Gittos v The State of Western Australia
[2024] WASCA 107
•12 SEPTEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: GITTOS -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 107
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 5 SEPTEMBER 2024
DELIVERED : 5 SEPTEMBER 2024
PUBLISHED : 12 SEPTEMBER 2024
FILE NO/S: CACR 52 of 2024
BETWEEN: RAYMOND GEORGE GITTOS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: HALL J
File Number : INS 69 of 2020
Catchwords:
Criminal law - Conviction appeal - Appellant and two co-accused jointly charged with murder - Appellant and two co-accused convicted after trial of murder - The State alleged that one or both of the appellant and a co-accused were criminally responsible under s 7(a) of the Criminal Code (WA) - Whether the trial judge erred in law in directing the jury that the appellant would be criminally responsible under s 7(a) if the jury were satisfied that the appellant and the co-accused acted in concert with each of them doing one or more acts in a series of acts which in combination caused the deceased's death
Legislation:
Criminal Appeals Act 2004 (WA), s 28(3), s 30(3)(b)
Criminal Code (WA), s 7, s 279
Result:
Extension of time in which to appeal granted
Leave to appeal granted
Appeal allowed
Retrial ordered
Category: B
Representation:
Counsel:
| Appellant | : | S Ramdhas |
| Respondent | : | K C Cook |
Solicitors:
| Appellant | : | Anthony Elliott |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Ban v The State of Western Australia [2020] WASCA 91
Campbell v The State of Western Australia [2016] WASCA 156; (2016) 50 WAR 331
L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545
O'Dea v The State of Western Australia [2022] HCA 24; (2022) 273 CLR 315
Taylor v The State of Western Australia [2023] WASCA 190
Warren v The Queen [1987] WAR 314
REASONS OF THE COURT:
On 5 September 2024, we made orders which had the effect of:
1.granting the appellant an extension of time in which to appeal;
2.granting leave to appeal on the sole ground of appeal;
3.allowing the appeal; and
4.setting aside the appellant's conviction of the offence of murder and ordering a new trial on that count.
We said that we would publish reasons for making those orders later. These are our reasons for making those orders.
Introduction
On 7 October 2021, the appellant was found guilty of murder, contrary to s 279 of the Criminal Code (WA) (Code), following a trial by jury. The appellant was sentenced to life imprisonment with a minimum non‑parole period of 23 years for that offence.
The course of the appellant's and his co-accuseds' trial is discussed in the reasons of this court in Taylor v The State of Western Australia.[1]
[1] Taylor v The State of Western Australia [2023] WASCA 190 [13] - [37] (Buss P & Mazza JA), [136] - [143] (Mitchell JA).
In summary, the State's case was that the deceased, Noel Taylor, arrived at his Merriwa home from work at about 4.40 pm on 27 February 2020. The only other persons in the home at that time were Lynette Taylor (Mr Taylor's wife, and the appellant's mother), John Starr (Ms Taylor's brother), Valray Starr (the elderly mother of Ms Taylor and Mr Starr) and the appellant (Ms Taylor's son from a previous marriage). Mr Taylor was seriously assaulted at the house and placed inside his own car. The appellant and Mr Starr drove Mr Taylor's vehicle away from the house just after 5.07 pm on 27 February 2020. They were followed by a vehicle driven by Ms Taylor in which Valray Starr was a passenger. Mr Taylor's vehicle was driven to a bush location and set alight using fuel purchased by Ms Taylor earlier in the afternoon, prior to Mr Taylor arriving home. Mr Taylor's remains were later found by police in the burnt‑out vehicle. His remains were so damaged by fire that forensic examination did not enable any conclusion to be reached as to the cause of his death.
The appellant, Ms Taylor and Mr Starr were charged with murdering Mr Taylor and tried jointly. In her opening address, the prosecutor accepted that exactly what happened to Mr Taylor after he arrived home was not known.[2] The State's case was that Mr Taylor was killed by either or both the appellant and/or Mr Starr in the execution of a plan they formulated with Ms Taylor to kill Mr Taylor. The State's case was that each of the appellant and Mr Starr was a party to the offence either as a person who unlawfully killed Mr Taylor or as a person who aided another to do so. Ms Taylor was alleged to be a party to the offence either by aiding the appellant and/or Mr Starr to unlawfully kill Mr Taylor, or by counselling or procuring the appellant and/or Mr Starr to do so.[3]
[2] Trial ts 119.
[3] Trial ts 1540 ‑ 1541.
On the State's case, four possible scenarios were open on the evidence, which, if accompanied by the requisite intention, made either or both of the appellant and Mr Starr criminally responsible for Mr Taylor's murder under s 7(a) of the Code:
1. Mr Starr assaulted Mr Taylor, resulting in injuries that were the sole cause of his death; or
2. The appellant assaulted Mr Taylor, resulting in injuries that were the sole cause of his death; or
3. Each of Mr Starr and the appellant inflicted injuries which, in each case, were by themselves sufficient to cause Mr Taylor's death; or
4. Each of Mr Starr and the appellant inflicted injuries which, in each case, were not by themselves sufficient to cause Mr Taylor's death, but which in combination were fatal.
The appellant did not give evidence at trial.[4] Ms Taylor and Mr Starr did elect to give evidence at trial.
[4] Trial ts 1500.
On Mr Starr's account, Mr Taylor died after being repeatedly kicked in the head and struck on the head with a baseball bat by the appellant.[5]
[5] Trial ts 868 - 873.
On Ms Taylor's account, the appellant pulled, while Mr Starr pushed, Mr Taylor out onto the back patio of the house. Mr Starr grabbed hold of Mr Taylor and 'flung' him onto the back pavement. Mr Starr then 'pounded' a silver aluminium bat into the left side of Mr Taylor's head numerous times. The force used was severe. Mr Starr then gave the appellant the bat and told him to 'have a go'. The appellant hit the left side of Mr Taylor's head twice with the bat, using much less force than Mr Starr. Mr Starr felt for a pulse and indicated that Mr Taylor was still alive. Mr Starr took the bat off the appellant and took one 'almighty swing' with the bat, which cracked Mr Taylor across the back of his neck. Mr Starr then said that Mr Taylor, who was not moving, was dead.[6]
[6] Trial ts 1248 - 1252.
The jury found all three accused guilty of murdering Mr Taylor. The jury's guilty verdicts indicate that they must have rejected the evidence of both Ms Taylor and Mr Starr, at least in part. The circumstantial evidence led by the State did not provide any basis for determining whether Mr Taylor's death was caused by the act or acts of the appellant, the act or acts of Mr Starr, or the combined acts of both men.
Appeal by Ms Taylor
Ms Taylor appealed against her conviction for the offence of murder. Neither the appellant nor Mr Starr had appealed against their convictions at the time this court heard the appeal against Ms Taylor's conviction. On 5 September 2023, this court made orders allowing Ms Taylor's appeal against conviction, setting aside her conviction and ordering a retrial. Reasons for that decision were published to the parties on 1 February 2024, but were generally suppressed at that time to avoid prejudicing Ms Taylor's retrial. However, the suppression orders did not prevent the publication of the court's reasons to the legal advisors of the appellant and Mr Starr. The appellant's current counsel, Mr A Elliott, received a copy of the reasons in Taylor on 7 February 2024.[7]
[7] See the affidavit of Mr Elliott sworn 27 May 2024, par 11.
The appellant's appeal
On 4 June 2024, the appellant instituted an appeal against his conviction of murder. The appellant commenced his appeal over two years and six months after the time provided for in s 28 of the Criminal Appeals Act 2004 (WA), which is 21 days, 'unless the Court of Appeal orders otherwise'. The appellant therefore requires an extension of time in which to appeal, which may be granted under s 28(3) of that Act.
On 19 August 2024, the appellant filed his appellant's case in the appeal. The sole ground of appeal contends, in essence, that the trial judge erred in law in instructing the jury as to the appellant's criminal liability under s 7(a) of the Code.
The State conceded that this ground of appeal is established, and that orders having the effect described in [1] above should be made. For the following reasons, we accepted that concession.
Disposition
Criminal liability of the three accused could only arise under s 7 and/or s 8 of the Code. Relevantly, under s 7(a) of the Code, '[e]very person who actually does the act or makes the omission which constitutes the offence' is deemed to have taken part in committing the offence and to be guilty of the offence. We discussed the relevant legal principles concerning the operation of s 7(a) of the Code in Taylor.[8]
[8] Taylor [59] - [77] (Buss P & Mazza JA), [147] - [161] (Mitchell JA).
One way in which the State contended the appellant to be criminally responsible was that he and Mr Starr were guilty of Mr Taylor's murder as parties to the offence under s 7(a) because, with the requisite intention, they each did at least one act in a series of acts that, in combination, caused Mr Taylor's death. That was held to be an available basis of criminal responsibility under s 7(a) in Warren v The Queen.[9] Warren had been applied by this court on various occasions.[10]
[9] Warren v The Queen [1987] WAR 314, 327 - 329.
[10] See L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545 [32]; Campbell v The State of Western Australia [2016] WASCA 156; (2016) 50 WAR 331 [17] ‑ [23]; Ban v The State of Western Australia [2020] WASCA 91 [153].
In dealing with the element of causation, the trial judge directed the jury that a person causes the death of another if his or her actions are a substantial or significant cause of death. The trial judge then said, consistently with the approach in Warren:[11]
In some cases, two people may act in concert, each doing acts which in aggregate cause the death of another. It may not be possible to determine exactly who did what, but it may be possible to be satisfied that they acted together, with the same knowledge and intention and, in that event, both would be responsible for the acts done.
This may be relevant in considering the evidence against John Starr and [the appellant]. For example, if you were satisfied that they both delivered blows whilst acting together, and that death was the combined effect of multiple blows delivered by them both, then both would be responsible for the death.
[11] Trial ts 1750.
The question trail provided to the jury identified the following question in relation to the appellant:[12]
Did [the appellant] either (a) kill Noel Taylor; that is, did he do an act that caused the death of Noel Taylor, either alone, or as part of a series of acts done in concert with John Starr, or (b) aid John Starr to kill Noel Taylor; that is, did he do an act that assisted John Starr to kill Noel Taylor with the intention of providing such assistance, and knowing that Noel Taylor was to be killed?
[12] Trial ts 1759.
On 10 August 2022, after the appellant's trial, the High Court delivered its decision in O'Dea v The State of Western Australia.[13] On the majority's reasons in O'Dea, it was not open to the jury to find the appellant criminally responsible under s 7(a) of the Code on the basis that he and Mr Starr acted in concert and, while doing so, caused Mr Taylor's death by the combination of the blows they each inflicted.
[13] O'Dea v The State of Western Australia [2022] HCA 24; (2022) 273 CLR 315.
It was entirely proper for the trial judge to follow the decisions of this court and its predecessor, the Court of Criminal Appeal, which were binding on his Honour, when giving this direction in October 2021. However, as in Taylor, this court is required to apply the subsequent decision of the majority in O'Dea when determining this appeal.
In the present case, the trial judge directed the jury that the appellant and Mr Starr could be criminally responsible under s 7(a) of the Code on the basis that they acted in concert, each delivering blows while acting together, the combined effect of which was to cause Mr Taylor's death. This process of reasoning is, in substance, the same process of reasoning which the majority in O'Dea held, on the proper construction of s 7(a), was erroneous and should not have been left to the jury.
In Taylor, Buss P and Mazza JA held that the trial judge's direction had the capacity to mislead the jury in relation to the appellant's criminal liability under s 7(a) of the Code. It had the capacity to lead the jury to find the appellant guilty on the basis of the fourth scenario set out at [6] above, contrary to the approach taken by the majority in O'Dea. There was a perceptible risk that the jury found the appellant and Mr Starr guilty solely on the basis of the fourth scenario. This constituted a wrong decision on a question of law within the meaning of s 30(3)(b) of the Criminal Appeals Act.[14]
[14] Taylor [82] - [83].
In Taylor, Mitchell JA held that, if the jury accepted Ms Taylor's account of events described at [9] above, they may have been satisfied, beyond reasonable doubt, that Mr Starr's acts in striking Mr Taylor to the head with a baseball bat were a factual cause that made a substantial or significant contribution to Mr Taylor's death. However, particularly in the absence of medical evidence, a jury might well have a reasonable doubt as to whether the appellant's two much less forceful blows with the bat substantially or significantly contributed to Mr Taylor's death. On that hypothesis, the jury might have understood the trial judge's direction to require them to find the appellant to be a party to Mr Taylor's murder under s 7(a) of the Code even if they were not satisfied, beyond reasonable doubt, that the blows struck by the appellant substantially or significantly contributed to Mr Taylor's death. There is a perceptible risk that the jury found the appellant guilty solely on the basis of the scenario described by the trial judge in the passage quoted at [17] above. This constituted a material wrong decision on a question of law.
On the approach of the majority of the High Court in O'Dea, and on the approaches taken by this court in Taylor, the trial judge's erroneous direction constituted a wrong decision by his Honour on a question of law within the meaning of s 30(3)(b) of the Criminal Appeals Act. We are not persuaded that the error was immaterial and could not have deprived the appellant of a chance of acquittal that was fairly open to him. The State properly accepts that the 'proviso' in s 30(4) of that Act cannot be applied in the circumstances.
Orders
While there was no adequate explanation for the whole of the delay in the appellant instituting the appeal, we considered that an extension of time should be granted on the basis that it is necessary to avoid a miscarriage of justice. We considered that leave to appeal should be granted, the appeal should be allowed and the appellant's conviction for the offence of murder should be set aside. The appellant correctly accepted that there should be an order for a retrial on the count charging him with murder. For these reasons, at the hearing of the appeal, we made the orders having the effect described at [1] above.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
Associate to the Honourable President Buss
12 SEPTEMBER 2024
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