SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
HINRICHSEN v THE KING
[2023] SASCA 111
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Doyle)
12 October 2023
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE OR JOINT CRIMINAL ENTERPRISE - DIRECTIONS TO JURY
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE OR JOINT CRIMINAL ENTERPRISE - SCOPE OF AGREEMENT
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - ACCESSORY BEFORE THE FACT
Application for permission to appeal against conviction and appeal against conviction.
The appellant, together with two co-accused (Skinner and Thrupp), was jointly charged with the murder of the appellant’s husband. The prosecution case against the appellant was that she was guilty of murder on two bases: as a party to a joint enterprise with Skinner or, in the alternative, as an accessory before the fact.
Following a trial before a judge and jury, the appellant was found guilty of murder. Skinner was also found guilty of murder. Thrupp was found not guilty of murder, but guilty of manslaughter.
The appellant sought permission to appeal on the following grounds:
1.the learned trial judge erred in law in not correctly and adequately directing the jury about what had to be proved for the appellant to be guilty of murder as an accessory before the fact;
2.the learned trial judge erred, and a miscarriage of justice was occasioned, by the failure to adequately direct the jury how to decide whether Skinner murdered the deceased for the purposes of whether the appellant was guilty of murder as an accessory before the fact;
2A. the learned trial judge erred in leaving to the jury the pathway of convicting the appellant of murder on the basis that she had been a party to a joint criminal enterprise with Skinner to kill or cause grievous bodily harm to the deceased;
2B. the learned trial judge erred in law in directing the jury to the effect that if one or more of Skinner and Thrupp committed the acts which caused the deceased’s death, the appellant would be guilty of murder on the basis of the principles of joint enterprise if she had, at that time, been a party to an understanding or arrangement with Skinner alone to kill or cause grievous bodily harm;
2C. the learned trial judge erred by failing to direct the jury that because the prosecution case was that there were separate joint criminal enterprises between Skinner and Thrupp, and Skinner and the appellant, it could only find the appellant guilty of murder according to joint enterprise principles if it was satisfied beyond reasonable doubt that physical acts done by Skinner caused the deceased’s death;
3.a miscarriage of justice was occasioned, or alternatively the conviction is unreasonable, because it was left open to the jury to convict the appellant of murder on the basis she was a party to a…
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- Hinrichsen v The King [2023] SASCA 111
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- [2023] SASCA 111
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CaseChat Overview and Summary
The primary legal issues before the court were whether the trial judge had erred in her directions to the jury regarding the fault element for accessory liability, specifically concerning the intention to encourage the commission of murder and the knowledge of the likelihood of its commission. Further issues included whether the trial judge had adequately related these directions to the facts, whether she was required to direct the jury on the objective capability of the encouragement, and crucially, whether she had erred in failing to direct the jury that the prosecution must exclude the reasonable possibility that any encouragement had been withdrawn or become spent. The court also considered whether the trial judge had properly directed the jury on the evidence admissible against the appellant when considering the primary offence committed by Skinner, and whether she had erred in failing to address the risk of the jury engaging in reasoning based on consciousness of guilt. Finally, the court examined directions relating to joint criminal enterprise liability.
The majority of the court, constituted by Lovell and Doyle JJA, held that while the trial judge correctly identified the fault element for accessory liability as requiring an intention to encourage murder, without necessarily requiring knowledge that the offence would occur, she erred in failing to direct the jury that the prosecution must exclude the possibility of withdrawn or spent encouragement. This was particularly relevant given the approximately 12-hour period between the key communication and the killing, and the defence's focus on this possibility. The majority also found an error in the trial judge's directions concerning the evidence admissible against the appellant when considering Skinner's murder, noting a risk that the jury might have treated Skinner's conviction as sufficient proof of this element for the appellant's accessorial liability. The majority further found that the trial judge erred in failing to address the risk of the jury engaging in consciousness of guilt reasoning without proper assistance. However, they found no error in the directions regarding joint criminal enterprise liability. Livesey P, dissenting in part, disagreed on the necessity of directing the jury on withdrawn encouragement, finding that it was not put into issue by the defence and that the trial judge's directions on separate consideration of evidence were clear.
The majority allowed the appeal on specific grounds relating to withdrawn encouragement, the admissibility of evidence against the appellant, and consciousness of guilt reasoning, setting aside the conviction and ordering a retrial. Livesey P, while agreeing to grant permission to appeal on some grounds, would have dismissed the appeal on others.
Orders
Orders of the court
Held (per Lovell and Doyle JJA), granting permission to appeal on grounds 2A, 2B, 2C and 3, and allowing the appeal on grounds 1.7, 2 and 4:
1. the trial judge’s directions correctly identified the fault element for the appellant’s potential liability for murder as an accessory before the fact. In particular, that fault element required that the appellant intended to encourage Skinner to commit the offence of murder, but did not require that she knew that Skinner would, or might possibly, commit that offence (grounds 1.1 and 1.2);
2. the trial judge properly related her directions on accessory liability to the facts of the case (grounds 1.3 and 1.5);
3. the trial judge was not required to direct the jury that conduct by which the appellant encouraged Skinner to murder the deceased was conduct that was objectively capable of encouraging Skinner to do so (ground 1.4);
4. the trial judge erred, or occasioned a miscarriage of justice, in failing to direct the jury that the prosecution case of accessorial liability required that it exclude as a reasonable possibility that any encouragement by the appellant had been withdrawn or nullified, or become spent, by the time the deceased was killed (ground 1.7);
5. in particular, there was evidence at trial that was capable of supporting the possibility that any encouragement by the appellant had been withdrawn or nullified, or become spent, during the approximately 12 hour period between the key text message relied upon as providing the relevant encouragement and the killing of the deceased. Defence counsel did not ever disavow any case to the effect that it was possible that any earlier encouragement was withdrawn or became spent, and indeed concentrated his closing address on the evidence and events which were capable of supporting that possibility;
6. the trial judge erred, or occasioned a miscarriage of justice, in failing to direct the jury that, when considering whether Skinner murdered the deceased – for the purposes of the first element of accessorial liability on the part of the appellant – it was necessary to do so by reference to only the evidence admissible against the appellant (ground 2);
7. in particular, whilst her Honour was generally careful to identify the evidence which was not admissible against the appellant, and the need to address the cases against each defendant separately, the first element of the case in accessorial liability against the appellant (namely, that Skinner murdered the deceased) raised a particular risk of the jury losing sight of the proper approach. Her Honour’s direction to the effect that if they found Skinner not guilty of murder, they could not find the appellant guilty of murder as an accessory before the fact, left a risk that the jury may have been lulled into thinking it was sufficient for them to treat their verdict of guilty against Skinner as establishing the first element of the appellant’s accessorial liability;
8. no error has been established in the trial judge’s directions in relation to the appellant’s potential liability for participation in a joint enterprise to murder the deceased (grounds 2A, 2B and 2C). It was not necessary for the trial judge to instruct the jury that they needed to exclude the possibility of Thrupp having committed one or more of the acts necessary to constitute the murder of the deceased. It was sufficient that her Honour directed the jury in clear terms that they had to be satisfied beyond reasonable doubt that the deceased was killed in accordance with the agreement between the appellant and Skinner;
9. no error has been established in the trial judge leaving it open to the jury to convict the appellant of murder on the basis she was party to a joint criminal enterprise with Skinner to murder the deceased (ground 3). Liability on that basis did not require the appellant’s physical presence whilst the acts constituting the murder were committed, and it was otherwise open on the evidence;
10. the prosecutor having invited the jury to engage in reasoning that relied upon a consciousness of guilt, the trial judge erred, or occasioned a miscarriage of justice, in failing to address the risk that the jury might engage in such reasoning without proper assistance (ground 4).
Held (per Livesey P, dissenting), dismissing the appeal on grounds 1, 2 and 4; otherwise agreeing with Lovell and Doyle JJA as to granting permission to appeal but dismissing appeal grounds 2A, 2B, 2C and 3:
11. there is a clear correlation between the conduct of counsel and the way in which the trial judge determines the real issues and directs the jury on those issues;
12. defences aside, where parties are represented by experienced and competent senior counsel it is likely to be an unusual case where it is necessary for a trial judge to sum up in a manner inconsistent with the way in which counsel has determined to run the case. There was a rational forensic justification for the approach of senior counsel;
13. real care must be exercised when considering whether there is a miscarriage of justice associated with the failure by the trial judge to address entirely new points which did not feature at the trial;
14. the question of withdrawn or “spent” encouragement by the appellant was never put into issue and the evidence did not require that it be addressed by the trial judge. There was no evidence to which the appellant could point to suggest that she had said or done whatever was reasonably practicable to countermand the effect of her earlier conduct (ground 1);
15. the trial judge gave clear directions which required that the jury consider the case against each accused quite separately and by reference to the evidence admissible against the particular accused. The aide-memoire did not detract from those directions. In so far as this ground was argued by reference to statements made by the appellant’s co-accused which were not made in her presence, the jury was explicitly told that these were only admissible against their makers and on a number of occasions that they were not admissible against the appellant (ground 2);
16. the prosecutor’s address was likely to have been regarded as a straight-forward attack on the credibility of the appellant’s account to police about her keys. The address did not suggest that the jury should, on account of what she told police, find that the appellant had lied and that this lie should be used in the determination of the appellant’s guilt (ground 4).
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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