Dianne Jennifer Lawford and Christianos Jacobus Van De Wiel v R No. 4247 Judgment Nos. SCCRM 93/246 and SCCRM 92/87 Number of Pages 16 Criminal Law and Procedure General Principles (1993) 69 a Crim R 115

[1993] SASC 4247

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DUGGAN(1), BOLLEN(2) AND MULLIGHAN(3) JJ

CWDS
Criminal law and procedure - general principles - criminal liability and capacity - Appellants convicted of murder - trial judge left 'murder by omission' to the jury as a possible basis for conviction - consideration of circumstances in which an omission to perform an act can constitute an element in the offence of murder or manslaughter - R v Taktak (1988) 34 A Crim R 334 and R v Gibbons and Proctor (1918) 13 Cr App Rep 134 referred to.
In course of directions on 'murder by ommission' jury instructed that malice aforethought would be established if an accused person recklessly refrained from performing a duty owed to the deceased because no thought was given to the risk to the deceased - held that the jury should have been directed that reckless indifference could only be relied upon as constituting the requisite state of mind if the accused knew that the omission would probably cause death or grievous bodily harm. Royall v The Queen (1990) 172 CLR 378 at 394; The Queen v Crabbe (1985) 156 CLR 464; R v Matthews (1984) 36 SASR 503 at 508 followed. Held that there had been a misdirection and that the proviso could not be applied. Wilde v The Queen (1987) 3l A Crim R 331 referred to. Discussion of proper direction to be given in cases involving the evidence of an accomplice co-accused. R v Webb and Hay (1992) 168 LSJR. 256 followed.

HRNG ADELAIDE, 21-22 September 1993 #DATE 5:11:1993
Counsel for appellant Lawford:         Ms M E Shaw
Solicitors for appellant Lawford:     Legal Services
   Commission
Counsel for appellant Van de Weil:     Mr S Tilmouth QC
Solicitors for appellant Van de Weil: Legal Services
   Commission
Counsel for respondent:                 Mr B Jennings QC
   with him Mr R Jensen
Solicitors for respondent:             Director Of Public
   Prosecutions

ORDER
Appeals allowed.

JUDGE1 DUGGAN J The appellants were convicted of the murder of a young man named Serbert at Elizabeth West on about 26 April 1990. At the time of Serbert's death the appellant Lawford was residing with the appellant Van de Wiel and his wife. During the week prior to his death Serbert had spent a good deal of time in the company of the Van de Wiels and Lawford and it would appear that during this time Lawford and Serbert discussed the possibility of living together in a de facto relationship. 2. On Thursday 26 April 1990 the appellants, Mrs Van de Wiel and Serbert drank at various hotels in Salisbury and Elizabeth. According to the evidence of a Mr Cotter he drove them home from one of the hotels shortly before 7.00 pm. Mr Cotter left a short time later. At 1.28 am on 27 April there was a telephone request for ambulance officers to attend the Van de Wiels' house. When the ambulance officers arrived a short time later Serbert was found lying dead on the dining-room floor. Later a pathologist, Dr Gilbert, observed a narrow band of bruising at the front of the deceased's neck. This was consistent with the application of a ligature to the neck. He also observed numerous injuries to the head and body of the deceased. According to his evidence some of the marks were consistent with infliction by a blunt instrument and others by a sharp instrument. 3. The appellants were interviewed by the police on a number of occasions. At first each of them told the police in separate interviews that they had returned home to find that the house had been broken into and that the deceased's body was lying on the floor. Eventually, however, each admitted that this was a false story and they then proceeded to give differing accounts as to how the deceased came by his injuries. 4. The evidence given by the appellants at trial followed, for the most part, the final versions given to the police. Lawford said that after they had returned from the hotel and at about 8.50 pm she and Mrs Van de Wiel went in a taxi to the deceased's house to pick up some clothes. They returned shortly after 9.30 pm. She said that upon their return she saw the deceased and Van de Wiel standing in the dining-room. The deceased had blood over his face and shirt. She asked Van de Wiel what he had done and he replied "I didn't do anything". 5. Lawford said that they proceeded to clean up the blood which was on the floor and Van de Wiel took the deceased to the bathroom where he was placed under the shower with his clothes on. Later, said Lawford, they were seated around a table in the dining area and an argument developed over the suggestion that Lawford might marry the deceased. In the course of this altercation Van de Wiel picked up an iron bar and hit the deceased several times. He then handed the bar to Lawford and told her to hit the deceased, which she did a couple of times. Van de Wiel then told her to cut a section from a piece of cloth. She did so and then placed it around the deceased's neck. Van de Wiel said "Finish him off". She pulled hard on the cloth and Van de Wiel pushed the deceased's hands down so that he could not remove the ligature. The deceased then fell to the ground and made a gurgling sound. Thereafter he showed no sign of life. At the trial Lawford said she did not know why she acted in this way, but in an interview with the police she admitted she intended to kill the deceased. She then discussed with Van de Wiel and Mrs Van de Wiel the possibility of concocting a story about a break-in. 6. Van de Wiel said that he went to bed after Mr Cotter left. At one stage he got up to obtain a drink in the kitchen and he heard Lawford and the deceased arguing in the dining-room. Van de Wiel stated that he then went to sleep and was unaware of the fact that the two women went to the deceased's house. He was awoken by his wife and went out into the kitchen. He saw Lawford with a steel bar in her hand. The deceased was sitting on a chair and Lawford hit him over the head with the bar. Van de Wiel said he took the bar from Lawford as she prepared to strike the deceased again. He told her to stop it and to clean up the blood which was on the floor. 7. According to Van de Wiel he went back to bed but in response to a call from his wife some time later he returned to the dining-room and saw the deceased lying half-naked on the floor. Lawford was pulling on a cloth which was wrapped around the deceased's neck. Van de Wiel tried to prevent her from continuing, but she pushed him away. She was saying to the deceased, "You have to die". 8. Van de Wiel gave confused and sometimes conflicting evidence of the events of the evening. At one stage in his evidence he gave another version of the events which he said transpired after he entered the dining-room on this occasion. He said that the deceased was sitting on a chair and Lawford had the cloth around his neck pulling on it. Van de Wiel and his wife restrained Lawford and loosened the cloth. The deceased was told to take off his trousers and put them in the washing machine. At some later stage Van de Wiel said he saw the deceased lying on the floor while Lawford pulled on the cloth until the deceased exhaled a long breath as his head dropped sideways. When giving this version Van de Wiel said that he went back to bed and later Lawford came to the bedroom and said "He is very quiet, I think I killed him". 9. The respective tasks of the learned trial judge in summing up and the jury in assessing the evidence were made more difficult by conflicting evidence given by the two pathologists who were called; Dr Gilbert who conducted the post-mortem examination and Professor Pluekhahn who was called as part of Lawford's case. 10. Dr Gilbert deposed to the finding of multiple injuries on the deceased which indicated that he had been severely beaten about the head, shoulder and thighs with a blunt instrument and that he had received a number of other injuries inflicted with a sharp instrument. At the conclusion of the post-mortem examination he was unable to reach any confident conclusion as to the cause of death. However, as a result of the police interview with Lawford and the suggestion of strangulation arising from it, he reviewed his findings and concluded that death could well have been due to strangulation. 11. Whereas Dr Gilbert thought that the time of death would have been between 9.00 pm and 10.30 pm (he conceded that he would have to allow a fairly wide tolerance on this estimate), Professor Pluekhahn thought that it was most probable that death was not earlier than some time between 11.30 pm and 12.30 am. He said that the possibility that the deceased was alive when he fell to the floor after the cloth had been pulled around his neck and that he had died from a combination of blood loss and the effects of alcohol and a drug found in his body, coupled with factors of shock or hypothermia, could not be excluded. 12. The prosecution relied substantially on Lawford's version of the incident together with Dr Gilbert's evidence as to the cause of death. In short, the prosecution contended that Lawford joined in an assault on the deceased by Van de Wiel and that he assisted her while she strangled the deceased, thus causing his death. Van de Wiel's case was based on his assertion that he inflicted no violence on the deceased and attempted to prevent Lawford from harming him. Lawford's case for acquittal rested on her assertion that Van de Wiel had apparently attacked the deceased while she and Mrs Van de Wiel were absent from the house. If Professor Pluekhahn's view that strangulation may not have caused death were accepted then, it was argued, the deceased could well have died from the injuries inflicted by Van de Wiel. 13. In his summing-up on the elements of the offence of murder and the offences which could be the subject of an alternative verdict the trial judge dealt first with the case against Lawford. His Honour explained that Lawford would be guilty of murder if, by her voluntary and deliberate act or acts, she killed the deceased without lawful excuse and with the intention of either killing him or causing him grievous bodily harm. His Honour then dealt with the alternative state of mind capable of constituting malice aforethought, namely, recklessness. These directions were given against the background of the prosecution case that Lawford had killed the deceased by strangulation. 14. The learned trial judge then dealt with "murder by omission". These directions are central to the complaints made against the summing-up and I will return to them in more detail at a later stage. In essence the learned trial judge told the jury that if Lawford, by means of an unlawful and deliberate act committed against the deceased, created a situation whereby she must have appreciated that there was an immediate risk of death unless she took steps to prevent or minimise adverse consequences to the deceased resulting from her act, and if she deliberately refrained from taking such steps whilst possessing the malice aforethought required for murder and the risk thereby created resulted in the deceased's death, she would be guilty of murder. Manslaughter was also left to the jury as an alternative to murder by omission. 15. Finally his Honour directed the jury that they could return a verdict of guilty of murder under the heading of "substantial or significant cause". He explained that this could arise if the jury concluded that death resulted from a combination of deliberate and unlawful acts by both appellants but was not attributable solely and directly to Lawford's actions. The jury were told that they could convict Lawford of murder if her actions were a substantial or significant cause of death and committed with malice aforethought. 16. The main ground of appeal raised by each appellant complains of the directions relating to murder by omission. It was not disputed in the course of argument that in certain circumstances the crime of murder or manslaughter might be committed by a failure to act as opposed to the carrying out of some positive act or acts. In some jurisdictions specific reference is made to omissions in the definitions of murder and manslaughter (see eg. Crimes Act, 1900 (NSW) s.18(1)(a)) and although the cases dealing with such liability are few and far between, there is authority for the proposition that at common law the offence of murder may, in certain circumstances, be committed by a failure to take action. 17. Many of the relevant authorities are set out in a most useful summary provided by Yeldham J in R v Taktak (1988) 34 A Crim R 334. The issues raised in the present case do not necessitate a review as extensive as that undertaken in Taktak's case, but a consideration of some of the authorities is necessary in order to identify the circumstances in which a failure to act can be relied upon as part of the proof of homicide. 18. Most of the cases on homicide by omission deal with the offence of manslaughter. We were referred to only one case in which a conviction for murder was recorded. In R v Gibbons and Proctor (1918) 13 Cr. App. Rep. 134 the two accused, who were living in a defacto relationship, were convicted of the murder of the male accused's seven year old child. The child died of starvation in the house in which the family lived and the prosecution alleged that the couple intentionally withheld food from it. The Court of Criminal Appeal held that in the case of the female accused she had assumed a duty to look after the child and the omission to do so by withholding food, taken in conjunction with the necessary intention and causative link, constituted the offence of murder. 19. The court in Gibbons and Proctor approved the decision in R v Instan
(1893) 1 QB 450, an authority on manslaughter by omission. In that case the accused was convicted of the murder of her elderly aunt with whom she lived. The deceased suffered from a disease which prevented her from fending for herself and it was established that her death was accelerated by want of food and medical attention. The conviction for manslaughter was upheld on the basis that: "The prisoner was under a moral obligation to the deceased from which arose a legal duty towards her; that legal duty the prisoner has wilfully and deliberately left unperformed, with the consequence that there has been an acceleration of the death of the deceased owing to the non-performance of that legal duty." 20. In Taktak the accused was convicted of manslaughter. He had procured a 15 year old prostitute to attend a party at the home of an acquaintance and had later received a telephone call from the acquaintance advising him to collect the girl. He found her lying in the foyer of a building. She was unconscious as a result of consuming drugs. He took her to his home and attempted to revive her but the prosecution alleged that he did not provide her with sufficient care. She subsequently died. The conviction was quashed by Yeldham and Loveday JJ on the ground that any failure to obtain medical assistance did not amount to the high degree of negligence or recklessness required for manslaughter. Carruthers J concluded that the evidence did not establish that the omission to obtain treatment was the proximate cause of death. He was also of the view that criminal negligence was not proved. 21. Carruthers J stated that the elements of the offence were as follows:
    "(1) That the appellant owed a duty of care in law to Miss
    Kirby.
     (2) That it was the omission of the appellant to obtain
    medical treatment which was the proximate cause of Miss Kirby's
    death.
     (3) That such omission by the appellant was conscious and
    voluntary, without any intention of causing death but in
    circumstances which involved such a great falling short of the
    standard of care which a reasonable man would have exercised and
    which involved such a high risk that death would follow that the
omission merited criminal punishment." 22. At common law liability for a failure to act is exceptional and in the case of homicide the limited authority that there is restricts liability to situations where there is a duty to perform a particular act. (The Queen v Phillips (1971) 45 ALJR 467 at 477.) In Taktak's case it was held that the accused assumed a duty to take care of the deceased girl by removing her while she was helpless from a situation in which others might have rendered assistance to her. Examples of situations in which similar duties might be said to arise are also to be found in the Criminal Law Revision Committee 14th Report (UK) para 252 where it is said:
     "(i) a parent is under a duty to his young children (under
    common law and also by the Children and Young Persons Act 1933
    as mentioned above);
     (ii) one who voluntarily undertakes the care of a helpless and
    infirm person owes a duty to that person (Nicholls (1874) 13 Cox
    75);
     (iii) members of a household in which a person becomes infirm
    and helpless may be held to have assumed a duty to that person
(Stone and Dobinson (1977) QB 354);
     (iv) there may be a duty under a contract of employment where
    omission to perform the duty is likely to endanger the lives of
    others whether or not they are parties to the contract (Pittwood
(1902) 19 TLR 37);
     (v) where there is a right and the ability to control the
    actions of others, there may be a duty to exercise that right in
    order to prevent the commission of a crime. This may result in
    liability as a secondary party if the other is guilty of an
offence, as in Rubie v Faulkner (1940) 1 KB 571, where the
    supervisor of a learner driver failed to supervise the driver
    and was convicted of aiding and abetting the driver to drive
    without due care and attention;
     (vi) where the defendant has himself put a person in danger by
    a wrongful act, he is probably under a duty not to leave that
    person in danger;
     (vii) where the defendant holds a public office which requires
    him to care for others he has a duty to do so, as for example in
Curtis (1885) 15 Cox 746, where the relieving officer for a
    local authority was held liable for manslaughter by an omission
    for neglecting to provide medical assistance to a destitute
person and Dytham (1979) 3 All ER 641, where a uniformed police
    officer stood within 30 yards of a club from which a man was
    being ejected and made no move to intervene whilst the man was
    noisily kicked to death in the gutter." 23. In the present case it was not suggested that a duty to act arose simply by reason of the fact that the appellants and the deceased lived together for a short time in the same house. The learned trial judge's direction in the case of the appellant Lawford seems to be based on the assumption that the deceased was rendered unconscious by Lawford and therefore placed in a dangerous situation in the house without assistance. The example given in para (vi) of the Criminal Law Revision Committee Report is close to the circumstances of the present case, although the suggestion that these facts would give rise to a relevant duty has been questioned. (See commentary in 43 MLR 681 at 685) Nevertheless I am of the view that the principles discussed in Taktak's case support the proposition that if Lawford was responsible for the deceased being rendered unconscious and placed in a dangerous situation as a consequence, a duty to take positive action to render assistance would arise. But, of course, this is only one aspect of liability. The other elements of the crime of murder must be proved and the directions as to these elements form the main focus of the arguments on appeal. 24. When discussing Lawford's case in this respect the learned trial judge directed the jury as follows:
    "So far I have been merely directing my attention to what
    are no more and no less the first thrust, if you like, of what
    Mr Millsteed says to you. There are in fact two other secondary
    bases of the Crown case which could lead you to a verdict of

    guilty of the offence charged by somewhat different routes, and
    I will deal with those successively. We come back now to
    paragraph 17 of your aide-memoire. This is what I loosely
    call, and as is loosely called in the legal text books, murder
    by omission. The first route I have talked about in there.
    This is a bit of a mouthful but if you follow the aide-memoire I
    think it won't be too bad to understand. If you come to the
    conclusion on the evidence that by her deliberate voluntary and
    unlawful act, the accused Lawford rendered Serbert into a state
    of unconsciousness in circumstances whereby, due to the injuries
    which he had received from whatever source, and his condition of
    nakedness in the cold environment in which he lay, she must have
    appreciated that there was obvious, serious and immediate risk
    that he might die unless she initiated such steps as were in her
    power, either perhaps by means of her own actions, or by seeking
    help from others - to lead to his resuscitation, or otherwise
    prevent or minimize any adverse consequences to him resulting
    from her actions, he being unconscious of course and unable
    himself to seek help at that point, and she deliberately
    refrained from doing so, intending him to die or sustain
    grievous bodily harm, and the risk thereafter eventuated by
    Serbert's death as a result of his injuries and their effects in
    the environment in which he was left, then she is guilty of the
    crime of murder. That is a great mouthful, but I think it is
    clear enough is it not? A similar end result would also be
    reached if she recklessly so refrained, either because she just
    did not give any thought to what was a patently obvious risk of
    the nature to which I have referred, or because she might have
    recognised the existence of that risk, she nonetheless decided
to take the risk, and decided to do nothing to assist Serbert." 25. The first criticism which is made of this direction is that it did not adequately deal with the aspect of causation, an issue which was the subject of conflicting evidence in the case. If any failure to act was to be relied upon as an element of the offence of murder it was essential that such failure was an operating and substantial cause of death. (R v Hallett (1969) SASR 141 at 150). The only reference which might be said to relate to the element of causation in the passage which I have quoted is the comment "and the risk thereafter eventuated by Serbert's death as a result of his injuries and their effects in the environment in which he was left". The "risk" relates back to the earlier reference to the "immediate risk" that Serbert might die unless the appellant Lawford took steps to render or obtain assistance. The reference to "immediate risk" was made in a part of the direction dealing with the appellant's state of mind and in my view there was room for confusion in the jury's mind as to the relevance and importance of causation in the context of this part of the summing-up. 26. But a more obvious error is apparent in the learned trial judge's direction on malice aforethought. It will be seen that after explaining that the necessary intention would be established if the appellant Lawford intended Serbert to die or sustain grievous bodily harm his Honour went on to add the direction which I have underlined. The first limb of the direction in the underlined passage which contemplates that the appellant's mind may not have adverted to the risk of death or grievous bodily harm is a serious misdirection. It was also referred to in the aide-memoire which was given to the jurors to assist them in their deliberations. In that document the alternative state of mind was expressed as: "Recklessly refrained either because no thought of patently obvious risk, or recognised risk but decided to take risk." 27. On a charge of murder the jury must be instructed that reckless indifference can only be relied upon as constituting the requisite state of mind if it is proved that the accused knew that the act, or in this case the omission, would probably cause death or grievous bodily harm and that the risk was consciously accepted. (Royall v The Queen (1990) 172 CLR 378 at 394; The Queen v Crabbe (1985) 156 CLR 464; R v Matthews (1984) 36 SASR 503 at 508.) By postulating circumstances in which the appellant Lawford might have acted recklessly in not giving any thought to the risk, the summing-up confused the concepts of recklessness in the sense in which it is sometimes used in directions on manslaughter and conscious risk-taking of the type which can constitute the state of mind required for murder. Furthermore, as the cases referred to above make clear, the alternate state of mind relevant to the offence of murder is concerned with foresight of probable consequences. It follows that the summing-up is also defective in that by using the word "might" in the passage cited above it suggests that possible consequences are sufficient. 28. Mr Jennings QC for the Director of Public Prosecutions quite properly conceded that at least insofar as the direction on recklessness was concerned, the summing-up in relation to the appellant Lawford was defective. However he argued that no substantial miscarriage of justice had occurred by reason of the error and that it was appropriate for this court to apply the proviso to s.353(1) of the Criminal Law Consolidation Act. 29. Some guidance in the application of the proviso was given in the judgment of Brennan, Dawson and Toohey JJ in Wilde v The Queen (1987) 31 A Crim R 331. Their Honours 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 (1955) 93 CLR 493 at 514 or 'a real chance of
    acquittal' to use the phrase of Barwick CJ in Storey (1978) 140
    CLR 364 at 376. 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 (1977) 137 CLR 517 at 524; Storey (at 376); Gallagher
(1986) 160 CLR 392 at 412-413; 20 A Crim R 244 at 259. Unless
    that can be said, the accused may have lost a fair chance of
    acquittal by the failure to afford him the trial to which he was
    entitled, that is to say, a trial in which the relevant law was
    correctly explained to the jury and the rules of procedure and
    evidence were strictly followed: see Mraz at 514. The loss of
    such a chance of acquittal cannot be anything but a substantial
    miscarriage of justice. The question whether the jury would
    inevitably have convicted falls to be determined by the Court of
    Criminal Appeal. It is a question which the Court of Criminal
    Appeal must answer according to its assessment of the facts of
    the case." 30. Although the prosecution did not request a direction on "murder by omission" and its case was predicated upon the circumstances to which I have earlier referred, this avenue for a conviction on the charge of murder was left to the jury as a clear alternative in both the body of the summing-up and the aide-memoire. The learned trial judge returned to the topic shortly before the jury retired. Whilst not encouraging the jurors to proceed along these lines he told them that the concepts of murder by omission or alternatively, by substantial or contributing cause "cannot be ignored". 31. Whereas the basis upon which the Crown sought a conviction was explained to the jury, the availability of this alternate route to conviction was identified and its relevance underlined. With respect to his Honour I think it was an unnecessary complication bearing in mind the bases upon which the case was put by the prosecution and defended by the appellants. But it was left as an option and it is not difficult to see that a solution along the lines of the impugned directions might well have had attractions for the jury. It avoided the necessity of considering some of the potentially difficult problems of causation present in the case and it watered down the requisite state of mind. It also had the potential to focus attention on circumstances outside the central area of debate between the prosecution and defence. Although I have taken into account Mr Jennings' submissions as to the respective strengths of the Crown and defence case I am of the view that this is one of those cases in which the significance of the irregularity and not the weakness of the defence case is the primary consideration. (R v Couper
(1985) 18 A Crim R 1 at 5.) As Lawford's conviction may have been based on the erroneous directions it cannot be said with confidence that she has not lost a chance which was fairly open to her of being acquitted and I would allow her appeal on this ground, quash the conviction and order a re-trial. 32. It is convenient at this point to deal with the argument advanced on behalf of the appellant Van de Wiel that the misdirection which I have been discussing in relation to Lawford was carried over into the case against him. The passage on murder by omission which I have set out above is to be found in a part of the summing-up dealing only with Lawford. 33. However, Mr Tilmouth QC for Van de Wiel argued that when the trial judge came to deal with the case against his client he gave the impression that the same principles were applicable as an alternate route for convicting his client. 34. In order to understand this argument it is necessary to consider in more detail the structure of this part of the summing-up. His Honour dealt first with the case against Lawford. He divided this discussion into what he called the "Primary Crown Case" and the "Secondary Crown Case" against her. The Primary Crown Case was based on the prosecution's assertion that Lawford had strangled Serbert and that Van de Wiel had restrained him at the same time. It was against this background that his Honour defined the crime of murder in terms of a deliberate and unlawful killing accompanied by an intention to kill or cause grievous bodily harm or, alternatively, forseeability of such harm coupled with a determination to proceed nevertheless. His Honour then dealt with the alternative verdict of manslaughter which, he said, could arise either because of an unlawful and deliberate killing without the intention necessary for murder or by way of provocation. His Honour went on to leave attempted murder and attempted manslaughter to the jury. I should add that in my view Mr Jennings was correct in agreeing with the suggestion put to him in argument that these directions on attempt were unnecessary from a practical viewpoint. 35. The learned trial judge then dealt with the "Secondary Crown Case" against Lawford. This comprised the murder by omission directions together with the further alternative which his Honour labelled "murder by reason of substantial or significant cause". Then his Honour left as an alternative to both murder by omission and murder by reason of substantial or significant cause verdicts of manslaughter based on either provocation or unlawful killing. 36. At this stage the trial judge turned his attention to the case against Van de Wiel. Under the heading "Primary Crown Case" he explained the elements of murder in the context of the Crown allegation that Van de Wiel was a party to the acts of violence including the beating with the iron bar and the strangulation allegedly inflicted by Lawford. He then dealt with the alternative verdict of manslaughter available because of an unlawful killing or through provocation. 37. His Honour then turned his attention to what was referred to in the course of addresses as the "Griffin Thesis" because it had been advanced by Mr Griffin who was then acting for Lawford. It was based on the assertion that the deceased died as a result of blows inflicted on him by Van de Wiel. It was at this stage of the summing-up that his Honour gave the directions which are relied upon by Mr Tilmouth as adopting, in the case of Van de Wiel, the impugned directions on murder by omission which were given in Lawford's case. 38. His Honour said:
    "However, that having been said, this is a possible
    scenario, the Griffin thesis, to which you will have to give due
    and careful consideration in the course of your deliberations.
    The relevant principles of law which I have explained to you
    apropos the preferred Crown case apply equally to Mr Griffin's
    thesis apropos Van de Wiel. If you consider that it was Van de
    Wiel who struck various blows to Serbert's head and thereby
    caused, or substantially, or significantly contributed to his
    death, then you would be entitled to find him guilty of murder,
    if you are satisfied that this resulted from deliberate,
    unlawful and voluntary acts on his part and that he either
    specifically intended to kill Serbert or cause grievous bodily
    harm to him or, alternatively, intentionally by his voluntary
    unlawful acts struck Serbert, thereby ultimately causing his
    death, foreseeing that death or grievous bodily harm would
    probably result from his action, that is to say being reckless
    as to that probable outcome. He, therefore, potentially could
    be the subject of the same line of reasoning as that secondary
    path that we talked about in relation to the accused Lawford." 39. Before dealing with Mr Tilmouth's argument it is helpful to make some general observations about the summing-up. The case gave rise to a number of complex issues and it is clear that the learned trial judge gave considerable thought as to how they would be presented to the jury. The summing-up occupied over 260 pages of transcript. It was commenced on a Saturday and resumed on the Monday morning. In order to assist the jurors to place the alternative bases of liability into appropriate categories his Honour used descriptive labels of the type to which I have already referred. These labels were also used as headings in the aide-memoire provided to the jury. I mention this because the labels and headings acquired more significance than might normally be the case and they were essential to the jurors' admittedly difficult task of identifying in their minds the various categories of liability and the alternatives referred to in the summing-up. 40. It is against this background that Mr Tilmouth argued that the reference in the last passage which I have quoted to the "Secondary path that we talked about in relation to the accused Lawford" would have been interpreted by the jury as an allusion to the "Secondary Crown Case" spoken of in connection with Lawford, namely, the alternative of murder by omission. If that were so then, according to the argument, the misdirection would apply equally to the case of Van de Wiel. 41. There is undoubtedly some ambiguity in the underlined passage. As I have said, Mr Tilmouth contended that it referred back to murder by omission. Mr Jennings argued that it referred to the category of "murder by reason of substantial or significant cause". A further alternative might be that it was simply intended to describe foresight of consequence and deliberate risk taking as opposed to a specific intention to cause grievous bodily harm. 42. In my view his Honour did not intend that the murder by omission directions should apply in the case of Van de Wiel, but there is room for concern that the jury might well have attached particular significance to the description "Secondary path that we talked about in relation to the accused Lawford" and associated it with the misdirection given under the heading of the "Secondary Crown Case" against Lawford. In the summing-up his Honour also refers to the "two other secondary bases of the Crown case" against Lawford before going on to discuss murder by omission and murder by reason of substantial or significant cause, but as murder by omission is one of these bases there is the danger that the jury considered that the earlier directions on this topic applied also to the case against Van de Wiel. There is the further consideration that the term "reckless" is used in the underlined passage and "recklessly" is used in the directions on murder by omission whereas neither word is used in the directions on murder by substantial or significant cause, although the concept of foresight of consequence is referred to in the latter directions. Foresight of consequence was referred to by his Honour in the directions relating to Van de Wiel. However the subsequent reference to "being reckless" coupled with the earlier direction in Lawford's case that recklessness could be established if an accused did not give any thought to consequences and that this was an alternative state of mind to that involving foresight of consequence, gives rise to a serious concern that the jury might have applied the earlier misdirection to Van de Wiel's case. The misdirection was not corrected by the time recklessness was discussed in Van de Wiel's case or at all. 43. Although the position is not as clear as it is in the case of Lawford, I have reached the conclusion that the jury may well have been misled in the manner in which I have suggested. It cannot be said in my view that the jury would have reached the same conclusion if the summing-up in relation to Van de Wiel had not been vitiated in this way and it follows that his conviction should also be set aside. 44. Although it is unnecessary for the disposal of the appeal, it is nevertheless appropriate to deal with the only other ground of appeal advanced by the appellants. Both appellants complain of the fact that the trial judge gave the jury the usual warning concerning the danger of convicting on the uncorroborated evidence of an accomplice. His Honour commenced his direction on corroboration by saying:
    "In this case, the question immediately arises with respect
    to the evidence of the accused Lawford in so far as that
    evidence seeks to implicate the accused Van de Wiel in the crime
    charged. In technical terms, this evidence is to be regarded as
    that given by what is classified in law as an accomplice of Van
    de Wiel. Conversely, a similar consideration arises on the
    Crown case in relation to evidence given by the accused Van de
    Wiel which implicates the accused Lawford in Serbert's death.
    He is to be regarded, for present purposes, as an accomplice of
    Lawford.
     In legal parlance, the word 'accomplice' means one who is a
    party to the actual crime committed, so it is said, and who is
    chargeable with the same crime as that with which the accused is
    charged, and that is, of course, the Crown allegation in this
    case. That being so, I am required to point out to you that it
    has been the experience of the courts over many years that the
    evidence of accomplices is frequently unreliable. Accomplices
    sometimes seek to justify their own conduct. In doing so, it is
    far from unknown for them to seek to shift the blame, wholly or
    partly, onto others, or to at least implicate them in some
    fashion. In the process, in practice, they have been known to
    construct untruthful stories which tend to exculpate the guilty
    and attempt to implicate persons who could be innocent. For
    that reason, it is incumbent upon me, and it is in fact a rule
    of law, to direct you that it is dangerous to convict an accused
    person on the evidence of an accomplice unless that evidence is
corroborated." 45. He then went on to explain the nature of corroboration and to relate these directions to the facts of the case. He explained that the warning applied to the evidence of each appellant insofar as it might be used against the other. 46. The difficulties encountered in giving warnings in cases involving the evidence of an accomplice co-accused were discussed by this court in R v Webb and Hay (1992) 168 LSJS 256, a case decided well after the trial in the present matter. After a review of conflicting authorities both in this court and elsewhere the Court of Criminal Appeal reached the view that the rule, whether it be of law or practice, laid down in Davies v Director of Public Prosecutions (1954) AC 378 requiring a warning to be given in the case of accomplice evidence should not be extended to witnesses who are not called by the prosecution. However the learned Chief Justice added:

    "That does not necessarily mean that no caution should be
    given in relation to the evidence of an accused person which
    inculpates a co-accused. The general principle enunciated by
Gibbs CJ in Bromley v The Queen (1986) 161 CLR 315 at p.319 may
    well apply: 'What is required, in a case where the evidence of
    a witness may be potentially unreliable, but which does not fall
    within one of the established categories in relation to which
    the full warning as to the necessity of corroboration must be
    given, is that the jury must be made aware, in words which meet
    the justice of the particular case, of the dangers of convicting
    on such evidence. Where a warning is required as to the way in
    which the jury should treat the unsupported evidence of a
    witness whose evidence is potentially unreliable, the question
    is "Was that warning sufficient? Did it in clear terms bring
    home to the jury the danger of basing a conviction on the
    unconfirmed evidence of the complainants?" (1986) AC at p.141.
    There is nothing formal or technical about this rule.' I
    consider that in the generality of cases in which an accused
    person gives evidence inculpating a co-accused, it would be
    necessary, or at least desirable, to advise the jury to exercise
    caution in relying upon that evidence alone to convict a
    co-accused because of interests of his own which the
implicating accused has to serve." 47. In the view of the Chief Justice and the other members of the court who concurred with his judgment a caution of this nature need not offend the principles referred to in Robinson v The Queen (1991) 102 ALR 493, a decision in which the High Court held that it was inappropriate for the jury to be told that an accused person's interest in the outcome of a case should lead them to scrutinise his or her evidence closely. However the Chief Justice cited with approval the following passage from R v Henning (unreported judgment of the Court of Criminal Appeal (NSW) delivered on 11th May, 1990):
    "It is essential in the interest of the accused who gives,
    the evidence that the warning should be restricted in terms to
    those parts of the evidence which inculpate any co-accused. It
    must be made clear to the jury that the warning is to be applied
    only when they are considering the case against the co-accused.
    It must not be left open to them to believe that the warning
    might attach to the accused's evidence in his own case." 48. The learned trial judge's directions as to corroboration in the present case were given at a time when the opinion expressed by Bray CJ in R v Rigney
(1975) 12 SASR 30 that the accomplice warning applied in the case of an accomplice co-accused was frequently followed in this State. In the event of a re-trial it would be appropriate to give a warning to the jury along the lines suggested in R v Webb and Hay. 49. It was argued that the directions in this case did not distinguish adequately between the appellants as witnesses against each other and as witnesses in their own cases. In the light of my views as to the main ground of appeal it is unnecessary to consider in detail the question as to whether the jury were misdirected on this aspect. However I should state my view that there was no misdirection. The jury were not directed in a manner contrary to Robinson's case and the learned trial judge explained that the appellants were to be considered as accomplices for the purposes of the warning simply because they were charged with the crime. He also made it clear later in his summing-up that they were not obliged to give evidence and that their testimony was to be given the weight it deserved. No qualification was placed on this direction although in my view it would have been preferable in the circumstances if the learned judge had specifically pointed out that their evidence was to be assessed in the same manner as that of any other witness in the case. 50. Criticism was also directed towards his Honour's comment that if corroboration exists then the warning ceases to apply. Looked at in one way that is a logical approach in the light of the terms of the warning itself, namely, that it is dangerous to convict on the uncorroborated evidence of the accomplice. The traditional corroboration warning is concerned with uncorroborated and not corroborated evidence. However a comment to the effect that the warning no longer applies if corroboration is present can give the impression that special care is no longer needed in assessing the witness's evidence. (R v Radford, unreported decision of Court of Criminal Appeal (Vic) No. 81 of 1992 at p.54). The jury may well have to be reminded of the dangers of acting on the evidence of the witness whether corroboration is present or not and of course a warning of the type contemplated in R v Webb and Hay need not necessarily refer to corroboration. In that case the court cited with approval the discussion as to the appropriate form of caution in Henning where it was said:
    "But different principles apply when the supposed
    accomplice who gives evidence against a co-accused is himself an
    accused giving evidence in his own case. It would be difficult
    indeed to seek to apply inflexible rules to such situations.
    For the interests of justice will almost certainly require
    different responses in different circumstances. Considerable
    latitude must be allowed in order to enable trial judges to
    address the situation in a manner which will adapt to the
    competing interests in the particular case. As the Court of
    Appeal said in Knowlden (at 100): 'The form of adoption ...
    where, as here, the witness is a co-defendant, is always a
    matter for the discretion of the trial judge. In exercising
    this discretion, he is at the least to be expected to give the
    customary clear warning to a jury where defendants have given
    damaging evidence against one another to examine the evidence of
    each with care because each has or may have an interest of his
    own to serve. Whether he should also advise the jury to look
    for corroboration of the evidence of a co-defendant and specify
    what evidence may or may not be corroboration will be decided by
    him, having regard to the nature and severity of the attack made
    by one co-defendant on another. The need for this advice should
    rarely arise in our experience since the simple customary
    warning will suffice to ensure that the jury regards the
    evidence in question with proper and adequate caution. The
    content of whatever kind of warning or advice is given is best
    formulated by the trial judge and, although invited to, we
    decline to introduce through this judgment a formula which trial
    judges should use no matter what circumstances confront them.'
     We consider that this is a sensible approach and one which it
    would be appropriate to adopt here." 51. In the circumstances of the present case I am of the view that sufficient direction was given as to the matters to be taken into account when considering the evidence of each accused in relation to the other and in my opinion there was no misdirection which would warrant the setting aside of the convictions on this ground. 52. For the reasons which I have already given, however, I am of the view that the appeals should be allowed, the conviction of each appellant set aside and a re-trial ordered in relation to each appellant.

JUDGE2 BOLLEN J I agree with the orders proposed by Duggan J and with his reasons.

JUDGE3 MULLIGHAN J I agree that the appeal should be allowed for the reasons expressed by Duggan J and I agree with the orders which he proposes. With respect to the learned Trial Judge, I do not think this is a case of murder by omission even on the basis left to the jury and I agree that conviction of each appellant cannot stand for the reasons expressed by Duggan J.