Carter v the Queen M18/2000

[2000] HCATrans 762

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M18 of 2000

B e t w e e n -

EMMA KATE CARTER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 DECEMBER 2000, AT 9.50 AM

Copyright in the High Court of Australia

MR DE. GRACE, QC:   If the Court pleases, I appear with MR G.P. MULLALY for the applicant.  (instructed by Stary George Myall)

MR P.A. COGHLAN, QC:   May it please the Court, I appear with my learned friend, MR C.J. RYAN, for the respondent.  (instructed by Director of Public Prosecutions (Victoria))

McHUGH J:   Yes, Mr Grace.

MR GRACE:   The issues raised in this case, your Honours, concern the principles attaching to derivative liability.  As your Honours would be aware, there were two possible routes upon which the jury could reach its verdict in this case.

McHUGH J:   Yes, I know, but is that not your problem?  You raise some interesting questions of law but they do not seem to have any real application.  You concede that the Crown case included a case that your client acted in concert with Jackson and the Court of Appeal held that there was sufficient evidence to make out such a case and the jury convicted your client of murder.  Now, what is the inconsistency in that?

MR GRACE:   The submission that we make is that the conviction of a person for murder on the basis of aiding and abetting is dependent upon the principal being convicted of the same crime or at least the jury being satisfied ‑ ‑ ‑

McHUGH J:   Yes, that may be an interesting question to be determined, but here it was open to the jury to convict your client of murder and they did, so that is the beginning and end of the case.  What does it matter that Jackson was guilty of manslaughter only?

MR GRACE:   Because we do not know as to what basis the jury convicted on it.

McHUGH J:   Well, on that basis it comes to this, does it not, that you could never convict the applicant of murder?

MR GRACE:   Yes.

McHUGH J:   So the case of murder should never have been left to the jury?

MR GRACE:   Yes.

McHUGH J:   There was an abundance of evidence that she acted in concert.

MR GRACE:   Well, the defence case was put on certain bases.  The first basis was that the causation issue was such that the jury could not be satisfied beyond reasonable doubt that either Carter or Jackson had killed the deceased, the point being that the evidence was unclear as to whether the deceased ‑ ‑ ‑

McHUGH J:   I know, but you lost that battle and it was open to the jury to find.  It was held that it was open to the jury to find and they did find and on the evidence, it would be surprising if they did not find that one or other or both had killed her.  After all, your client is talking about giving her hot shots ‑ ‑ ‑

MR GRACE:   Well, the hot shot issue was in relation to battery acid and the medical evidence was clear that that could not have killed the deceased. The second alternative basis of the defence was that, even if the deceased had been killed by the actions of Jackson, the applicant was not a party to any agreement to do that, nor did she aid and abet that killing.

McHUGH J:   Well, I appreciate that, but really, and I think the Crown points this out in their submissions, it depends upon the jury accepting her evidence which they did not have to and, undoubtedly, they rejected her evidence and, once they rejected her evidence, or they could have taken out of her evidence what they wanted to to support the other evidence that supported the Crown, they found her guilty of murder.

MR GRACE:   Could I take your Honours to the charge which is set out in summary form in relation to the relevant aspects at page 99 of the application book and there his Honour the trial judge at line 10 says:

“In this case, the Crown allegation, the Crown case, is that the accused acted in concert with Jackson and did acts which were part of the acts which amounted to murder, or, alternatively, she was there and by her presence aided and abetted the commission of that crime, by either encouraging or assenting to it.  So that is the basis on which the Crown puts its case.

If you are satisfied of those elements, then of course you would find the accused guilty of murder.  If you have a reasonable doubt about them, you would of course find her not guilty of murder.”

Now, what we say is in error there is that the learned trial judge did not direct to the jury that before the applicant could be convicted of murder on the alternative basis of being present aiding and abetting the commission of that crime, they would firstly have to be satisfied beyond reasonable doubt that Jackson had committed that crime.

McHUGH J:   But the judge there is dealing with the Crown case on concert and all the case of concert required was that your client was acting in concert with Jackson who did acts which led to the death of the accused.  It does not have to show that Jackson was guilty of murder or that he had a particular intent.

MR GRACE:   Not on the concert alternative, certainly, your Honour, but in relation to the route through aiding and abetting, it is submitted that the jury would have to be satisfied beyond reasonable doubt that Jackson had committed the crime of murder.  The jury were not so directed and we say that, which is the subject of a discrete ground of appeal, is an error in the jury directions.  But, putting that to one side, we say that as a matter of legal theory - and your Honour touched upon this in your judgment in Osland - someone who is charged with a derivative liability offence ought not to be convicted in circumstances where the principal is not.

McHUGH J:   But if there was no case of acting in concert in this particular case, then you would be presenting a very interesting point for decision by this Court but at the moment it seems to me that your problem is that the Crown had a case that she was acting in concert with Jackson.  If it was open to the jury to come to that conclusion, which they obviously did, the fact that Jackson is convicted of manslaughter is neither here nor there.

MR GRACE:   Well, with respect, your Honour, we take issue with your Honour’s conclusion that the jury convicted the applicant on the basis that she was acting in concert.

McHUGH J:   Well, we do not know whether they did or whether they did not but, so far as acting in concert is concerned, there is no inconsistency in the verdict of murder against your client and the conviction of Jackson for manslaughter, so that is the end of your first special leave question.  Then your second special leave question is that it was incumbent upon the trial judge to direct the jury that in order to convict the applicant of aiding and abetting Jackson to murder Parkes, the jury would have to be satisfied beyond reasonable doubt that Jackson had murdered her, but that case depended upon your case, did it not, not the Crown case?

MR GRACE:   Well, also the Crown case; a combination of both the defence case and the Crown case.  Could I just go back one step to what your Honour said about the concert issue.  It may well be that there was sufficient evidence before the jury to establish concert, but the question was, concert to what?  We submit that at the very highest it was concert to manslaughter.  In his Honour’s reasons at page 104 of the application book at line 10, his Honour Justice Charles did not differentiate between murder or manslaughter.  His Honour says there:

One aspect of the applicant’s defence was that Jackson was the murderer and the applicant was not involved.  But there was, as I think Mr Grace conceded, plainly sufficient evidence upon which the jury would have been entitled to find that the applicant at least acted in concert with Jackson.

But the rider is - and the words were not spelt out there - we say:  but not as to the crime of murder.  And then, the next sentence:

If the jury was entitled to be satisfied, by evidence admissible against the applicant, of the actus reus and of the concert or agreement between Jackson and the applicant, then the verdict is, I think, unassailable.

But the rider to that sentence is:  but not necessarily mens rea.  That is, concert or agreement between Jackson and the applicant, but not necessarily in relation to the mens rea of murder.

So we say there are flaws in the reasoning process of his Honour Justice Charles, with whom the other members of the court agreed.  If I could take your Honours further down page 104 at line 19, where his Honour says:

But even if the jury were simply satisfied that she was guilty of aiding and abetting Jackson, there was, I think, again sufficient evidence, admissible against the applicant, to establish the actus reus and that Jackson had the necessary intent.

We submit that that is an incorrect finding by his Honour.  We say there was clearly insufficient evidence for the jury to find that Jackson had the necessary intent to murder.

McHUGH J:   Why?  I mean, there seems to be an idea growing up that unless there is evidence that people admit they had an intention, that a case of murder cannot go to the jury or a person cannot be convicted.  One can do these things on circumstantial evidence.  Look at the facts of this case.  One would not have much doubt, I would have thought, that they murdered this woman.

MR GRACE:   Could I just add to what I was just saying, your Honour, that the cases relied upon by his Honour Justice Charles, which you will see in line 22, Hui Chi-Ming, Barlow and Brien & Paterson are all concert cases; they are not aiding and abetting cases.  So we say that the process of reasoning by which his Honour got to that conclusion was through a flaw in the reasoning by relying upon those cases to the exclusion of the aiding and abetting cases.

McHUGH J:   Well, I am beginning to think you may have a point, Mr Grace.  Unfortunately, I think you have managed to conceal it to some extent by relying on your first ground about the inconsistent verdicts, which seems to me to be a hopeless point, but is this the point that you are really seeking to make, that although it was open to the Crown to convict the accused of acting in concert, the Crown also had an alternative case of aiding and abetting Jackson to murder and that there was no direction concerning Jackson’s murdering the applicant; in other words, what the elements of the case against Jackson were?

MR GRACE:   Yes, quite, your Honour.  We say that is a fundamental flaw in the trial judge’s directions which in turn may have led, if the jury took the alternative route of aiding and abetting, to a miscarriage of justice.

McHUGH J:   Where does the judge deal with the directions about Jackson’s part in this?

MR GRACE:   At page 35, line 28, the trial judge says this:

Now, the Crown in this case relies on proving that the accused was involved in this in one of two ways:  either by acting in concert with Jackson, or by aiding and abetting Jackson.

And then his Honour goes on to describe “concert”, and then at pages 37 to 38 his Honour gives, between lines 10 and 25, the standard definition of what “aiding and abetting” is, based upon the Lowery & King definition, and then over the page at page 38 line 9, his Honour says:

In this case, the Crown allegation, the Crown case, is that the accused acted in concert with Jackson and did acts which were part of the acts which amounted to murder or, alternatively, she was there and by her presence aided and abetted the commission of that crime, by either encouraging or assenting to it.

Now, at no time do we say that his Honour goes into what matters the jury could consider as admissible against Jackson concerning whether he was guilty of murder or not.

McHUGH J:   There is nothing at all about ‑ ‑ ‑

MR GRACE:   No, not that I can discern in the summing up, in the charge.  The whole summing up was directed to the issue as to what was admissible against the applicant and, of course, your Honours must be aware, as no doubt you are, that the reason the trial of Jackson was severed from this trial was because of the prejudice that would flow from the alleged admissions made by the applicant to others.  So we say that there was a fundamental flaw that occurred and that has flowed through to the reasoning process of the jury, with a substantial risk that a substantial miscarriage of justice has occurred.

McHUGH J:   We might hear your opponent, Mr Grace.  Yes, Mr Coghlan.  What do you say about this second point?  We do not want to hear you on the inconsistency point, but what about this second point?

MR COGHLAN:   What his Honour said at page 37 of the application book beginning at line 10 was:

Aiding and abetting is also a legal concept which is relevant to the question of complicity of people who are charged with an offence.  A person may also be guilty of murder, quite apart from this question of concert, that is, the agreement or understanding, if they are present at the scene and, by their presence, encourage the commission of the crime by the other.  There need not be a prior understanding or agreement, but, if they are there and doing one of these following three things, then they may be guilty of murder.  They must be shown by their presence either to be intentionally helping to commit the crime or encouraging its commission by their behaviour, or conveying to the other person their agreement or assent or concurrence in the commission of the crime, in other words, expressly agreeing that it should happen.

McHUGH J:   Well, that seems to be correct as far as it goes, but the question is, does it go far enough?

MR COGHLAN:   It does in the circumstances of this case, your Honour, because the secondary defence, after the causation question had been disposed of, really was that Jackson was guilty of murder and the applicant was not.  It was never part of the applicant’s case that she could not be convicted of murder because Jackson was not guilty of murder.  It was never put on her behalf; it was never the way the case was conducted.

McHUGH J:   But that is not fatal, as you well know.

MR COGHLAN:   Not fatal, your Honour, but when one has regard to the reality of the way in which this case unfolded in front of the jury, the finding of the jury that they rejected the evidence of the applicant beyond reasonable doubt, and left with what version?  Left with the version, in particular, that is set out in her confession that is set out in detail at page 79 of the application book:

WARREN:  Was she dead when you, when you gave her the, when you burnt her?

CARTER:  Yeah. Yeah, when I burned her she was dead, yeah.

WARREN:  Yeah.

CARTER:  Yeah.  Well because I had to strangle her as well.

WARREN:  Yeah.

CARTER:  Because she wasn’t like going.

INGRID:  Yeah.

And so on.  That that is the reality in which this case was conducted and then, only the sub-defence became, and concluded as its main aspect of it, Jackson is the murderer.  It is quite unreal to say that there was a basis of acquittal of this accused on the basis that Jackson was not the murderer in the way the case was conducted.  It simply lacks reality.

McHUGH J:   But was not the trial judge under a duty to inform the jury as to the need for them to find Jackson guilty of murder before they could find her guilty of aiding and abetting that murder?

MR COGHLAN:   It is submitted, your Honour, that that is sufficient in terms of the general charge that appears at page 37 of the application book, having regard to the need for juries to be charged on the real issues in the trial.

McHUGH J:   So your point is that, having regard to the way she conducted her case, that Jackson was the murderer and the failure to ask for the direction that is now alleged should have been given, that there has been no miscarriage.  Is that what it comes to?

MR COGHLAN:   No miscarriage, your Honour, on the basis that it was never a true issue in the trial.

McHUGH J:   Yes.

MR COGHLAN:   Your Honours, then what appears in the judgment of the Court of Appeal is the passage that appears at page 38 and then is repeated in the judgment of the Court of Appeal at lines 9 and following:

In this case, the Crown allegation, the Crown case, is that the accused acted in concert with Jackson and did acts which were part of the acts which amounted to murder or, alternatively, she was there and by her presence aided and abetted the commission of that crime –

the commission of that crime by Jackson.  And it was never suggested in the way that the case was conducted that a path to acquittal for her of murder was by the finding of non-guilt for Jackson in this trial.

Your Honours, it seems to lead, I must say, to a proposition at the end of the day that if people are tried and tried separately, which is now an almost universal occurrence, that if one of the bases of conviction is on the basis of aiding and abetting, that somehow that should remain pendent on what the result of the subsequent trial ‑ ‑ ‑

McHUGH J:   Well, that seems to be the consequence of the first argument but it does not seem to me to have any substance, but this other point though is a different point.  You may have swung me over having regard to the way the case was conducted but ordinarily, depending on the circumstances of the case, the judge would ordinarily need to give some fairly specific directions about the part played by the person who is alleged to be aiding and abetting, but you say that in this case the accused’s case from beginning to end was that Jackson had murdered her.

MR COGHLAN:   Yes, your Honour.

McHUGH J:   Is there anything to suggest that it was the accused’s case that Jackson had accidentally or otherwise killed her?

MR COGHLAN:   No, your Honour.

McHUGH J:   We do not have her evidence, of course.

MR COGHLAN:   It really becomes, your Honour, that in her case that since she is not present in that part of the house where the acts that caused death occurred, she cannot really say, but given that the jury adequately disposed of the question of causation, there are injuries on the body consistent with a killing, the jury must have been satisfied beyond reasonable doubt that a killing took place.  If the applicant did not directly do it, Jackson must have.

McHUGH J:   But that is not sufficient on aiding and abetting, is it?  The jury not only have to be satisfied that she aided and abetted; they have to be satisfied that Jackson murdered her.

MR COGHLAN:   Yes, and it is submitted the direction is sufficient in the circumstances of the case, your Honour.  They are the matters.

McHUGH J:   Yes, thank you.  Mr Grace, what do you say about the conduct of the case?  That is to say, it was never a live issue in front of the jury that somehow or other he only killed her accidentally?

MR GRACE:   It was a live issue.

McHUGH J:   Where do you go to that?

MR GRACE:   Page 101, at the top of the page:

Mr Grace argued that the Crown’s acceptance of a plea of guilty on the charge of manslaughter from Jackson showed that the Crown could not put before the jury sufficient evidence of his mens rea for murder.  The applicant’s case had been that Jackson was in fact the killer, and liability should not be imposed on an aider and abettor, where there was no mens rea in the principal.

McHUGH J:   Yes, that is what you put to the Court of Appeal, but what about before the trial judge?  You were not counsel at the trial.  Mr Langslow was, was he not?

MR GRACE:   As I indicated earlier, your Honours, we say the first basis of defence was the causation issue.  The second basis of defence was that, if there was a killing, the applicant had not acted in concert nor had she aided or abetted that killing.  The learned trial judge directed the jury on the basis on the basis of manslaughter and included aiding and abetting manslaughter in his directions as a possible verdict.

McHUGH J:   Where is that?

MR GRACE:   Page 38, and Mr Coghlan has read a passage to your Honours that I think ended at line 15.  His Honour went on to say ‑ ‑ ‑

McHUGH J:   But that is manslaughter on the part of your client, is it not?

MR GRACE:   Yes.

McHUGH J:   It was never put that Jackson himself might have been guilty of manslaughter, was it?

MR GRACE:   Well, it was implicitly because, if you read from line 22, and I will read it to your Honours as follows:

Now, a person may be guilty of manslaughter if the Crown, the prosecution, prove that the act or acts of that person, or that person in concert with another person, caused the death of the deceased, that the death was caused by conscious, voluntary and deliberate act or acts, and that such acts were unlawful and dangerous.  Unlawful simply means not justified by law.  Dangerous in this context means that they exposed the victim to an appreciable risk of serious injury.  Not whether the accused thought they might expose the victim to such appreciable risk –

and so on.  Then at line 8 on page 39 his Honour went on to say:

Now, you would consider that only if you were to find the accused not guilty of murder and then you would consider whether, on the evidence, you are satisfied beyond reasonable doubt that the Crown has established manslaughter on that basis.  If you are so satisfied, of course, you would convict her of manslaughter; if you had a reasonable doubt about that, you would acquit her.

So that was an alternative basis.

Now, your Honours will be aware of the covert tapes.  On the first covert tapes there was no suggestion of Jackson’s involvement at all and the Crown agreed, in effect, during the course of the trial, that what was on the first covert tapes was not true, because it accepted that Jackson was involved.  The Crown at some stage went to the jury on the basis that, well, it may have been the applicant herself that was involved in a murder and Jackson was not involved at all; that was one possibility that was floated, but I believe not seriously.  But, in the end, what the Crown went to the jury on was what was on the second covert tape, which was to the effect that both of them were acting together or that she aided and abetted Jackson.

So when one goes back to page 104, which is the passage I referred your Honours to earlier, in our submission, Justice Charles did not grapple with the necessary elements of aiding and abetting and neither did his Honour in his directions to the jury.

McHUGH J:   The Court will adjourn to consider the course it will take in this matter.

AT 10.19 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.25 AM:

McHUGH J:   In this matter the applicant seeks to raise various grounds of appeal on the footing that she was convicted only as an aider and abetter of Jackson as a principal in the murder of Parkes.  However, the Crown also contended at the trial that the applicant acted in concert with Jackson.  As the Court of Appeal pointed out, there was plainly sufficient evidence upon which it was open to the jury to find that the applicant acted in concert with Jackson.  That makes unassailable the verdict which the applicant seeks to attack on the ground of inconsistency with the conviction of Jackson for manslaughter as a result of a plea in separate proceedings. 

The applicant also alleges that it was incumbent upon the learned trial judge to direct the jury that, in order to convict the applicant of aiding and abetting Jackson to murder Parkes, the jury would have to be satisfied beyond reasonable doubt that Jackson had murdered Parkes.  But that direction was not sought at the trial.  That is almost certainly because it was never an issue at the trial that Jackson was only guilty of manslaughter.  The summing up proceeded on the basis that, if Jackson had killed the deceased, that is to say if his acts were causally connected with the death of the deceased, he was guilty of murder.  Once causation was established the issue was whether the applicant had acted in concert or aided or abetted Jackson to murder the deceased.  In those circumstances, the failure of the learned trial judge to give the direction did not amount to a miscarriage of justice.  The application is dismissed.

AT 10.27 AM THE MATTER WAS CONCLUDED