CW v The State of Western Australia
[2010] WASC 23
•12 FEBRUARY 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: CW -v- THE STATE OF WESTERN AUSTRALIA [2010] WASC 23
CORAM: BLAXELL J
HEARD: 11 DECEMBER 2009
DELIVERED : 12 FEBRUARY 2010
FILE NO/S: INS 7 of 2009
BETWEEN: CW
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law and procedure - Plea of not guilty to murder - Accused charged as an accessory to principal offender - Juries at two successive trials unable to agree on verdict - Indictment amended prior to third trial to allege alternative offence of manslaughter - Whether accused can be convicted of manslaughter as an accessory to murder - Whether amendment an abuse of process
Legislation:
Nil
Result:
Ruling that verdict of manslaughter is open to the jury
Category: B
Representation:
Counsel:
Applicant: Mr S D Freitag
Respondent: Mr D Dempster
Solicitors:
Applicant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Gammage v The Queen (1969) 122 CLR 444
Jemielita v The Queen (Unreported, WASCA, Library No 950348, 27 July 1995)
Markby v The Queen (1978) 140 CLR 108
Nicolakis, Nicolakis & Franich (1988) 32 A Crim R 451
R v Barlow (1997) 188 CLR 1
R v Dodd [1960] WAR 42
R v Smith [1963] 3 All ER 597
Saunders v The Queen [1980] WAR 183
Warren & Ireland (1985) 15 A Crim R 317
BLAXELL J: CW has stood trial twice on an indictment alleging that on 27 June 2008 at Bunbury she murdered her father. The juries at both trials were unable to reach a verdict and CW now faces a third trial which will commence on 18 April 2010. At the third trial the State will substitute a fresh indictment which adds a second count of manslaughter as an alternative to murder.
CW contends this substitute indictment will be an abuse of process and she applies for a ruling that it is in the interests of justice that the prosecution of the proposed alternative charge be stayed permanently.
The prosecution's case against the applicant
There is a tragic background to the present case. Between 1989 and 1993 when CW was aged between 9 and 13 years, she was repeatedly sexually abused by her father, John Wong. In 1997 Mr Wong was convicted of 22 of these sexual offences and sentenced to a total term of 11 years' imprisonment (which was reduced on appeal to 9 years).
After Mr Wong was released to parole, he worked as a caretaker at the Bunbury Seafarers' Mission. As caretaker, he was provided with a residence at the rear of the Seafarers' Mission building. It was while Mr Wong was living there on 27 June 2008 that he died as a result of being stabbed in the neck by Tony Burns. Burns later pleaded guilty to, and was convicted of the offence of murder (as defined by s 279 of the Criminal Code (WA) prior to the 2008 homicide amendments).
Tony Burns was a close acquaintance of CW and on the night of the murder had driven with her from Perth to Bunbury. It is the prosecution case that CW counselled and aided Burns to commit the offence, and that she did so to gain revenge against her father for his previous sexual abuse.
The prosecution case is entirely dependant upon admissions made by CW when she was interviewed on video by detectives. CW told the detectives that Tony Burns was her flatmate, and that on 26 June 2008 he became very upset when she informed him for the first time of the sexual abuse by her father. CW was also upset at that time, and in the course of the conversation that followed she answered questions from Burns by simply nodding or shaking her head. Accordingly, when Burns offered to go down to Bunbury to 'bash' her father she nodded her head in agreement to him doing that (ts 21). When Burns offered to kill her father she 'didn't nod my head to that'. However, she did nod her head and agree that Burns should 'seriously hurt him'. The interview continued:
Q.Okay. What did you think he meant by seriously hurting?
A.Just may be bash him.
Q.Mm'hm. Now we had a ‑ ‑ ‑
A.May be poke his eyes out. I don't know.
Q.‑ ‑ ‑ there was something about - you mentioned in another conversation we had earlier this morning about ‑ ‑ ‑
A.Cut his finger off.
Q.Okay finger off. Okay poke his eyes out,, cut his finger off. Anything else?
A.No.
Q.No? Okay. So it was poking eyes out, cutting a finger off. Was it finger or fingers?
A.Finger.
Q.Finger off.
A.Yeah he said I'll cut a finger off.
…
A.I didn't want him to kill him. I just ‑ ‑ ‑
Q.Do you reckon stabbing somebody in the eye or cutting his eye out is something like, really, really serious?
A.Yes.
Q.Okay. But you didn't want him to kill him?
A.I didn't - I didn't - I didn't know what he was going to do. Just suggested things. I didn't know what he was going to do. I didn't even know what (indistinct).
Q.Did you suggest anything to him?
A. No. (ts 88 ‑ 90)
In the course of the interview CW also referred to the negative impacts that her father's sexual abuse had had on her life. She agreed that she wanted him seriously hurt so that she could get 'a little bit of justice back', and in this regard:
I wanted him to remember what he's done so take off a finger, will make him, remind him that he's lost something. He's taken away something and he's done something wrong. (ts 102)
That same night, Burns and CW drove to Bunbury in a car which she had borrowed from a friend. Burns did all of the driving, and when they arrived at Bunbury, CW gave him directions to the Seafarers' Mission. After they stopped outside the Mission building, they both got out of the car. CW then helped Burns to 'stretch' a wire fence, but went back to the car while he went inside. Their last conversation before Burns went inside was 'He goes "what do you want me to do, chop off a finger or gouge out his eyes" and I go yeah' (ts 105).
After waiting in the car for 10 minutes, CW also went into the building. She did so because she could hear some 'squealing' from inside (ts 29). When she got inside she saw her father sitting in a chair holding his hand over a wound to his neck from which blood was 'pouring out'. Burns was 'there with the knife' and he was saying 'I've done it, I've done it, I've done it' (ts 31). The knife was a 'big butcher's knife' which CW had not seen before.
When CW looked at her father, and he looked at her, it made her 'pissed off' because 'he had no remorse whatsoever'. She 'just wanted' to stab her father in the hand. Accordingly, she took the knife from Burns, placed her father's 'other hand' palm down on an adjacent table and 'just stabbed him once' into the back of the hand (ts 111 ‑ 112).
Nothing else happened after that. She and Burns then left the building and drove back to Perth. The knife was thrown out of the vehicle on the way.
The proceedings to date
The first trial, before Justice Simmonds and a jury, took place between 11 and 15 May 2009. The State's case against CW was that she was a party to her father's murder by counselling and aiding Burns in the intentional infliction of grievous bodily harm. CW did not testify, but her defence essentially was that the arrangements she made with Burns for the purpose of aiding him did not extend to an agreement that grievous bodily harm would be inflicted on her father.
Following counsels' addresses, a number of issues were canvassed in the absence of the jury, including the question whether an alternative verdict of manslaughter was open on the evidence. In the end it was agreed by counsel, and the jury was directed, that if they acquitted CW of murder, it was open to them to find her guilty of manslaughter. However, the jury was also told that it would be 'difficult' for them to come to this alternative verdict and his Honour directed them that:
[T]he accused could only be guilty of manslaughter if she aided in manslaughter or counselled in manslaughter, and the possibility of that, as I say, would have been excluded by acquitting her of murder, so in this case although an alternative verdict of manslaughter will be put to you, there is, if you acquit her of murder, no question, I would suggest, that would arise of finding her guilty of manslaughter.
I presided over the second trial which took place between 21 and 23 September 2009. After all of the evidence had been heard, the following exchange occurred between counsel and myself in the absence of the jury:
BLAXELL J: I would like to raise a matter with counsel. I see from the first trial that a verdict of manslaughter was left to the jury but I don't see any basis on the evidence for a verdict of manslaughter and I just invite counsel's comments, perhaps from you, Mr Freitag first.
FREITAG, MR: I agree, your Honour. It's difficult to see how it could arise. I'm trying to recall the basis on which it was left the first time around. I understood that it was likely to be left this time but I agree with your Honour it's difficult.
BLAXELL J: I think the authority of Jemielita is that if the jury was to ask a question whether manslaughter is available I have to say yes it is but on the evidence it wouldn't seem to be an appropriate verdict.
FREITAG, MR: I wonder if your Honour could leave it on this basis that I can perhaps have a read back into the transcript around the discussion we had with his Honour Simmonds J about manslaughter and the we can ‑ ‑ ‑
BLAXELL J: And if we can try and do it when we resume because if I send the jury out at the end of your address I will probably have to give them a lunch break.
FREITAG, MR: Yes, your Honour.
BLAXELL J: All right. Have you got anything to say, Mr Dempster?
DEMPSTER, MR: Possibly for my sins I think I was 28 minutes in closing, your Honour.
BLAXELL J: Very good, yes.
DEMPSTER, MR: Your Honour is always correct about estimates. As to this matter it isn't available as a matter of law and that was discussed on the previous occasion and indeed Jemielita's authority, should the question of the matter arise, it may be left but it was left on the basis you will recall that his Honour Simmonds J explained that the verdict wasn't available and that it arises on a - if there was an acquittal then that will be the end of the matter and of course on the authorities Jemielita particularly as well some of the authorities there rehearse that if manslaughter were to be left in those circumstances of course the presiding judge could give strong comment as to the availability of that verdict but that was the way in which it occurred at the first trial but it doesn't arise in the matter.
BLAXELL J: I propose - what I would say is that I won't leave it to the jury unless when I come back from this break Mr Freitag you have further submissions (ts 485 ‑ 486).
As there were no further submissions from counsel, the jury were instructed that they could return verdicts of only guilty of murder or not guilty.
The jury at the second trial failed to reach a verdict, and the matter has been listed for a third trial which will commence on 19 April 2010. In the meantime, the State has lodged and served a fresh indictment alleging that:
(1)On 27 June 2008 at Bunbury [CW] murdered John Chee Leong Wong.
(2)In the alternative to count (1) that on the same date and at the same place [CW] unlawfully killed John Chee Leong Wong.
On 19 November 2009, CW applied for this indictment to be permanently stayed pursuant to s 90 of the Criminal Procedure Act 2004 (WA). However, the State has not yet substituted the fresh indictment for the original one, and CW's counsel has clarified that she seeks a stay of only the new count 2. In these circumstances, counsel agree that I should simply rule on the objections to the fresh indictment, which are essentially as follows:
(1)A guilty verdict on the proposed new manslaughter count is not available as a matter of law (as acknowledged by the State at the second trial).
(2)There will be no change in the evidence to be led or in the way that the State will present its case at the third trial. Therefore the State ought to remain bound by its earlier position that manslaughter was unavailable, and by my decision at the second trial not to leave manslaughter to the jury.
(3)In these circumstances, it is an abuse of process for the State to seek a verdict of guilty from the jury on a new count of manslaughter.
Whether the jury can return a verdict of manslaughter
Counsel for the State was clearly incorrect in submitting at the second trial that a verdict of manslaughter 'isn't available as a matter of law'. Because of s 10B of the Criminal Code, an alternative verdict of manslaughter is always available on a charge of murder. In this regard, the following summary of the relevant principles by Jackson SPJ in R v Dodd [1960] WAR 42, 52 (albeit in relation to the old offence of wilful murder) is still good law:
1. On a charge of wilful murder, the trial judge may never tell the jury that they cannot return a verdict of murder or manslaughter, because the power to do so is conferred on the jury by statute and cannot be taken from them (Brown v R (1913) 17 CLR 570).
2. Where there is no evidence at all on which a verdict of murder or manslaughter could be founded, the judge is not bound to put these alternatives to the jury and may abstain from doing so without it being a misdirection. Even so, where on the facts, the case is one of wilful murder or nothing, the jury is still entitled to return a merciful verdict of murder or manslaughter (Brown v R, supra; Kwaku Mensah v R [1946] AC 83; Bullard v R [1957] AC 635; Beavan v R (1954) 92 CLR 660).
3. The distinction between abstaining from telling a jury of the alternative verdicts and telling them that they may not return one of those verdicts is a very strong distinction in law (per Barton ACJ, in Brown v R, supra, at p 579), but it is a distinction which a jury might readily misunderstand unless it was clearly expressed, and they must not be misled into thinking that one of the lesser verdicts is actually beyond their power (per Dixon J, in Packett v R (1937) 58 CLR 190, at p 213).
4. There are some cases where the evidence points unmistakably either to wilful murder or nothing (As in the case of a premeditated killing by poisoning where the only question raised is whether the accused was the person responsible), or to murder or nothing else (eg homicide in the course of a rape) and to direct the jury in either of those cases that manslaughter was open to them, on the evidence, would be a misdirection, because it might lead to a compromise verdict and lessen the accused's chances of acquittal (Mraz v R (1955) 93 CLR 493).
5. Where, upon the evidence, it would be not impossible for the jury to take the view that the offence committed was only murder or manslaughter, or where on the evidence there could be any reasonable doubt as to the intent of the accused at the time of the killing, then the jury should be told that the alternative verdicts are open to them (Brown v R, supra, per Isaacs and Powers JJ, at p 593; Surridge v R (1942) 42 SR (NSW) 278). This is so whether or not the defence has relied on or even referred to such a view of the evidence (Mancini v DPP [1942] AC 1; [1941] 3 All ER 272; Kwaku Mensah v R, supra).
This statement of principles was affirmed in Jemielita v The Queen (Unreported, WASCA, Library No 950348, 27 July 1995). There, it was also held that when a jury asked if it had power to bring in a verdict of guilty to a lesser offence than the charge of wilful murder, the trial judge was obliged to answer that question in the affirmative and leave to the jury its legal capacity to return verdicts of guilty of murder or manslaughter.
In the present case, the State substantially relies upon the second principle of Dodd in asserting that an alternative count of manslaughter should now be left to the jury. In that regard it submits that:
There has been a material change, in that the second jury were unable to reach a verdict. Given that two juries have failed to reach a verdict, it is entirely appropriate that the prosecution should now plead manslaughter as an alternative count. Manslaughter is of course a statutory alternative verdict and merciful verdicts are well recognised in law (par 2 State's outline of submissions).
In my view, the fact that two juries have failed to reach a verdict has no bearing on the question whether an alternative verdict of manslaughter should be left to the jury at the third trial. Furthermore, if there is no evidence capable of sustaining that verdict, it would be clearly wrong to make it available to the jury on the basis that it provides (what would in reality be) a merciful compromise. In such circumstances, the only proper direction would be that if the jury are satisfied to the required degree of all elements of the offence of murder, they must convict of murder and there is no room for a verdict of manslaughter (Gammage v The Queen (1969) 122 CLR 444, Barwick CJ at 451 ‑ 452, and Menzies J at 460).
It follows that in the present case the alternative of manslaughter can only be left to the jury if there is some possible view of the evidence which would support that verdict. Although during the second trial I suggested that there was no such possible view, upon a closer examination of the evidence and the authorities, I now consider that I was mistaken in that opinion.
The evidence against CW provides a strong case that she agreed with Burns that he would assault and 'seriously hurt' her father. It was expressly contemplated by the two of them that the acts to be committed might include the poking out of her father's eyes or the cutting off of a finger. Quite obviously this evidence is capable of satisfying the jury beyond reasonable doubt that CW and Burns both intended that he would commit grievous bodily harm against the father.
CW then aided Burns in carrying out their plan by accompanying him to Bunbury and giving him directions to the Seafarers' Mission. She also aided him by 'stretching' the wire fence so that he could get inside the property.
In all of these circumstances it is clearly open to the jury to find CW guilty of murder on the basis that she first counselled, and then aided the commission of the grievous bodily harm which caused the death of her father; and that she did so knowing that Burns intended to commit that grievous bodily harm and/or having that intention herself.
However, at one point of her interview, CW also said that Burns 'just suggested things' and that she 'didn't know what he was going to do'. Furthermore, apart from the inference to be drawn from the discussion about 'cutting off a finger', there is no evidence that Burns was carrying a knife when travelling to Bunbury, or that CW realised that he might use a knife at the scene. It is therefore possible that the jury will have reasonable doubts as to the precise extent of what was agreed upon, and whether CW realised that Burns might intend to commit grievous bodily harm. (Although I might be drawing a long bow in suggesting this view of the evidence it is one that the jury could conceivably come to). If so, then the question arises whether as a matter of law in these circumstances the jury could find CW guilty of manslaughter.
It is well established that under either s 7 or s 8 of the Criminal Code, a principal offender can be found guilty of murder, and the aider or accessory convicted of manslaughter on a joint charge of murder: Saunders v The Queen [1980] WAR 183, 184 and 192; Warren & Ireland (1985) 15 A Crim R 317, 325; Nicolakis, Nicolakis & Franich (1988) 32 A Crim R 451, 459 and 265; Markby v The Queen (1978) 140 CLR 108, 112 ‑ 113; and R v Barlow (1997) 188 CLR 1, 10 ‑ 11. In that regard:
[A] person who takes part in or intentionally encourages conduct which results in a criminal offence will not necessarily share the exact guilt of the one who actually strikes the blow. His foresight of the consequences will not necessarily be the same as that of the man who strikes the blow, the principal assailant, so that each may have a different form of guilty mind, and that may distinguish their respective criminal liability. Several persons, therefore, present at the death of a man may be guilty of different degrees of crime - one of murder, others of unlawful killing, which is called manslaughter. Only he who intended that unlawful and grievous bodily harm should be done is guilty of murder. He who intended only that the victim should be unlawfully hit and hurt will be guilty of manslaughter if death results.
(Saunders at 192 quoting R v Smith [1963] 3 All ER 597.)
In the present case, the jury will need to firstly consider what CW 'either expressly commanded or realised might have been involved in the performance of the project agreed upon' (Saunders at 191). If the jury is satisfied beyond reasonable doubt that CW counselled and aided Burns while knowing or realising that he might deliberately inflict grievous bodily harm on her father, then the proper verdict would be guilty of murder. Alternatively, if the jury is satisfied that CW counselled and aided Burns intending herself that he would inflict grievous bodily harm on her father, then yet again the proper verdict would be guilty of murder.
If on the other hand the jury is satisfied beyond reasonable doubt that CW counselled and aided Burns to assault her father, but is not satisfied that she herself intended, or that she knew or contemplated that there would be a deliberate infliction of grievous bodily harm, then she would be not guilty of murder.
However, in these circumstances the jury could find CW guilty of manslaughter under s 8 of the Criminal Code if they are also satisfied that the death was a probable consequence of the carrying out of the plan that she and Burns had agreed upon. As was stated by Burt CJ in Saunders at 184:
[T]he application of that section to the facts of this case could sustain the verdict returned if the jury was not satisfied that the crime of murder was the probable consequence of the prosecution of the common intention to prosecute the unlawful purpose but was satisfied to the required standard of persuasion that the probable consequence of the prosecution of that purpose was the unlawful killing of the deceased amounting, in the circumstances, to manslaughter: Stuart v R (1974) 134 CLR 426 at 453 per Jacobs J (1974) 4 ALR 545. Or, expressed more shortly, 'if the plan was of such a nature that the use of enough violence to cause death appeared a probable consequence of carrying it out': Brennan v R (1936) 55 CLR 253 at 265 per Dixon and Evatt JJ.
For all of these reasons, I make the ruling that as a matter of law in the particular circumstances of the present case, it is open to the jury to bring in a verdict of guilty of manslaughter.
Whether it would be an abuse of process to prosecute the second count
In light of this ruling, the argument that it will be an abuse of process for the State to prosecute the alternative count of manslaughter largely falls away. Nevertheless, I feel I should address the suggestion that it is in some way unfair to CW for the alternative count to be introduced at the third trial.
The main concern raised by the defence is that the introduction of the alternative count will invite a compromise verdict from the jury and reduce the prospects of a complete acquittal. Although I understand this concern, it was not present at the first trial when both counsel agreed that the alternative verdict of manslaughter should be left to that jury. It is also a concern that can be met by a suitable direction to the jury at the third trial.
It is not suggested that CW in some way changed her position, or conducted her defence any differently, as a result of my decision at the second trial not to leave manslaughter to the jury. Her counsel did not express a strong view on that issue at the time, and I cannot see that there is anything unfair in the alternative count being left to the jury at the third trial.
Accordingly CW's application is refused.
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