Ireland v The Queen [1987] WAR 314
Wilde v The Queen (1988) 164 CLR 365
Case(s) also cited:
Borg v The Queen [1972] WAR 194
Jervis v The Queen (1993) 1 QdR 643
Liberato v The Queen (1985) 159 CLR 507
Markby v The Queen (1978) 140 CLR 108
Miles v The Queen [2000] WASCA 364
Nguyen v The Queen [2001] WASCA 176
R v Salmon [2001] WASCA 270
R v Schmahl [1965] VR 745
Saunders v The Queen (1980) WAR 183
TEMPLEMAN J: I have had the advantage of reading in draft, the reasons to be published by Wallwork AJ. His Honour there sets out the facts relating to this application which I need not repeat.
The prosecution case at trial was that James Wayne Stapleton unlawfully detained and wilfully murdered Cleon James Jackman and that the applicant and Rebecca Tilaima Papalli were also guilty of those offences, by reason of s 7 or s 8 of the Criminal Code. All the accused were convicted of both offences.
In seeking leave to appeal out of time against her conviction for wilful murder, the applicant's formal contention is that the learned trial Judge gave inadequate directions to the jury in relation to both s 7 and s 8. This contention requires an examination of the Judge's charge, to determine whether his Honour explained the relevant law to the jury in a proper manner.
Having heard the application, as it did on 3 December 2003, the Court reserved its decision. In the course of subsequent deliberations, it appeared to the Court that there might be a question about the way in which the trial Judge directed the jury in relation to the facts. I shall refer to this matter in more detail below.
In these circumstances, the Court invited the parties to make any such further submissions they considered appropriate.
The parties did make further submissions. The Court then felt it necessary to reconvene so that the submissions could be addressed in argument. Regrettably, as a result of the Court lists and other commitments it was not possible to reconvene until 3 August 2004, when the Court heard further argument and reserved its decision.
In these reasons, I set out first my judgment in relation to the formal grounds of appeal. I turn then to the subsequent submissions and argument.
The formal grounds: the direction in relation to s 7 of the Criminal Code
In the particulars of her proposed grounds of appeal, the applicant says as follows:
"(a)The learned trial Judge instructed the jury that 'an aider can only be convicted of the offence of which the principal offender is guilty'.
(b)This direction excluded from the consideration of the jury any specific intention the Applicant had when aiding the principal offender.
(c)The applicant has thereby lost a reasonable opportunity of the jury returning verdicts of guilty of murder or manslaughter."
As to (a) above, I accept that the statement that aider can only be convicted of the offence which the principal offender is guilty, is not a correct statement of the law, for the reasons given by Wallwork AJ. However, the applicant has taken the statement out of context. For reasons which I shall set out below, I do not think the jury were misled. I am supported in that view by the fact that none of the experienced counsel who appeared for the three accused sought a re-direction on this point at the completion of the Judge's charge to the jury.
As to (b), I do not accept it was necessary for the jury to consider, directly, the applicant's intention with respect to the fate of Cleon Jackman. The questions for the jury were, first, what the applicant knew or believed Mr Stapleton's intention to be, and secondly, whether she intended to aid him.
In Giorgianni v The Queen (1985) 156 CLR 473, Gibbs CJ said (at p 487):
"No one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender. Wilful blindness … is treated as equivalent to knowledge but neither negligence nor recklessness is sufficient."
Then, in a joint judgment, Wilson, Deane and Dawson JJ said, of aiding, abetting, counselling and procuring (at p 506-7):
"Those offences require intentional participation in a crime by lending assistance or encouragement. They do not, of course, require knowledge of the law and it is necessary to distinguish between knowledge of or belief in the existence of facts which constitute a criminal offence and knowledge or belief that those facts are made a criminal offence under the law. The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence. He need not recognise the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it. It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which he is assisting or encouraging are such, whether he realises it or not, as to constitute the factual ingredients of a crime. If that were sufficient, a person might be guilty of aiding, abetting, counselling or procuring the commission of an offence which form no part of his design. Intent is required and it is an intent which must be based upon knowledge or belief of the necessary facts."
Thus, the relevant intention is an intention to aid the principal offender: not (in this case) an intention to cause death or grievous bodily harm to the victim.
As McPherson JA put it, in R v Pascoe, unreported; Court of Appeal, SCt of Qld; CA 242 of 1997; 19 December 1997):
" … In order to sheet home criminal responsibility to the appellant for (murder) it is necessary for the Crown to prove that the appellant did an act to enable or aid one or more of the other assailants to kill their victim knowing that he or they intended to kill or inflict grievous bodily harm. It was not necessary to prove that the appellant himself had such an intention. It was sufficient that he knew one or more of the others had it; and that knowing that to be so, he did an act to aid or enable him or them to kill the (victim)."
(At p 3: my emphasis)
Similarly, Davies JA said (at p 15):
"To be guilty of murder under s 7(c) it is not necessary that that the aider have the intention of committing grievous bodily harm; it is sufficient that he knows the principal offender to have that intention."
Bearing those principles in mind, I turn to the Judge's direction in relation to s 7. It included the following passages (all at AB 61).
•"knowledge by the aider of the general nature of the offence being committed and of the intention of the principal offender to commit it are essential."
•" … encouragement or assistance in one form or another to commit the offence are minimal requirements before an accused may be regarded as aiding the principal offender."
•" … passive acquiescence without more cannot amount to aiding."
•"the accused is not guilty if he did not know that the principal offender was going to commit the offence."
•"(the accused) must have had knowledge of the principal's intent to commit the crime when he acted."
In my view, those passages contain a correct statement of the law.
The Judge continued (at AB 62) by applying those principles to the prosecution case. He directed the jury that if they were satisfied beyond reasonable doubt that Mr Stapleton intended to kill Cleon Jackman, the applicant and Ms Papalli could be guilty of wilful murder "if each of them knew it was Stapleton's intention to kill the boy, and the other necessary criteria were present …".
A little later, his Honour said, in relation to the applicant and Ms Papalli:
"If each of them knew (Mr Stapleton) intended to do grievous bodily harm they could be guilty of the crime of murder, but only murder, that is, they couldn't be guilty of a more serious crime than that for which Stapleton was convicted. Again, the pre-conditions as to aiding would have to be satisfied.
If you are not satisfied beyond a reasonable doubt Stapleton was guilty of either wilful murder or murder but was guilty of manslaughter in the sense that he unlawfully killed Cleon Jackman but without any intent either to kill or to do grievous bodily harm, each of the woman could be guilty as aiders of the offence of manslaughter but nothing greater than manslaughter if the preconditions I have set out were met, that is, they aided Stapleton in the unlawful killing of Jackman but in the absence of knowledge of any intent on his part to kill or do grievous bodily harm. So you will see an aider can only be convicted of the offence of which the principal offender is guilty. Even then, the preconditions which I have set out must be met in each instance." (my emphasis)
The last of the words I have emphasised are those the applicant complains about in ground (a) of her proposed notice of appeal to which I have referred above. As I have said, I accept that, standing alone, those words do not represent the law. However, from the context in which they were spoken by the learned trial Judge is clear his Honour was directing the jury that they could not convict an aider of an offence more serious than that committed by the principal offender. Indeed, his Honour emphasised the point almost immediately. He said (at AB 63):
"So again I stress, an aider cannot be convicted of any offence greater than that committed by the principal."
In the earlier part of his charge, as set out above, the Judge made plain that the jury could not convict the applicant of wilful murder unless she had intended to aid Mr Stapleton, knowing it was his intention to kill Cleon Jackman. And further, that the applicant could not be convicted of murder unless she intended to aid Mr Stapleton and knew he intended to inflict grievous bodily harm on the boy. Finally, in this context, the Judge directed the jury that if the applicant intended to aid but had no knowledge of any intention on the part of Mr Stapleton to kill or do grievous bodily harm, she could be convicted of "nothing greater than manslaughter".
The Judge had earlier made plain to the jury (at AB 43-4) that each accused was to be considered separately. Although the accused were being tried together:
" … you must bear in mind throughout your deliberations that each is entitled to be given separate consideration; that is to say, for example, you don't say, 'alright, one's guilty therefore the other two are.' You must separately consider the case against each and in relation to each charge, and that’s why I say there are really six separate trials going on."
A little later, the Judge directed the jury about the elements of wilful murder, murder and manslaughter. Having done so, his Honour said (at AB 55):
"It will be apparent to you then that the intention with which the accused acted is of critical importance, and that question is central to this case because intention to kill or to cause grievous bodily harm is a fact which the crown must prove to the standard of persuasion I mentioned, beyond reasonable doubt. …
Intention resides in the mind of the person doing the act. It is not proven as many other acts are proven, by producing it, by calling witnesses who saw it or heard it. You can only prove intention by inference."
Then, (at AB 56) his Honour gave the following direction, which again emphasised to the jury, the need to consider each accused separately:
"It is essential for you to appreciate that before you can convict the accused of wilful murder or murder, you must find the accused had himself or herself – I'm saying himself – the relevant intention. The intention with which an act was done is to be found by way of inference from all the circumstances of the case. All the circumstances must be considered including in particular circumstances personal to the accused. Facts which would distinguish the accused from his fellows in a way that could in your judgment weaken an inference as to intention otherwise based upon inferences found are relevant to that question."
This was a general direction about the way an intention might be discerned. It was therefore applicable to the jury's consideration of intention in relation to s 7 of the Code, to which the Judge referred a few minutes later.
To reinforce those directions, the Judge distributed among the jury an aide-memoire entitled "Verdicts Open", in which it was stated:
"In relation to each of the accused the following verdicts are open:
…
Count 2:
1.Guilty as charged (ie guilty of wilful murder)
2.Guilty of murder
3.Guilty of Manslaughter
4.Guilty of becoming an accessory after the fact to
(a)wilful murder
(b)murder
(c)manslaughter
5.Not Guilty."
The reference to count 2 appears to be an error: the wilful murder charge was contained in count 3. However, it must have been apparent to the jury that the note related to count 3.
The Judge emphasised the point again, in his parting words to the jury before asking them to retire to consider their verdict. His Honour did so after he had completed his charge. He then invited requisitions from counsel. Some matters were raised which persuaded the Judge he should recall the jury so as to clarify certain aspects of the charge. One matter, raised by the prosecutor, was as follows (at AB 123):
"Whilst your Honour, of course, directed the jury that they have to consider each accused separately as if it was one trial against one and deal with their verdicts accordingly there – whilst your Honour left all the alternatives open to the jurors, your Honour didn't go into a great detail about that and your Honour may of course deliberately have done that.
The Crown would submit it may be appropriate in this instance to also say that the jury can actually return a verdict, say, of wilful murder with respect to one accused and, say, a verdict of murder with respect to another or something along those lines."
His Honour replied:
"I made that quite clear, that the verdicts open in relation to each accused were any one of the following. I see your point. You want me to spell it out further, that one could be guilty of wilful murder, one of murder – one could be guilty of wilful murder, one of murder, one of manslaughter, etcetera. I don't think I need to do that. I see your point but I don't think I need to do that."
In the end, however, his Honour did accede to counsel's request. At the conclusion of his further, and final direction his Honour said:
"One final point – I don' think I really need to bring this to your attention but out of an abundance of caution I should say this: on the Verdicts Open sheet, and I'm pretty sure you got the message from me about this, you have got three different accused. There is a very big combination of different verdicts that could be given. For example, in relation to count 2 (sic), wilful murder, one could be guilty of wilful murder, another guilty of murder, murder, one guilty of murder, one guilty of manslaughter. One could be guilty of murder, another guilty of murder, another guilty of manslaughter. You see all the permutations? I'm sure you appreciate that, that all of those permutations were open, but just for clarification and certainty I have been asked to make it clear to you and I do." (AB 129)
It was submitted by counsel for the appellant that the Judge ought to have explained to the jury precisely how they might arrive at each of the possible permutations of verdicts. This is, in substance, the submission which led to the further hearing of the appeal. However, when invited by the Court to formulate an appropriate direction in relation to s 7 of the Code, counsel submitted that the jury should have been told that whether the applicant was guilty of wilful murder or murder would depend on "her own specific intent" (TS 15): that is, whether the applicant intended to assist in intentionally killing Cleon Jackman.
I my view, however, that would not have been a correct direction. As I have noted above, the questions are whether the applicant intended to aid the principal offender; and her knowledge of the principal offender's intention. But the jury would have understood that. It flowed from the direction that they should consider the case against each accused separately.
I refer again to the Judge's directions (at AB 61) which are set out above. These included the following:
"Knowledge by the aider of the general nature of the offence being committed and of the intention of the principal offender to commit it are essential.
The accused is not guilty if he did not know that the principal offender was going to commit the offence."
By these directions his Honour drew a distinction between the principal offender's intention and the aider's knowledge of that intention. The jury should therefore have appreciated that (for example) they might be satisfied beyond reasonable doubt of Mr Stapleton's intention to kill, while accepting that the applicant did not know Mr Stapleton had an intention beyond that of assaulting Cleon Jackman.
The jury were left in no doubt that they should consider the case against Mr Stapleton separately from that of the applicant as an aider: and that it was open to them to bring in different verdicts in relation to each.
I am not persuaded, therefore, that there is any substance to this ground of appeal.
Directions in relation to s 8 of the Criminal Code
The applicant's proposed ground of appeal in relation to s 8 is as follows:
"1.2Directions with respect to section 8 of the Criminal Code
a)The learned trial Judge instructed the jury that the Crown case was that the unlawful common purpose was to carry out an assault on Cleon Jackman.
b)The learned trial judge instructed the jury that the Applicant would be guilty of wilful murder if they determined that this was a probable consequence of carrying out the common purpose.
c)The directions excluded from the consideration of the jury any specific intention the Applicant had when participating in the common purpose.
d)The possibility of the jury returning a verdict in respect of the Applicant that was different to that in respect of the principal offender was effectively excluded by the directions.
e)The Applicant has thereby lost a reasonable opportunity of the jury returning verdicts of guilty of murder or manslaughter."
Section 8(1) of the Code provides:
"When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."
The jury questions raised by s 8(1) are:
(1)whether two or more persons have formed a common intention to prosecute an unlawful purpose, and if so;
(2)whether an offence committed in that enterprise was "a probable consequence".
Question (1) above requires a consideration of the actual intention of the participants. Question (2), does not. It is well settled that it imports an objective test: see Stuart v The Queen (1974) 134 CLR 426 at p 442 per Gibbs J citing Brennan v The King (1936) 55 CLR 253.
That is not say, however, that two or more offenders who are rendered criminally liable under s 8 of the Code must be convicted of the same offence. As Walsh J observed in Mason v The Queen (1995) 15 WAR 165 at p 174:
"It was authoritatively established in Markeby v The Queen (1978) 140 CLR 108 that differing verdicts could be given under s 8. In that case, Gibbs ACJ (at 112) stated:
'When two persons embark on a common unlawful design, the liability of one for acts done by the other depends on whether what was done was within the scope of the common design. Thus, if two men go out to rob another, with the common design of using whatever force is necessary to achieve their objective, even if that involves the killing of, or the infliction of grievous bodily harm on, the victim, both will be guilty of murder if the victim is killed: R v Lovesy [1970] 1 QB 352 at 356. If, however, two men attack another without any intention to cause death or grievous bodily harm, and during the course of the attack one man forms an intention to kill the victim, and strikes the fatal blow with that intention, he may be convicted of murder while the other participant in the plan may be convicted of manslaughter.'
Stephen, Jacobs, Murphy and Aikin JJ all agreed with the comments of the Acting Chief Justice."
Those principles were repeated by Brennan CJ, Dawson and Toohey JJ in R v Barlow (1997) 188 CLR 1 at 13, in the following passage:
"As the operation of s 8 is limited to deeming the secondary party to have done the act or to have made the omission which renders the principal offender liable to punishment only in so far as the doing of an act of that nature or the making of an omission of that nature was a probable consequence of prosecuting their common unlawful purpose, the state of mind of the secondary party may be determinative of the extent of that party's criminal liability in either of two ways. First, it determines the content of the 'common intention to prosecute an unlawful purpose'. That common intention prescribes any restriction on the nature of the act done or omission made which the secondary offender is deemed to have done or made. The restriction may be referable to the circumstances in which it is done, the result it effected or the state of mind with which the principal offender did it. Once s 8 does its work of deeming the secondary party to have done the act or to have made the omission which the principal offender did or made in so far as that act or omission is of a nature covered by the parties' common intention, the state of mind of the secondary party may again require consideration. If, at the time that the act was done or the omission was made, the secondary party had a state of mind which, in combination with an act or omission of the nature which s 8 deems him to have done or made, renders him guilty of a more serious offence than the offence of which the principal offender is guilty, the secondary party is liable to conviction for the more serious offence. Thus the mastermind who, having greater knowledge of the circumstances or the likely result of a minor criminal offence which he and a comparatively innocent principal offender agree to commit, or who has an evil intent not shared by the principal offender, will be liable according to his (the secondary party's) state of mind, although the common plan was merely to commit the minor offence." (my emphasis)
See also, R v Stewart (1995) 3 All ER 159, at p 165, where Hobhouse LJ gave a similar explanation.
More recently, in Gillard v The Queen (2003) 78 ALJR 64, Gleeson CJ and Callinan J referred to the general principle, stated in McAuliffe v The Queen (1995) 183 CLR 108 at 117-8, in a joint judgment of the High Court that:
"a person who intentionally assists in the commission of a crime or encourages its commission may be a party to it."
Their Honours continued:
"The general principle there referred to extends to the possibility that a person who intentionally assists in homicide may be guilty of manslaughter even though the principal offender is guilty of murder. The existence of that possibility assumes a difference in the intentions of the two parties. The secondary party may not know of, or foresee, the principal offender's murderous intention, but may foresee the possibility of the act causing death as an incident of the common design. The essence of the reasoning in the above passage is that, when the secondary party continues to participate in the venture without having agreed to, but foreseeing as a possibility, the act causing death, that party is regarded as intentionally assisting in the commission of a crime. In the present case, if a jury decided that the appellant foresaw as a possibility that Preston would fire the loaded gun at Knowles, and continued to participate with that foresight, then he would be intentionally assisting in the commission of culpable homicide. The level of his own culpability would depend upon whether he foresaw that Preston might act with intent to kill or cause grievous bodily harm.
In our view, there was a viable case of manslaughter to be left to the jury, and the refusal to leave that case was a wrong decision on a question of law."
The second paragraph quoted above shows the distinction between the present case and Gillard (supra). There, the possible verdict of manslaughter was not left to the jury: here, all verdicts were left.
In summary, therefore, the task of the jury in the context of s 8 of the Code, is to identify the common intention of the accused persons. If one has an intention to murder and another an intention only to commit an assault, the common intention will be to assault.
If the death of the victim is a probable consequence of the prosecution of that unlawful purpose, then the person who intended only to commit the assault will be guilty of manslaughter. However, the accused who intended to kill will be guilty of wilful murder.
It follows that an accused rendered criminally liable by the operation of s 8 of the Code cannot be guilty of an offence less serious than the offence which was a probable consequence (viewed objectively) of the implementation of the common intention. But an accused person may be guilty of a more serious offence, if his intention exceeded the common intention.
Applying those principles to the present case, I turn to consider the directions given by the learned trial Judge in relation to s 8 of the Code.
His Honour first directed the jury to the provisions of s 8 of the Code, which he had set out for them in another aide-memoire. He then read s 8(1), with an explanation of the word "deemed".
His Honour then directed the jury that it was a matter for their judgment whether there was a common intention to prosecute an unlawful purpose:
" … and I can direct you that an assault is an unlawful purpose. That is the purpose which the Crown alleges here – an assault on the deceased, to bash him, to give him a hiding, to use ordinary language, to teach him a lesson." (AB 66)
A little later, his Honour continued:
"The Crown then alleges that the offence was committed and in the prosecution of that purpose there was the unlawful killing of the deceased and the Crown says the killing was a probable consequence of the unlawful purpose. If those facts were established to your satisfaction beyond reasonable doubt, each accused is responsible for the killing. Such a killing would be unlawful and it does not matter who struck the fatal blow or blows. If these matters are established, the offence would be at least manslaughter but the Crown case goes further.
The Crown case is that the unlawful killing amounted to a wilful murder in as much as the person who struck the fatal blow or blows intended to kill and at least one of the accused, Stapleton they say, committed the act of wilful murder in as much as he or she did the act which caused death and with an intention to kill."
His Honour went on to direct the jury that if they were satisfied on that point (Mr Stapleton intended to kill) the other accused would be guilty of wilful murder if three facts were established to the satisfaction of the jury. They were:
1.the accused person they were judging had an intention in common with the others to assault the victim;
2.that accused person must have been acting in the prosecution of the purpose;
3.that the 'killing with the intent to kill' was of such a nature that its commission was a probable consequence of the prosecution of the purpose: and the jury were to look at the nature of the purpose …
His Honour continued (at AB 68):
"Now putting it at its lowest scale, if the purpose was merely to give the boy some discipline, you might say the type of blow or blows which caused death were not a probable consequence of the prosecution of such purpose and the participants would not be guilty of wilful murder, so if the purpose was just to give him a belting and send him on his way and one of the accused went beyond the scope of the common purpose by suddenly attacking him in a way which was unexpected and unforseen, the others would not be guilty of wilful murder."
Pausing there, that was in my view, a correct statement of the law. The common purpose could only have been the purpose which all the accused had in common. If that purpose was "just to give him a belting and send him on his way" the accused persons who had that intention would be guilty of no more than manslaughter if, viewed objectively, death was a probable consequence of the prosecution of such purpose. However, if one of the accused had an intention to kill, that would exceed the common intention and would result in that offender being convicted of wilful murder.
The Judge then gave a direction in similar terms in relation to murder, and again, in relation to manslaughter (AB 68-9).
He concluded this section of his charge in the following manner:
" … Finally, applying the principles I have set out for you, the position could be this: each of the accused could be guilty of wilful murder; secondly, each of the accused could be guilty of murder; thirdly, each of the accused could be guilty of manslaughter; fourthly, one or more accused could be guilty of wilful murder and another only guilty of murder or manslaughter and, fifthly, one or more could be guilty of murder and the others only guilty of manslaughter. Of course, they could be not guilty, I suppose, of anything; wilful murder, murder or manslaughter." (AB 69)
As I have noted above, the essence of the applicant's complaint in relation to this part of her application is that:
"The directions excluded from the consideration of the jury any specific intention the applicant had when participating in the common purpose."
In my view, this ground is not made out. A person who is rendered criminally liable by the operation of s 8 of the Code cannot be guilty of any lesser offence than that which was a probable consequence of the prosecution of the unlawful purpose the subject of the common intention.
In other words, the common intention is the lowest common denominator. It is the intention shared by all those involved.
If one accused has an intention which includes, but exceeds the common intention, he will be guilty of a more serious offence. And the Judge directed the jury in those terms. Thus, the jury was directed, in substance, that they should consider the common intention and then consider whether any of the accused had an intention which exceeded it. Hence, his Honour's direction that there were the various permutations to which he referred in the closing part of his charge in relation to s 8. As I have noted above, his Honour re‑emphasised that matter immediately before the jury retired to consider their verdict, after some matters had been clarified.
For these reasons, I am not persuaded that there is any merit in this ground of appeal.
The additional question argued on 3 August 2004
The issues raised by the formal application are quite narrow. As I have noted above, they are concerned with the way in which the trial Judge directed the jury in relation to the law as stated in s 7 and s 8 of the Criminal Code. There is, however, a broader question: whether the Judge gave an adequate direction to the jury to enable them to apply the law to the facts of this case.
In the reasons to be published by Wallwork AUJ, his Honour refers to a number of authorities in which the courts have set out the duty of a trial Judge in directing a jury in this context. As Wallwork AUJ has pointed out, R v Jellard [1970] VR 802 contains the following passage in the judgment of Smith J with whom Winneke CJ and McInerney J agreed, at 804:
"Reference may also be made to what was said by the High Court in Alford v Magee (1952) 85 CLR 437, at p 466; [1952] ALR 101, regarding the duties of a trial judge, and in particular to the following words: '… it my 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 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'."
I respectfully agree with Wallwork AUJ that the Judge did not in this case explain how the law might be applied to the facts of this case, as the jury found them to be.
Although the Judge had told the jury about the possible permutations of verdicts they might reach, I do not think this was sufficient.
Because there were three accused, each giving a different account of significant events, it was, I think, necessary for the Judge to have dealt specifically with the evidence of each accused and instructed the jury as to the conclusions they might reach having regard to their findings in relation to the evidence given by each accused.
In other words, while I consider that his Honour's charge, based on the "Verdicts Open" aid memoire was an appropriate way of explaining the law in relation to s 7 of the Code, it was not sufficient simply to leave it to the jury to work out how they might arrive at the various possible verdicts on the facts as they found them to be.
Although the Judge summarised the Crown case and the submissions made by the applicant's counsel in her defence, I agree with Wallwork AUJ that that was insufficient to discharge the Judge's responsibility of identifying the real issues arising from the Crown and defence cases and directing the jury how the law applied to those issues.
I therefore agree also that there has been a miscarriage of justice in the present case.
Delay in applying for leave to appeal
The applicant was convicted on 25 May 2001. She did not make this application until 5 May 2003. The applicant explained the delay in a document described as an affidavit and which I will regard as such, even though it is unsworn. Essentially, the explanation is that the applicant was advised by her trial counsel, immediately after conviction, that there were no grounds for an appeal. Although the applicant soon learned that the time limited for appealing was 21 days, her counsel did not advise her that there would be any problem in lodging an appeal after the expiration of that period. Her counsel advised her that it would be preferable to await the outcome of an appeal by Mr Stapleton and that, should he succeed, an appeal would be instituted on the applicant's behalf on the following day.
Mr Stapleton's appeal was heard on 7 August 2002 and dismissed on 4 December 2002: Stapleton v The Queen [2002] WASCA 328. However, the applicant took steps to institute an appeal well before then. She says that "a couple of months" after her conviction, she sought legal advice from a sole practitioner although she could not afford to pay him privately. She was advised to apply for a grant of legal aid which she did, on 6 July 2001.
On 18 December 2001, after correspondence between the applicant and the Legal Aid Commission, the applicant was informed that her application for a grant of aid to appeal against conviction had been unsuccessful.
In February 2002, the applicant approached a former employer and friend - Ms Kenworthy - with a request for financial assistance. However, it was not until about October 2002, that Ms Kenworthy said she might be willing to assist the applicant financially. She asked the applicant to obtain three quotes from lawyers before she would agree to fund the appeal.
The applicant approached a Queen's counsel, her former counsel and her present solicitor.
The applicant's present solicitor attended on her at Bandyup Prison on 23 October 2002. He said he would be prepared to act but would need to secure funding before doing so. That funding was not provided until 9 January 2003, when the solicitor obtained a signed costs agreement and a letter of undertaking to pay the costs associated with reading the trial transcript and a preparing an advice on the merits of an appeal against conviction.
By 9 February 2003, the solicitor had read the transcript and formed the view that there had been a misdirection by the learned trial Judge in his charge to the jury. However, it appears that the solicitor did not have the whole of the transcript: a substantial section was missing.
On or about 12 March 2003, counsel provided written advice to the solicitor in which he concurred in the latter's view that there was merit in an appeal against conviction, based upon misdirections to the jury as to the proper application of s 7 s 8 of the Criminal Code. This advice was given despite the incomplete transcript. The solicitor sought, unsuccessfully, to obtain the missing section from various sources including the Office of the Director of Public Prosecutions and the Legal Aid Commission. Eventually, the solicitor was obliged to obtain copies of the missing pages from the Supreme Court.
On 26 March 2003, the solicitor informed the Director of Public Prosecutions that a notice of appeal would be lodged on behalf of the applicant. However, it was a further two months before the application was filed.
It is well settled that the time limited for appealing against conviction by s 695(1) of the Criminal Code "must be taken seriously and every effort must be made to comply with it": Narkle v The Queen, unreported; CCA SCt of WA; Library No 6108; 2 December 1985 per Burt CJ.
In Narkle, the delay was 4½ months. The Chief Justice said that:
"(s 695(1)) contains no express criteria controlling the Court's discretion to extend time and in that sense it can be said that the discretion is unfettered. But that is not to say that it will be exercised as of course. It should only be exercised upon facts shown which in the judgment of the court appear positively to call for its exercise and the onus upon an applicant for extension
of time will of course increase as the time goes by. A delay of 4½ months, as in this case, can only be described as gross and it would be necessary to show very special circumstances indeed to sustain the exercise of this Court's discretion to extend time to that extent. Those circumstances may explain and excuse the delay or they may relate to the grounds of appeal and indeed the latter consideration may become and will become dominant should it appear that there has been a manifest miscarriage of justice. The discretion has always been exercised by this Court having regard to those two broad considerations …"
That principle has been applied consistently over the years. It was applied in Gavin v The Queen (1992) 6 WAR 195, from which I have taken the above quotation from Narkle: see Seaman J at p 201-2.
There is very good reason for insisting on strict compliance with the time limit. If there has been a misdirection resulting in a miscarriage of justice, there will almost inevitably be an order for a new trial. In such circumstances, it is important that the re-trial take place as soon as possible. The crucial evidence in criminal trials is very often the viva voce evidence of witnesses. Although they will no doubt have given statements relatively soon after the events in question, these statements are not admissible: and recollections fade. That is the reason the burden upon an applicant to show cause why an extension of time should be granted will increase as time goes by.
I accept that in the present case the applicant has explained the delay in making the application, insofar as those matters are within her knowledge. It is most unsatisfactory that there is no explanation for the delay between February and October 2002, when the trial transcripts were in the possession of Ms Kenworthy awaiting her decision whether or not to assist financially. However I assume this delay was beyond the applicant's control.
Given my view that there has been a miscarriage of justice and the seriousness of the possible consequences to the applicant, I consider that the delay should be excused and that leave to appeal should be given.
I would allow the appeal and order a re-trial.
WHEELER J: I have had the advantage of reading in draft the reasons for decision of Templeman J and Wallwork AJ. So far as the "original grounds" of appeal are concerned (that is, those formulated by the applicant's solicitors and upon which they sought to rely at the hearing on
3 December 2003), I agree, for the reasons given by Templeman J, that there is no substance in those grounds. I do not therefore need to consider them further.
However, Templeman J and Wallwork AJ would grant the application and allow the appeal on the basis that there was a miscarriage of justice in that the learned trial Judge failed to give an adequate direction to the jury to enable them to apply the law to the facts of this case. I would respectfully disagree with that conclusion for two reasons: the first is that in my view, what is required to demonstrate a "manifest miscarriage of justice" in the context of a case such as the present is more than the mere loss of a chance of acquittal (Narkle v The Queen unreported; CCA SCt of WA; Library No 6108; 2 December 1985, Gavin v The Queen (1992) 6 WAR 195); the second is that I would in any event disagree with the proposition that an error of the kind alleged was made by the learned trial Judge. In order to understand those propositions, it is necessary to look in a little more detail at the history of this application.
History of the application
The applicant was convicted after trial on 25 May 2001 of the wilful murder of Cleon Jackman. She was tried with two others, they being Stapleton and Papalii. The trial ran for over three weeks, and each of the accused was represented by counsel experienced in the conduct of criminal trials.
The applicant deposes that following her conviction she wished to appeal, sought advice from her counsel at trial, and was advised that it was counsel's view that there were no grounds for an appeal. A few days later she learned that the co‑accused Stapleton had lodged an appeal against conviction, and was advised by her counsel that she should await the outcome of that appeal. Stapleton did indeed appeal. His appeal was dismissed on 4 December 2002. He was represented at that appeal by very experienced senior counsel and his grounds of appeal related to the admission of evidence of confessional statements made by him and to the adequacy of the learned trial Judge's direction in respect of statements by his co‑accused which tended to implicate him. His grounds of appeal do not appear to have referred, even obliquely, to the issue which has led in this case to the present applicant's appeal being allowed.
"A couple of months" after conviction, according to the applicant, she sought further legal advice about appealing her conviction and made an application for legal aid which she forwarded on 6 July 2001. There was then some correspondence between the applicant and the Legal Aid Commission seeking clarification of whether her intention was to appeal conviction or sentence, and requesting transcript. She sought information from what was then the Unrepresented Criminal Appellants' Scheme at the University of Western Australia and received an appeal kit from them, which she deposes she was unable to make use of because of her limited education. She was ultimately unsuccessful in her application for a grant of legal aid and was informed of this by letter dated 18 December 2001. She was by then about six months out of time.
One should not expect a person such as the applicant to be able to formulate grounds of appeal in a complex matter unassisted. In addition, it may be accepted that the consideration which the Legal Aid Commission is able to give to such applications is affected by the pressure of other cases. However, it should be noted that by December 2001 there had been no suggestion by any of the trial counsel, or by counsel representing Stapleton on his appeal, or by the Legal Aid Commission in its review of the transcript, or indeed by the applicant herself, of any apparent lack of clarity in his Honour's explanation of the law and the way in which it might be applied to the facts of the present case or of any inadequacy in his Honour's explanation of the applicant's case to the jury. Stapleton's position is of relevance, since it is clear from reading his Honour's direction to the jury that he dealt with the case of each of the accused in the same way.
It appears that between 18 December 2001 and some time in February 2002, the applicant did nothing further about appealing her conviction. However, in February 2002 she approached a former employer to see if that person might assist her financially, and arranged for transcripts to be sent by Legal Aid to that person.
There is no explanation as to what, if anything, occurred during the eight months from February 2002 to October 2002. However, in October 2002 the employer agreed that she "may" be willing to assist financially in relation to an appeal and asked the applicant to approach three lawyers for "quotes". The applicant then approached three legal practitioners, including her present solicitors. Her solicitors met with her former employer on 12 November 2002 and received some transcript, which was incomplete. There was a further unexplained period, before the applicant's present solicitors received a signed costs agreement from the applicant's former employer in January 2003. There was apparently still a problem with missing transcript.
A notice of appeal was filed, dated 5 May 2003, almost two years from the date of her conviction. It is not clear why the application was lodged on that date, since the solicitor acting for the applicant had informed the Director of Public Prosecutions on 26 March 2003 that a notice of appeal would be lodged. That two month delay is unexplained. The absence of transcript does not appear to account for it, since it seems from the applicant's affidavit that the missing portion of transcript was still unavailable as at October 2003.
The appeal
As has been noted by Templeman J, the grounds of the proposed appeal were those which related to the narrow questions of the directions with respect to s 7 and s 8 of the Criminal Code. The appeal was argued in December 2003 on that basis.
Subsequent to the argument in December 2003, the "broader question" of the way in which the learned trial Judge related the law to the facts, and the way in which his Honour directed the jury as to the various permutations of verdicts available, seemed to the Court to be a question worth further exploration. The Associate to the Presiding Judge wrote to the parties seeking further submissions in respect of that issue. In my view, it is clear that the parties did not then appreciate precisely what issue it was which the Court wished to raise. Counsel for the State wrote a letter dated 2 April 2004 seeking further clarification of the question; and it appears from the applicant's further submissions of the same date that they were not directed to the issue which ultimately led to the appeal being allowed.
Principles relating to extension of time
Section 695(1) of the Criminal Code provides that where a person convicted desires to appeal or to obtain leave to appeal, the person is to give notice of the appeal or the application within 21 days of the date of conviction. The same section provides that the time within which notice of appeal or an application for leave to appeal may be given "may be extended at any time by the Court of Criminal Appeal". The statute does not fetter the discretion to extend time.
The authorities which I have been able to discover which deal in most detail with the question of the way in which that discretion should be exercised are those from Western Australian and from South Australia. Although they are broadly similar, there appear to be certain differences, which may be of importance in this case, which may result in part from the different practice in each State relating to the way in which such applications are dealt with.
So far as I can tell, the practice which is usually or frequently adopted in South Australia is that of hearing the application for leave separately from the appeal itself. In this State, the almost invariable practice, and the one followed in this case, is to hear the application for leave and the argument in respect of the appeal together. The latter practice appears to have grown up in part because the common experience of the Court is that delays are generally relatively short, so that in many cases leave is not seriously in issue, and because of the importance of the merits of the applicant's case in determining the question of whether leave should be granted.
In South Australia, it was said in R v Brown [1963] SASR 190 at 191 (per Napier CJ, Millhouse and Hogarth JJ) that:
"The practice is that, if any reasonable explanation is forthcoming, and if the delay is, relatively, slight … the Court will readily extend the time, provided that there is a question which justifies serious consideration. But, whilst that is so, appellants are expected to act promptly, and, in particular, the Court does not countenance the appeal being held over, whilst counsel is obtaining a shorthand note of the summing up and going over it with a tooth comb. Where the accused is represented by counsel the Court takes the view that, 'if counsel has a genuine grievance regarding a summing up he knows substantially what it is as soon as the summing up is finished'.
It follows that where the delay is substantial an application to extend the time is by no means a matter of course. It is not sufficient that there would have been a question calling for serious consideration, if the appeal had been instituted in due time. When the time prescribed by the Act has expired the party convicted has lost his right to appeal, and it is for the Court to say whether, taking all the circumstances into account, it is in the interests of justice that he should be permitted to institute and pursue his appeal."
So far, the position in South Australia and in Western Australia as explained in cases such as Narkle and Gavin appears to be the same. However, where the delay is unexplained or inadequately explained, there appears to be an acceptance in the South Australian cases that the Court will be persuaded that a miscarriage of justice may occur if it is persuaded that "on the merits the appeal would be likely to succeed" (see eg Foster v The Queen, unreported; SCt of SA (Lander J); Judgment No S5699; 11 July 1996 at 6, and R v BFB [2003] SASC 338 per Besanko J at [23] and the authorities referred to in each of those cases). That is, it appears to be assumed that if the appeal is one which would have succeeded if made within time, a miscarriage of justice will flow from the refusal to grant the extension of time. I should note, however, that in the South Australian cases I have reviewed, the delay was in each case much shorter than in the present case. The very frequently cited case of R v Brown [1963] SASR 190 involved a delay of seven months.
The view taken by Templeman J and Wallwork AJ in the present case appears to me to be consistent with the approach adopted in South Australia. My understanding of the Western Australian line of authorities, however, is that there may be occasions on which more must be shown to persuade the Court to grant leave to extend time, than that there is a ground of appeal which would have been successful had the application been made within time. That line of authority begins with Narkle. The passage most often cited in relation to extensions of time appears in the reasons of Burt CJ at p 2, and is as follows:
"This Court has on a number of occasions pointed out that the time limit fixed by s 695(1) of the Code must be taken seriously and every effort must be made to comply with it. The section contains no express criteria controlling the Court's discretion to extend time and in that sense it can be said that the discretion is unfettered. But that is not to say that it will be exercised as of course. It should only be exercised upon facts shown which in the judgment of the Court appear positively to call for its exercise and the onus upon an applicant for extension of time will of course increase as the time goes by. A delay of four and a half months, as in this case, can only be described as gross and it would be necessary to show very special circumstances indeed to sustain the exercise of this Court's discretion to extend time to that extent. Those circumstances may explain and excuse the delay or they may relate to the grounds of appeal and indeed the latter consideration may become and will become dominant should it appear that there has been a manifest miscarriage of justice." (emphasis supplied)
In that case, all members of the Court found that the grounds of appeal lacked substance in any event. However, if all that his Honour had meant by the observations which he made was to convey that either the delay should be satisfactorily explained or that the applicant should demonstrate that an appeal within time must have succeeded, it seems to me unlikely that the expression "very special circumstances" would have been used, since it is difficult to describe a successful ground of appeal as "special"; nor would his Honour, I think, have added the adjective "manifest" to the well understood expression "miscarriage of justice".
In Gavin, Malcolm CJ said (at 198) that "in a case of lengthy delay the court requires exceptional circumstances to be shown before an extension of time will be granted, unless it can be shown that there will be a miscarriage of justice if an extension is not granted" (citing, inter alia, Narkle). This appears to me to suggest that there must be shown either exceptional circumstances, or a miscarriage of justice, whereas I would have understood Burt CJ as regarding a "manifest miscarriage of justice" as one example of an exceptional circumstance. Similar views were expressed by Wallwork J at 219. However, Seaman J at 203 and again at 213, referred to a need to demonstrate a "manifest" miscarriage of justice. As was Narkle, Gavin appears to have been a case in which the Court formed the view that no error had been demonstrated in any event.
So far as I can discover, Narkle and Gavin are the two cases most frequently cited in this Court as establishing the principles relating to an extension of time within which to appeal. I have not been able to discover any case (apart from Cameron, discussed below) in which the delay was both as lengthy and as poorly explained as the delay in the present case. In the majority of cases the delay seems to have been measured in weeks rather than in months, and in the majority of cases there was an explanation for some or all of the period by reason of circumstances partly or wholly outside the control of the applicant. It has not therefore been necessary for the Court to consider what would be the appropriate way of dealing with a case in which the delay was measured in years and in which a very substantial portion of that delay (in the present case, on my calculation, well over a year) was unaccounted for.
There are two further decisions of this Court which may shed some light on the issue, however. The first is R v McDonald [2000] WASCA 336. In a judgment of the Court which cited inter alia Gavin and Narkle, it was said at par [10] that in order to justify the extension it was necessary to show "that there would be a miscarriage of justice if an extension of time were not granted in this case, a miscarriage so significant as to justify an exercise of the discretion to extend time by some seven and a half months …." (emphasis supplied). That observation suggests that more may be required than simply a demonstration that the appeal would otherwise have been successful. However, the application in that case was a Crown application for leave to appeal against sentence, and it may be that special considerations applied.
In Cameron v The Queen (2004) 142 A Crim R 424, there was an application for an extension of time to appeal against conviction. The delay in that case was almost two years following conviction. The applicant had entered a plea of guilty to the offence in respect of which he wished to appeal and had, between his conviction and application for extension of time to appeal against conviction, successfully sought leave to appeal against sentence. At par [45], McKechnie J, with whom Steytler J and Wallwork AJ agreed, expressed the view that: "In my opinion the lengthy and unexplained delay, coupled with the conscious decision of counsel not to raise the issue at an appropriate opportunity before the Court of Criminal Appeal, are of themselves sufficient reason to refuse the application to extend time" (emphasis supplied). For reasons which his Honour outlined, he formed the view that there was no substance in any of the grounds of appeal in any event. This is the only decision which I have been able to locate which appears to rest primarily upon the view that at some stage the length of the delay and the nature of the applicant's conduct giving rise to the delay may justify refusal of an extension of time, independently of any consideration of the merits of the proposed appeal.
As a matter of principle, it is my view that the Court ought to recognise the possibility, which seems to be implicit in the decisions in this State to which I have referred, that there will be applications for extension of time within which to appeal which ought to be refused notwithstanding that the applicant has demonstrated the existence of a ground which would have led to the appeal being successful, if made within time. The broad question in each case must be whether it is in the interests of justice to grant the extension, and I cannot imagine any formula which would appropriately describe the way in which the Court should approach its task.
In each case, considerable weight must of course be given to the undesirability of allowing a flawed conviction to stand, and perhaps especially so where, as here, the offence is a serious one. However, the following considerations suggest to me that it should be recognised that there will be cases in which an applicant should be required, for example, to demonstrate not merely that he or she has lost a chance of acquittal reasonably open, but that there is a substantial possibility that, had the error complained of not been made, the applicant would have been acquitted. One can perhaps envisage cases in which something more, such as a very strong probability of acquittal, should be demonstrated.
In common with civil cases, one can assume in criminal cases that with the passage of time witnesses will become confused and memories will fade. Evidence may be mislaid. In criminal cases, there is more likely to be the further factor of publicity, which can taint recollection. Although both the State and the accused will be affected by the passage of time, the likelihood is that the State will usually be prejudiced to a much greater degree than the accused. That is because of the burden of proving its case to the very high standard required which rests upon the State in criminal cases. It is also because of the practicalities of the usual criminal trial; unlike many civil cases, the majority of criminal trials still rely very heavily upon oral testimony, and in the general run of criminal trials the accused's witnesses will consist of the accused him or herself and perhaps some family or associates with a close interest in the matter, whose memories might be thought unlikely to fade rapidly. By contrast, the State will often rely to a greater or lesser degree, as in this case, on the memories of lay witnesses having no close connection with the events in question and having therefore no particular reason to recall the events with precision indefinitely. Further, juries are less likely than are Judges to be in a position to make allowance, in assessing the demeanour of witnesses, for the inevitable loss of freshness and immediacy which characterises retrials of events which took place some considerable time before.
Importantly, too, criminal trials very frequently involve circumstances which are extremely traumatic for those persons caught up in them and particularly for the victims of the offences and their families. It is not unusual for victims of sexual offences or armed robberies, for example, to be extremely traumatised by the process of giving evidence once, while the ordeal of the victim's family in cases where a person is killed would seem obvious. To revive those issues at a time when one might hope that the passage of time might be beginning to lessen the trauma involved is not to be lightly done. Even where the State's case still appears reasonably strong after the passage of some time, these are factors which may affect the decision whether or not to retry a person whose appeal has led to a conviction being quashed.
In the light of the practical issues discussed above, if all that were required, where delay is very lengthy and wholly or partly unexplained, was for the applicant to persuade the Court that an appeal instituted within time would have succeeded, it would follow that in some cases a person who has a good ground for appealing against conviction, but delays in commencing that appeal, will be in a better position than an appellant who complies with the statutory requirement to commence within 21 days; and, perhaps, the longer the delay the greater the advantage to the applicant. As a practical matter, of course, since most applicants will be in custody until either their sentences expire or their appeals are determined, that consideration is likely to affect only the most serious categories of offences.
Even where such considerations do not apply, if all that were required to demonstrate a miscarriage of justice were that there should be a ground which would have succeeded in a regularly instituted appeal, one wonders what purpose the statutory limit and the existence of a discretion would serve. In practical terms, any person with a meritorious ground of appeal would succeed, whenever the appeal was instituted. A person without such a ground might formally be refused leave, rather than having their appeal dismissed, if attempting to appeal out of time, but there would be no practical consequence ever flowing from a failure to appeal within time.
It is my view that both principle and authority in this State suggest that the Court may require more to be demonstrated than that an appeal ground will be successful, before time is extended. It is also my view that this is a case in which more should be demonstrated.
Extension of time – the present application
Briefly summarised, the factors which in my view point against the exercise of discretion to extend time in this case are as follows:
•the delay was extremely lengthy, being almost two years;
•a period of over 12 months of that delay seems to have been entirely unexplained;
•to the extent that the delay is explained, a significant portion of the explanation apparently relates to difficulties in obtaining transcript, or time spent awaiting the deliberations of the Legal Aid Commission, which this Court has repeatedly said will generally not constitute an adequate explanation (Butler v The Queen (1989) 44 A Crim R 215 at 216 per Malcolm CJ);
•The ground which leads the majority to conclude that the appeal should be allowed is not one raised by the applicant (cf Narkle per Wallace J at p 10, observing that, in respect of a five month delay the applicant "should be confined entirely to the grounds of appeal which he has argued before this Court").
Finally, and in my view importantly in this case, although Templeman J and Wallwork AJ conclude that there is a basis upon which the appeal should be allowed, that appears to me to be upon the basis that it could be said that by reason of the deficiency in the direction to the jury, the applicant has lost a chance of acquittal fairly open to her. In my view, however, the circumstances of this delay call for some assessment of the degree of that chance.
It is my respectful view, that Templeman J and Wallwork AJ do not point to any aspect of the evidence which his Honour did not mention or not sufficiently emphasise, which would have been likely, if brought to the jury's attention in an appropriate way, to have led to a different verdict. Nor, in my view, do their Honours suggest how the different direction, which they believe should have been given, would have given rise to any significant possibility of a different verdict.
In that connection, I would consider it significant, although of course not decisive, that none of those advising the applicant or either of her co‑accused appear to have considered that there was a defect of the kind identified by their Honours. It is my view therefore that, even accepting that the learned trial Judge did make an error of the kind attributed to him, there has not been demonstrated in this case a "manifest" miscarriage of justice of the kind which I would consider necessary to overcome such a lengthy and unexplained delay.
As I have already noted, however, it is my own view that his Honour did not make the error which has been attributed to him. In order to explain that view it is necessary for me to set out very briefly certain of the circumstances of the trial, and to consider his Honour's direction in some little detail.
The issues in the trial
This was, as is apparent from the reasons of Wallwork AJ, a trial in which there were three co‑accused. It appears not to have been in dispute that the deceased, Cleon Jackman, died when in the custody of one or more of them. It seems also not to have been in dispute that his death must have been caused by some act or acts committed by one or more of the accused during the course of their lengthy detention and torture of him.
However, it does not seem to have been clear precisely which acts caused the death. Further, while it seems to have been relatively clear that some identifiable acts were committed by a particular accused – for example, that Stapleton stood on the deceased's back at one stage as if "surfing" – there were disputes in other respects as to precisely what had been done by each accused. Further, there were, of course, disputes as to which of the various identifiable injuries to the deceased had been caused by particular acts which appeared to have been committed.
The earlier course of the pursuit of Cleon Jackman by the three accused, and his capture by them, was the subject of evidence from a number of witnesses, each of whom observed a portion of those events. As to the more serious assaults committed against Cleon whilst he was in the house owned by the applicant, certain aspects of those events were witnessed by members of the household or by friends. There was some conflict in detail between these latter accounts. Some of those witnesses gave evidence which varied between examination‑in‑chief and cross‑examination; and there were reasons to suggest that the evidence of some of those witnesses might be unreliable, at least in part (for example, because of consumption of alcohol at different times). Further, each of the accused gave evidence which to greater or lesser degree was exculpatory of that accused and implicated the others in events which may well have caused Cleon's death.
This was not therefore a case in which there were relatively few, simple, factual disputes. It was essentially the Crown's case that from the outset, the three accused pursued Cleon Jackman with a view, at the least, to capturing him and "bashing" him very badly, and that, once he had been captured, at least Stapleton assaulted him with the intention of causing his death and the two female co‑accused aided Stapleton, either having that intention themselves or knowing that that was Stapleton's intention. In the alternative, a question as to the operation of s 8 of the Criminal Code arose, but that was not the primary focus of the Crown case.
The essential questions for the jury then revolved around issues of intention and purpose. The jury was required to draw an inference, in relation to each of the accused, having regard to the facts which they found, in circumstances where the detail of those facts was important, and there were numerous and significant disputes at the level of detail. It was not a case in which his Honour could simply take the evidence bearing upon one factual issue, analyse for the jury a limited number of competing possibilities, and set out for them the various conclusions which they might or should reach depending upon their views as to the facts. There was a very large number of factual scenarios which the jury might find, depending upon which aspects of which evidence the jury accepted.
Further, in relation to each of the accused the verdicts which were open were those of wilful murder, murder, manslaughter, accessory after the fact, or of acquittal. There was theoretically a very large number of different combinations of verdicts available to the jury. Some of those were no doubt open as a matter of theory only; for example, it seems most improbable that a jury could conceivably acquit all three completely. However, a very significant number of combinations was realistically open. It was not therefore a case in which the trial Judge could simply pick out the few likely combinations of verdicts and deal clearly with them.
His Honour's direction
His Honour's direction began a little before noon and ended at 4.18 pm. With a break for lunch and a short break mid‑afternoon, it took approximately three hours. The very first point which his Honour made was that there were, in effect, six trials before the jury (three of these related to charges of deprivation of liberty in relation to which the accused had made admissions, and need not be further mentioned here). His Honour put it colloquially and explicitly to the jury from the outset that they were not permitted in respect of any of the accused to say, in effect, "All right, one's guilty, therefore the other two are".
His Honour then directed the jury in the standard way as to matters such as the onus and standard of proof and in relation to general matters of fact finding. These he from time to time illustrated by reference to the evidence. For example, in explaining to the jury that they could accept part of what a witness said and reject part of the same witness' evidence, he noted that they could hypothetically accept the evidence of a named witness about what happened when that witness was sober, but might reject the same witness' evidence as to what happened once he had become intoxicated.
Once his Honour came to deal with the elements of the various offences which were open to the jury as verdicts, he again from time to time referred to matters of evidence which illustrated for the jury what he meant. For example, in dealing with the question of accessory after the fact, he noted that each of the two female accused had said that Stapleton had said to them "I finished him off" which his Honour explained would appear to be a clear admission that he had killed Cleon, and his Honour then went on to explain the sorts of things which, if done by the two women after that admission, might make them accessories after the fact.
When his Honour came to talk about s 7 of the Code and the question of aiding, which was central to the Crown case, he gave the jury a clear and unexceptional definition of what constituted aiding. Importantly, his Honour went on then to say to the jury, "Let's look at this case and apply those principles". His Honour did so, explaining if, for example, they were satisfied beyond reasonable doubt that Stapleton delivered the blows to Cleon which caused his death and that at that time he intended to kill Cleon, then each of the two women could only be guilty of wilful murder if each of them knew it was Stapleton's intention to kill and the other necessary criteria, which his Honour had already outlined, were also satisfied in relation to acts done by them which could constitute aiding. His Honour went on to deal with the question of "common enterprise" and explained that question to the jury both as a matter of law, and illustrating it by reference to the facts. In particular, his Honour explained to the jury that if the common purpose was merely to give Cleon some discipline, they might well say that the type of blow or blows which caused death were not a probable consequence of the prosecution of that purpose. His Honour contrasted that with the purpose which the Crown alleged. His Honour returned to that issue on more than one occasion.
In passing, I should note that it is accepted that in putting the Crown's case to the jury his Honour twice erred in suggesting that the common purpose was from the outset to kill Cleon. However, no issue is taken with that error since, to the extent that it might have affected the jury, it could only have led them to believe that they had to find a common purpose to kill from the outset before they could convict any of the accused by reason of s 8 of the Criminal Code. That put the burden on the Crown substantially higher than was actually the case.
After dealing with other matters which are not an issue here, his Honour turned to the circumstantial evidence which was relevant to the questions of intention and to the questions of common purpose. They included the fact the deceased had been "causing havoc" at the house owned by the applicant, a reference to what the applicant had said about the deceased prior to the events in question, and to the fact that Stapleton was brought up to Perth by the applicant to "sort out" the deceased. His Honour referred to the circumstances of the capture of the deceased, and to the fact that the applicant had on her own admission encouraged Stapleton to run the deceased over while they were pursuing him, and to the fact that she "smacked him in the face" when he was captured. His Honour suggested the jury should make up their own minds about what she said to him at that time. His Honour asked the jury what those circumstances told the jury about the purpose for which the deceased was pursued and captured.
His Honour turned to the circumstances at the house and asked the jury, "Do they tell you of an intent to kill him or an intent to do grievous bodily harm … or are the circumstances equivocal? Is there a reasonable hypothesis open that they didn't intend things to go that far?" Although at this point, his Honour in effect, lumped the three accused together, it is clear from his Honour's later remarks that he was posing for the jury the sorts of questions that they had to ask in relation to each accused. He later dealt with facts relating to each of the accused individually, in the way I shortly describe.
Before summarising the case of the Crown and the case for each of the accused, his Honour advised the jury that that was what he was going to do and went on, importantly, to say that it was his obligation to, "Just give you a summary from an objective, clinical viewpoint as to what the case is against each … What is the evidence relied upon in relation to each accused?" Those introductory remarks are of importance, in my view, since it seems to me that the conclusions of Templeman J and Wallwork AJ rest in part upon a view that it is not sufficient for a trial Judge simply to recite the contentions of each side to the jury, or simply to remind the jury of what has been said by each party. The introductory remarks by his Honour at this point appear to make it clear that his Honour was in effect saying to the jury that he was extracting those matters relied upon by the Crown and by each of the accused which seemed to him to be of most relevance to the central issues which the jury had to decide.
His Honour then referred, although briefly, to the evidence upon which the Crown relied in relation to each of the more significant of the acts said to have been carried out by each of the accused. In particular, in relation to the applicant, his Honour identified (at p 99 AB) ten factors to which the Crown pointed as indicators of her intention. His Honour not only referred to those factors but very briefly referred to factual disputes which might be thought to be relevant to them. For example, his Honour noted that the Crown asserted that the applicant was present when Stapleton stood on the deceased's back. His Honour also noted that her evidence was that she made a feeble objection to the effect that Stapleton would break his ribs, and also noted that it was Stapleton's evidence that she said nothing of the kind.
Having summarised the Crown's case in that fashion in relation to each of the accused, his Honour then summarised the case for each of the accused. In relation to the applicant, it was put on her behalf effectively that she accepted that the events of the time in question revealed a "tale of evil" but that there were "degrees of evil". His Honour pointed to problems which the applicant alleged existed in relation to the detail of the evidence against her. For example, and apparently importantly, one witness had said that she had struck the deceased "twelve or more times" with something similar to a bat, but in cross‑examination had agreed that she had hit the deceased quite lightly. Alternative explanations advanced as to various matters which the Crown pointed to to implicate the applicant, were discussed by his Honour for some pages.
It was alleged that Stapleton had admitted in the car that "I or we killed Cleon". It was said that the person who had pushed the wad of paper into the boy's mouth and put the bags and the gags on him while he was dying, was Stapleton. It was alleged that the boy was the victim of a wilful murder committed by all three accused. Dr Margolius had said that the causes of death were possibly asphyxiation, internal bleeding, shock, bruising and trauma to the body.
Stapleton had admitted putting the bags over the boy's head but it was contended on his behalf at the trial that at that time the boy was already dead. Stapleton said that when he had come back from the petrol station the boy was deceased.
One of the two boy witnesses had originally spoken of twenty shovel hits in a statement to the police. In evidence that was reduced to six.
One of the matters left to the jury was the question of whether it had been proven that death was a probable consequence of the decision to catch the boy and give him a hiding.
Counsel for Stapleton submitted that Stapleton had been taunting and humiliating the boy but not intending to cause him really serious harm. His statement afterwards that "I" or "We killed him" did not mean that Stapleton was admitting to wilfully murdering the boy. It was alleged that there was no clear evidence of who had done what to the boy.
It was contended on Stapleton's behalf that he had not intended to kill, but to scare and humiliate the boy; that there had been no plan with death as a probable consequence. Stapleton had admitted hitting the boy but not intending to kill him or to do him serious harm. Stapleton said that when he went to get the petrol everything was over. The applicant had been hanging out the washing. Counsel for Stapleton told the jury that the applicant had anger against the child and had had cause for anger.
It was submitted on Stapleton's behalf that the applicant's suggestion that the boy was "ok" when Stapleton went to the service station but that Stapleton had returned and "lost it" should not be accepted.
It can be seen from the above allegations that this was a most complicated trial.
The applicant's case at trial
A 17 year old witness had said that the applicant had hit the deceased quite lightly with a bit of wood. It could have been a bit of doweling. It was said on the applicant's behalf that she had hit the boy with a 60 centimetre piece of doweling.
It was submitted on the applicant's behalf to the jury that she was clearly guilty of deprivation of liberty. It was admitted that the applicant had asked Stapleton to run the deceased down prior to catching him.
With respect to the Crown case that the plan had been to catch and bash the deceased, it was submitted that there was no evidence at all that there had been a plan to bash him and do him damage. They had wanted to catch the deceased but there had been no plan in the vehicle as to what would happen when they caught him. It was submitted that the applicant had said to the witness Warren that she wanted him at the house to catch the deceased and take him to the police; that the battens in the house had been for the protection of the applicant. She had been a woman seeking to ensure that her house was not invaded.
It was conceded on the applicant's behalf that she had wanted to catch the boy and probably hit him. However, that was a far cry from wilful murder. Clearly the applicant had wanted to catch the boy and take him to the police. It was conceded that she had slapped him on the face when he was caught. It was pointed out that Stapleton had said that the applicant had calmed down. It was submitted on her behalf that there was no evidence that she had done anything particularly harmful to the deceased after that. It was suggested that "She tapped him on the bottom with doweling". There had been little evidence of any bruising to the buttocks area. It was submitted on her behalf that this was the extent of her physical attack on the deceased.
With respect to the proposition that the applicant had aided Stapleton to kill the deceased it was conceded that she had been involved in the chase and the kidnap. However, it was denied that it had been in the applicant's mind that the deceased would be beaten in a way to endanger his life. The deceased had been chased "in a public way". It had not been a pre‑planned event in the sense of a premeditated murder. There had been a plan to get him and teach him a lesson but not in circumstances where it was probable he would be killed.
It was submitted that after the boy had been taken to the house Stapleton had obtained the rope and tied him by the hands. The deceased had not been "hog tied" when he was hit by the applicant. He was hit lightly by her on the bottom. It was conceded that when the deceased had been "hog tied" the applicant had played a role in that because she had got the rope from her bag. However, it was submitted that that was the extent of what she did in this regard.
When Stapleton had "surfed" on the deceased it was submitted that the applicant had told Stapleton to get off. He had done so, although Stapleton had denied this had occurred. It was submitted that the applicant's evidence had suggested she had no desire to see anything more than the deceased being scared.
With respect to the applicant's relationship with Stapleton, it was submitted that she had trusted him and there had been nothing to suggest that before this occasion he had been other than sensible.
It was submitted that the applicant's involvement had been minimal; that Stapleton had come back from the petrol station and had then "lost it"; that Stapleton had told the police "I know I was by myself". That was how the deceased had died. Stapleton had confessed to putting paper down the boy's throat and a ligature around his face. These were possible causes of death, as were the plastic bags which had been put around the boy's head and tied with a tape. It was submitted that Stapleton had also choked the boy; that when he had killed the boy he had been alone.
It was conceded on the applicant's behalf that she was guilty of abduction and that by assisting in the disposal of the deceased's body she had been an accessory after the fact. However, that was not wilful murder.
On appeal
On appeal it was conceded that the application for leave to appeal had been made nearly two years after the date of the conviction. Because of the lapse of time in lodging the notice of application for leave to appeal it was necessary for the applicant to show that there was a "manifest miscarriage of justice.": Narkle v The Queen, unreported; CCA SCt of WA; Library No 6108; 2 December 1985 per Burt CJ at 2; Gavin v The Queen (1991) 6 WAR 195 at 203 per Seaman J.
It was submitted for the applicant that the effect of the directions of the learned trial Judge at the trial, had been to effectively preclude the possibility of a murder or manslaughter verdict for the applicant and that therefore the applicant had lost a real opportunity of being convicted of one of those lesser offences.
The applicant was sentenced to life imprisonment with a minimum of 18 years. There would obviously be a manifest and substantial miscarriage of justice if the applicant's contentions are correct.
It was submitted for the applicant that the effect of the medical evidence had been that the deceased could have died either from the beating he had received or suffocation caused by the objects which had been applied to his head; that the Crown had not suggested that either the applicant or Papalii had committed the acts which had caused the deceased's death.
It was submitted that the Crown case came down to an allegation that Stapleton had killed the deceased by placing of wads of paper down his throat, ligatures around his mouth and plastic bags over his head. There was some medical evidence which suggested that the victim was still alive at that point of time. The Crown relied upon that to say it was Stapleton's acts which were the immediate cause of the death. Stapleton had said that the victim was already dead at that point of time.
The Judge's Directions to the Jury
Early in his directions the learned Judge directed generally concerning the intent required for wilful murder and murder. In my view, those directions were primarily concerned with the principal offender. They were the standard directions in a wilful murder trial. Although his Honour referred to the accused persons [ AB56C ] he was not dealing with the questions arising with reference to s 7 and s 8 of the Code until he came to the question of unlawful purpose at [AB56D] and following.
His Honour then dealt with the question of the liability of an accessory after the fact. Following that he came to the questions arising in connection with s 7 of the Code [60E].
Directions on aiding
The learned Judge instructed the jury concerning the subject of aiding as it applies in the criminal law. His Honour said that knowledge by the aider of the general nature of the offence and the intention of the principal offender was essential, as was encouragement or assistance, before a person could be convicted as an aider. Passive acquiescence was not enough. He said an accused was not guilty if he did not know that the principal offender was going to commit the offence. There must be an intention to encourage and knowledge of the principal's intent to commit the crime when he acted. The aider need not be in concert with the principal. An aider could play a dominant or equal role, or a merely subsidiary role.
His Honour told the jury that if they were satisfied beyond a reasonable doubt that the accused Stapleton had delivered the blows to the deceased which caused his death and at the time of killing he had intended to kill the deceased then each of the two women (one of them being the applicant) could only be guilty of the crime of wilful murder if each of them knew it was Stapleton's intention to kill the boy and the other necessary criteria were present.
His Honour then dealt with the way the women could be guilty of murder in the event that Stapleton had intended to do the deceased grievous bodily harm when he struck the deceased. His Honour said that if each of the two women who aided Stapleton in the attack made on the boy knew he intended to do grievous bodily harm they could be guilty of the crime of murder, "But only murder, that is, they couldn't be guilty of a more serious crime than that for which Stapleton was convicted. Again the pre‑conditions as to aiding have to be satisfied."
His Honour said:
"If you are not satisfied beyond a reasonable doubt Stapleton was guilty of either wilful murder or murder but was guilty of manslaughter in the sense that he unlawfully killed Cleon Jackman, but without any intent either to kill or to do grievous bodily harm, each of the women could be guilty as aiders of the offence of manslaughter but nothing greater than manslaughter if the pre‑conditions I have set out were met, that is, they aided Stapleton in the unlawful killing of Jackman but in the absence of knowledge of any intent on his part to kill or to do grievous bodily harm. So you will see an aider can only be convicted of the offence of which the principal offender is guilty. Even then the pre‑conditions which I have set out must be met in each instance."
It was submitted for the applicant that it was a non‑direction to tell a jury that an aider could only be convicted of the offence of which the principal offender was guilty because if a principal offender was guilty of wilful murder, an aider could be either guilty of murder or guilty of manslaughter.
A little further on in the directions, after having discussed how the jury could approach the situation if it was one of the women who actually killed the deceased, his Honour said:
"So again I stress, an aider cannot be convicted of any offence greater than that committed by the principal. Here of course the Crown contends it was a case of wilful murder and let's put it straight, the Crown says by way of its allegation it was Stapleton who actually wilfully murdered the boy and they say each of these two women is guilty of the crime of wilful murder as an aider and for other reasons, but here as an aider. Alternatively, however, if it was either of the women who wilfully murdered the boy, and that was your finding beyond reasonable doubt, each of the other accused could be likewise guilty of wilful murder as an aider if those pre‑conditions were met. So, complicated I'm afraid, a number of permutations, caused by the way this case has gone, caused really because the accused have blamed each other in the sense that the women say Stapleton killed him and Stapleton says, 'I didn't kill him, the women killed him', so it creates for me confusion - not confusion but difficulty in the way in which I have to direct you about so many of these things, but I remind you the Crown case is straight up, that Stapleton actually killed with an intent to kill and the two women aided, as I have defined aiding, and are therefore equally guilty of wilful murder as aiders, and for another reason which I think I might leave until we resume."
During his directions on the question of aiding, his Honour did not refer to the question of what the situation would be if the jury was not satisfied beyond a reasonable doubt that an aider had an intention that the boy be killed.
His Honour did not refer at that time in his directions to the possibility of lesser convictions of murder and manslaughter for the aiders, depending on their intent, if the principal was guilty of wilful murder.
His Honour then went on to discuss what he described as "common enterprise".
The applicant's submissions
It was submitted for the applicant that the jury were not sufficiently instructed as to how, on the facts of this case, they could reason their way to a lesser verdict of murder or manslaughter, if the principal was guilty of wilful murder; that his Honour had not told them about that process.
It was submitted that his Honour should have explained to the jury how, in certain circumstances, they could bring in verdicts of murder or manslaughter for the aiders if the principal was convicted of wilful murder. It was submitted that at no stage in his direction had his Honour assisted the jury in this regard.
I would uphold those submissions.
The duty of a trial Judge in directing a jury was unanimously stated by Dixon, Williams, Webb, Fullagar and Kitto JJ in Alford v Magee [1952] 85 CLR 437 at 466 to be as follows:
"The second observation to be made is this. We are in complete agreement with what was said by Owen J. in Commissioner for Road Transport and Tramways v. Prerauer. 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. It may be that the issues in a civil case tend, generally speaking, to be more complex than in a criminal case. But the same principle is applicable, and looking at the matter from a practical point of view, the real issues will generally narrow themselves down to an area readily dealt with in accordance with Sir Leo Cussen's great guiding rule. These considerations lead to the conclusion that a judge should not put to the jury the qualification on the general rule as to contributory negligence unless he feels himself able to explain clearly to them exactly how the qualification can be fairly and reasonably applied by them to a view of the facts which it is open to them to entertain."
In R v Jellard [1970] VR 802, Smith J with whom Winneke CJ and McInerney J agreed, said at 804:
"In the case of R v Wilkes and Bryant, [1965] VR 475, at p. 479, I made some observations about the duty of a trial judge to put the accused's defence to the jury, and I take the liberty of quoting the following passage from what I there said: 'Important among the necessary safeguards is the established rule that it is the judge's duty to put the defence fairly to the jury. That rule cannot, save in quite special circumstances, be departed from without serious risk of a miscarriage of justice.'
Reference may also be made to what was said by the High Court in Alford v Magee (1952) 85 CLR 437, at p. 466; [1952] ALR 101, regarding the duties of a trial judge, and in particular to the following words: '...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 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.'
I would refer also to a passage in a similar vein in the judgment of Sir Leo Cussen in Holford v Melbourne Tramway and Omnibus Co Ltd, [1909] VLR 497, at pp. 522, 523. It is not, of course, in every case in which there is an omission by a trial judge to perform his duties in these matters that a miscarriage of justice results. In some cases the issue is a simple question of black or white, or it is so plain what the issues are that there is no danger of a miscarriage, even if the judge merely adopts the course taken here of telling the jury what are the elements of the charge laid and recapitulating the evidence. In this case, however, the matter was not simple."
In R v Anderson [1996] 2 VR 663, Winneke P with whom Brooking JA and Southwell AJA agreed, said at 666 - 667:
"As the Court of Criminal Appeal in this State has often said, it is ordinarily the duty of the trial judge in a criminal trial not only to direct the jury on the law applicable but to assist them to apply that law to the facts of the case before them by telling them what, in the light of the directions of law, are the real issues raised in the case. I refer to R v Jellard [1970] VR 802; R v Wilkes and Briant [1965] VR 475; Alford v Magee (1952) 85 CLR 437 at 466.
It is clear from the evidence in this case that the issues, although confined, were not so black and white as to relieve the trial judge of assuming this important task, and that that is so notwithstanding the fact that the accused himself did not give evidence."
In R v Piazza (1997) 142 FLR 64 Hunt CJ at CL said at 64 - 65:
"Subsection (1) of s 405AA relieved trial judges of any such perceived obligation to summarise all of the evidence. In truth, there never was such an obligation. The obligation has always been, and remains, that to which I have already referred, to present to the jury the issues of fact which they have to determine, and to do so with such reference to the facts of the case as is necessary to assist them in that task. In R v Zorad (1990) 19 NSWLR 91 at 105, decided earlier in 1990, this Court said:
'A summing up should, in every case, not only include directions as to the ingredients of the offence which the Crown has to establish and an explanation of how the relevant law may be applied to the facts of the particular case, but it should also include a collected resume of the evidence which relates to each of those ingredients and a brief outline of the arguments which have been put in relation to that evidence.'
A respectable body of longstanding authority was cited for that proposition: Holford v Melbourne Tramway & Omnibus Co Ltd [1909] VLR 497 at 522‑523; Mowlds v Ferguson (1939) 40 SR (NSW) 311 at 323; Alford v Magee (1952) 85 CLR 437 at 466. It is a proposition which has been re-stated many times since: see, eg, R v Heuston (1995) 81 A Crim R 387 at 392‑393."
There is an additional aspect to the directions of the learned trial Judge in this case. That concerns the way in which the learned trial Judge directed the jury as to the facts of the case generally.
In Pinta v The Queen [1999] WASCA 125, which was a decision of the Court of Criminal Appeal in this State, Ipp J said at 4 of the reasons:
"In the present case, while the learned trial Judge did refer to the well‑known problems that arise in connection with photoboard identification, the context in which he did so tended to minimise those problems. Firstly, he referred to them as being matters raised by the defence, and described them as being arguments advanced by the applicant's counsel. His Honour did not make clear that his directions in this respect had 'the authority of the Judge's office behind [them]' Domican v The Queen (1992) 173 CLR 555 at 562."
The matter was carried further by the Court of Appeal in the United Kingdom in Amado‑Taylor v The Queen (2000) 2 Cr App Rep 189 when Henry LJ in giving the judgment of the court said at 191:
"Of these reasons we have these comments. First, counsel's closing speeches are not substitute for a judicial and impartial review of the facts from the trial judge who is responsible for ensuring that the defendant has a fair trial. And the first step to such a trial is for the judge to focus the jury's attention on the issues he identifies. That responsibility should not be delegated (or more accurately here, abandoned) to counsel, doubly so when they do not know, when making their speeches, what the judge is expecting of them.
Second, the fact that members of the jury were taking notes does not relieve the judge of this responsibility. Evidence is not given sequentially – it comes out witness by witness and needs to be marshalled and arranged issue by issue. This is the judge's responsibility…"
I also refer to the comments of Williams JA in R v Lock [2002] 1 Qd R 512 at 514, 515.
The reason the above comments are relevant in this case is that the learned trial Judge, amongst other things, told the jury that the case was complicated because the three accused had blamed each other in the sense that "the women say Stapleton killed him and Stapleton says, 'I didn't kill him', the women killed him." His Honour told the jury that the Crown case was "straight up, that Stapleton actually killed with an intent to kill and the two women aided…" [AB63]. His Honour also said:
"It [The Crown] actually alleged that Stapleton did the acts which caused the death and that indeed is alleged by Bardsley and Papalii as well, although Stapleton alleges it the other way around." [AB65]
Having concluded his directions as to the law involved in the matter including directions concerning corroboration, circumstantial evidence, lies told by the accused and character evidence, his Honour then came to the facts of the case. What he did was that he firstly summarised the case for the Crown and then individually dealt with the defences advanced by the three accused persons. He firstly outlined Mr Stapleton's defence and the method he used was to quote what counsel had said referring on approximately 45 occasions to counsel saying something or arguing for some proposition. His Honour then dealt with the applicant's defence and again referred to counsel's comments and propositions on approximately 41 occasions. Finally, he dealt with Ms Papalii's defence and again referred to what counsel had said on approximately 27 occasions.
In my view the learned Judge erred in taking this approach in this most complex case. He did not engage in "a judicial and impartial review of the facts" in the sense used by Lord Justice Henry or explain how the law could be applied to the facts of the particular case in the sense referred to by Sir Leo Cussen and by the Justices of the High Court in Alford v Magee (supra).
The present case required the learned Judge to specifically tell the jury how it could approach the Crown case if it accepted in whole or in part the evidence of the applicant or if it had doubts concerning the evidence in areas relevant to the applicant's defence. It was not sufficient to set out what the Crown case was and what the applicant's counsel had submitted in the applicant's defence.
This was a case where Kennedy J's comments in Warren & Ireland v The Queen [1987] WAR 314 were relevant.
In Warren v Island (supra) at 321 Kennedy J said he did not consider that co‑accused who are by virtue of s 7 of the Criminal Code guilty of an offence, may only be convicted of the same offence as the principal and may not be convicted of different offences. At 322 his Honour said:
"It is, moreover, now settled that a principal may be found guilty of murder, and the aider or accessory guilty of manslaughter, on a joint charge of murder, whether it be s 7 or s 8 which is relied upon, so it is not the case that both must be found guilty of the one offence."
His Honour said that s 7 and s 8 of the Code do not require a conviction for the identical offence as between the various participants.
At 323 Kennedy J referred to the reasons of Crisp J in Frost v The Queen (1969) Tas SCt 172 at 182 where his Honour said:
"Where in the commission of a joint offence there are reasonable grounds for imputing to the accused severally different intentions and purposes of varying degrees of criminality, it would be a non‑direction not to inform the jury of the necessity of considering the state of mind of each man separately and to inform them of the possibility that while the principal offender may possess the specific intent necessary to make an unlawful killing murder, another offender or principal in the second degree may abet the offence without the same intent to be guilty of manslaughter."
In Warren (supra) Kennedy J said at 324:
"Smith and Hogan (Criminal Law 5th ed 1983) also argue for the proposition that, when the principal has caused an actus reus, the liability of each of the secondary parties should be assessed according to his own mens rea. Whether or not that represents the law in the United Kingdom, it appears to me that this result has been achieved in s 7, at least where the actus reus constitutes an offence in itself."
His Honour also referred to the judgment of Mignault J in the Supreme Court of Canada in Remillard v The King (1921) 59 DLR 340 at 349 to 350.
Kennedy J concluded at 324 by saying:
"Accordingly, it does not appear to me to be helpful to proceed on any a priori basis that the liability of the aider or accessory is merely derivative from that of the primary offender and that therefore the former cannot be guilty of a greater crime than the latter. It does not appear to me to be possible to extract from s 7 and s 8 any concept of derivative liability."
Kennedy J's approach to the question of intent in s 7 cases is in my opinion consistent with the approach which has been adopted by the Justices of the High Court in recent decisions such as Gillard v The Queen (2003) 78 ALJR 64. Although Gillard was concerned with a s 8 situation, the Justices emphasised the necessity for the jury to consider the intent of each accused separately. That is most important in a s 7 case.
In the present case [at AB61C] the learned Judge said:
"For present purposes, every person who aids another in committing an offence is also guilty of it. There is one offence but there are two offenders or more. Knowledge by the aider of the general nature of the offence being committed and of the intention of the principal offender to commit it are essential, and encouragement or assistance in one form or another to commit the offence are minimal requirements before an accused may be regarded as aiding the principal offender, so passive acquiescence without more cannot amount to aiding."
In that part of the direction the learned Judge was not specifically directing the jury's attention to the intent of the aider but to the aider's knowledge of the intention of the principal offender.
In my view, it was necessary for the Judge to explain to the jury how the applicant's defence in this trial should be considered in the factual situation of the trial. He did not do that.
It was submitted for the applicant that it was not sufficient when referring to the intent of the aider to say in effect: "What you have to be satisfied of is knowledge on the part of the secondary offender of what the principal offender intended". That did not sufficiently address the situation where the secondary offender might have had a different level of culpability because the secondary offender intended something different. It was submitted that in this case that it was not known whether the members of the jury had addressed the question of the specific intention of the applicant.
It was submitted that it was clear that the applicant had aided and abetted an assault upon the victim which assault ultimately caused the death. Her actions would constitute manslaughter at least. However, it was submitted that his Honour did not direct the jury specifically as to how it could arrive at a lesser verdict for the applicant if the jury found that the principal offender was guilty of wilful murder.
It was submitted that the learned Judge should have told the jury that if they were satisfied that the applicant had intended to aid Stapleton in the commission of an assault which led to the unlawful killing of the deceased then she would be at least guilty of manslaughter. His Honour should then have told the jury that whether or not the applicant could be guilty of wilful murder or murder would depend upon her own specific intent at the time, that is, whether the applicant at the relevant time had intended that the deceased should be killed or should suffer grievous bodily harm.
It was submitted that it would not be lawful for the jury to find the applicant guilty of wilful murder without being satisfied beyond a reasonable doubt that the applicant had had an intent that the deceased would be killed. That proposition is supported by the observations of Kennedy J in Warren (supra).
The learned Judge did not direct the jury that they must be satisfied beyond a reasonable doubt of a specific intent to kill on the part of the applicant before they could convict her of wilful murder or murder. A person could not be guilty of wilful murder in an aiding situation unless it is proved that the person intended that by so aiding, a death would occur. Each person's culpability must be determined in accord with their own state of mind and not some "mere derivative liability".
It was submitted for the applicant that in this case the jury were not effectively directed by the learned Judge how in a s 7 situation, there may be different verdicts brought in against the chief actor and another party, where their respective intents differ; that the jury were not sufficiently directed concerning any intention the applicant may have had. That if the applicant had aided and abetted the actions of Stapleton, it was proper for the jury to give consideration to her state of mind when determining the degree of her culpability.
I would uphold the applicant's submissions concerning this question.
The position then is that it is not known how the jury reached their verdict that the applicant was guilty of wilful murder. It is not known whether the jury unanimously or in part agreed that the applicant was guilty because of the provisions of s 7.
As the learned Judge in my view, did not correctly direct the jury concerning the application of s 7 of the code, and some or all of the members of the jury may have arrived at their view as to the guilt of the applicant pursuant to s 7, the applicant has not had a trial according to law. The applicant may have lost a chance which was fairly open to her of being acquitted of wilful murder and murder.
In Wilde v The Queen (1988) 164 CLR 365 at 371 - 372 Brennan, Dawson and Toohey JJ said:
"Those authorities establish that where there has been a departure from the requirements of a properly conducted trial, it cannot be said that there has been no substantial miscarriage of justice if the applicant has thereby lost 'a chance which was fairly open to him of being acquitted' to use the phrase of Fullagar J in Mraz v The Queen or 'a real chance of acquittal' to use the phrase of Barwick CJ in Reg v Storey. Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside: see Driscoll v The Queen; Reg v Storey; Gallagher v The Queen."
In my view, for the above reasons, the appeal should be allowed, the conviction set aside and a new trial ordered.
It is not necessary, in my opinion, to deal with the second ground of appeal which concerns the intention the applicant must have had before she could be convicted of wilful murder by virtue of the provisions of s 8 of the Code.
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