Hinrichsen v The King
[2023] SASCA 111
•12 October 2023
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 joint criminal enterprise with Skinner to murder the deceased; and
4. a miscarriage of justice was occasioned by the learned trial judge’s failure to adequately direct the jury in relation to the prosecution counsel’s submissions to the jury about what the appellant told police about her house keys.
Permission to appeal was not required with respect to ground 1, was previously granted with respect to grounds 2 and 4, and was referred for hearing in conjunction with the appeal with respect to ground 3. Permission to add grounds 2A, 2B and 2C was granted on the hearing of the appeal.
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).
Crimes Act 1900 (NSW) ss 52, 351; Criminal Procedure Act 1921 (SA) s 158, referred to.
Alford v Magee (1952) 85 CLR 437; Attorney-General’s Reference (No 1 of 1975) [1975] QB 773; Attorney General v Able [1984] 1 QB 795; Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; Blundell v The Queen (2019) 279 A Crim R 302; Braysich v The Queen (2011) 243 CLR 434; Capital Traction Co v Hof 174 US 1 ; Cesan v The Queen (2008) 236 CLR 358; Clayton v The Queen (2006) 81 ALJR 439; Commonwealth Bank of Australia Kojic (2016) 249 FCR 421; Dickson v R (2017) 94 NSWLR 476; Edwards v The Queen (1993) 178 CLR 193; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; Fingleton v The Queen (2005) 227 CLR 166; Gilbert v The Queen (2000) 201 CLR 414; Giorgianni v The Queen (1985) 156 CLR 473; Hasler v Singtel Optus Pty Ltd (2014) 87 NSWLR 609; Howell v Doyle [1952] VLR 128; Huynh v The Queen (2013) 87 ALJR 434; IL v The Queen (2017) 262 CLR 268; Kalbasi v Western Australia (2018) 264 CLR 62; King v The Queen (2003) 215 CLR 150; Lenzi v Miller [1965] SASR 1; Likiardopoulos v R (2010) 30 VR 654; Macklin’s Case (1838) 2 Lewin 225 168 ER 1136; McAuliffe v The Queen (1995) 183 CLR 108; Miller v The Queen (2016) 259 CLR 380; Mitchell v The King (2023) 97 ALJR 172; O’Dea v Western Australia (2022) 96 ALJR 710; Orreal v The Queen (2021) 96 ALJR 78; Osland v The Queen (1998) 197 CLR 316; Pemble v The Queen (1971) 124 CLR 107; Perera-Cathcart v The Queen (2017) 260 CLR 595; RJE v Secretary to the Department of Justice (2008) 21 VR 526; R v Anderson [1966] 2 QB 110; R v B, FG (2012) 114 SASR 170; R v Collinson (1831) 4 Car & P 565; R v Golding & Edwards (2008) 100 SASR 216; R v Jensen [1980] VR 194; R v Johns [1978] 1 NSWLR 282; R v Lam (2008) 185 A Crim R 453; R v Lowery and King [No 2] [1972] VR 560; R v Lovesey [1970] 1 QB 352; R v Pearce (1929) 21 Cr App R 79; R v Ready [1942] VLR 85; R v Rich (1997) 53 A Crim R 483; R v Sheppard [2010] QCA 342; R v Sully (2012) 112 SASR 157; R v Taufahema (2007) 228 CLR 232; R v XY (2013) 84 NSWLR 363; Weiss v The Queen (2005) 224 CLR 300; White v Ridley (1978) 140 CLR 342; Zoneff v The Queen (2000) 200 CLR 234, considered.
HINRICHSEN v THE KING
[2023] SASCA 111Court of Appeal – Criminal: Livesey P, Lovell and Doyle JJA
LIVESEY P:
Introduction
The appellant, Tanya Hinrichsen, was charged jointly with Gavin Skinner and Robert Thrupp of the murder of Stephen Hinrichsen on 15 December 2018 at Morphett Vale. At the time of his death, the deceased and the appellant were married.
The prosecution maintained that in the early hours of 15 December 2018 Skinner and Thrupp walked from Astrid Street, Christie Downs, to the deceased’s home at Nathan Court, Morphett Vale, arriving between 5.00 am and 6.00 am. The prosecution case was that they then killed the deceased.
All three were tried before a jury between 21 June and 28 July 2021. Skinner was found guilty of murder. Thrupp was found not guilty of murder but guilty of manslaughter.
The case against the appellant was based on joint criminal enterprise or, alternatively, liability as an accessory who intentionally counselled or procured Skinner to murder her husband. The appellant was found guilty of murder. Whether the jury found the appellant liable for murder based on joint criminal enterprise or as an accessory cannot be known.
The appellant appeals against her conviction for murder. These reasons address only three of the appeal grounds, being appeal grounds 1, 2 and 4, as follows:
1.The learned trial Judge erred at law by 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.
Particulars
1.1 Failed to direct the jury that at the time of the conduct by which it was alleged the appellant counselled or procured Skinner to murder the deceased, it had to be proved that she knew that Skinner was going to intentionally inflict grievous bodily harm to, or kill, the deceased.
1.2 Failed to direct the jury that the appellant would not be guilty of murder if at the time of the conduct by which she was alleged to have counselled or procured Skinner to murder the deceased, she only knew that Skinner might possibly intentionally inflict grievous bodily harm to, or kill, the deceased.
1.3 Failed to relate her directions at SU44 in relation to the second element of murder as an accessory before the fact to the facts of the case.
1.4 Failed to direct the jury that it had to be proved that the conduct by which the appellant counselled or procured Skinner to murder the deceased was conduct that was capable of counselling or procuring Skinner to do that.
1.5 Failed to specifically identify the appellant’s conduct which the jury was to consider when it decided if the appellant had intentionally counselled or procured Skinner to murder the deceased (SU45).
1.6 Wrongly directed the jury that conduct by the appellant, which was not capable of being conduct by which she intentionally counselled or procured Skinner to murder the deceased, was relevant to whether she had done so, namely the assault of the deceased on 16 November 2018 (SU57) and the assault of the deceased and subsequent conversation with Skinner on 26/11/18 (SU45, SU67/68).
1.7 Failed to direct the jury that it had to be proved that at the time the deceased was murdered the appellant had not withdrawn her encouragement to Skinner to murder the deceased and that her conduct was still capable of encouraging Skinner to do that (that is, its effect was not spent).
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.
Particulars
2.1 The jury should have been directed that they must freshly consider whether it had been proved that Skinner murdered the deceased and must ignore any conclusion they reached about Skinner’s guilt of murder on the evidence admissible against him.
2.2 The jury should have been directed that they must decide if it had been proven that Skinner murdered the deceased using only the evidence that was admissible against the appellant.
2.3 The learned trial Judge’s direction that if the jury found Skinner not guilty of murder, they could not find the appellant guilty of murder as an accessory before the fact, was misleading. It wrongly suggested that the jury’s verdict with respect to Skinner was relevant to whether it had been proven he murdered the deceased for the purposes of the appellant’s guilt.
…
4.A miscarriage of justice was occasioned by the learned trial Judge’s failure to adequately direct the jury in relation to the prosecution counsel’s submissions to the jury about what the appellant told police about her house keys.
Particulars
4.1 The appellant told police she noticed on the morning after the murder occurred that her keys were placed differently on her key ring to how they usually were.
4.2 At the end of her closing address on 19 July 2021, prosecution counsel invited the jury to accept that this claim by the appellant was, “... a late desperate conniving attempt to distance herself from providing those house keys to Skinner and, therefore, from the truth of her involvement in this crime.” This [sic] submissions clearly invited the jury to use the appellant’s lie as evidence of her consciousness of her own guilt and as an implied admission of guilt.
4.3 The issue with respect to the house keys was an indispensable intermediate fact in proof of the appellant’s guilt.
4.4 The learned trial Judge summed up to the jury seven days later, on 26 July 2021. Other than a very brief general direction on lies (SU154) nothing was said in the summing up about the prosecutor’s closing submission to the jury.
The first two appeal grounds address aspects of the directions given by the trial judge on the alternative case against the appellant, based on accessorial liability. The fourth appeal ground addresses certain comments made by the prosecutor at the conclusion to her final address which it is said invited ‘consciousness of guilt’ reasoning, which was both impermissible and inadequately addressed by the trial judge in her summing up.
The parties were agreed that the first appeal ground raised a question of law for which permission to appeal was not required.[1]
[1] Criminal Procedure Act 1921 (SA), s 157; permission to appeal was earlier granted for appeal grounds 2 and 4. The question of permission to appeal grounds 3 and 5 was referred for argument as on appeal.
I would dismiss appeal grounds 1, 2 and 4. The directions on accessorial liability were not defective and assisted the jury in the determination of the appellant’s liability for murder as an accessory.[2] The conclusion of prosecution closing address did not invoke consciousness of guilt reasoning. These reasons are set out as follows:
[2] The issue of withdrawal did not feature at the trial and the evidence did not require that it be left to the jury.
The case against the appellant Hinrichsen.......................................................................... [9]
The prosecution case against Skinner and Thrupp............................................................. [12]
An overview of the prosecution evidence......................................................................... [15]
Two relevant features of a criminal trial........................................................................... [53]
The trial judge must give directions on the ‘real’ issues’......................................... [54]
A party is ordinarily bound by the conduct of counsel.............................................. [64]
The conduct of this trial: opening and defence closing, summing up.................................. [90]
The prosecution opening....................................................................................... [91]
The defence ‘opening’ and closing......................................................................... [94]
The directions on accessorial liability in this case................................................. [107]
Appeal ground 1: accessory before the fact.................................................................... [113]
The contentions of the appellant........................................................................... [113]
Addressing the first five criticisms – accessorial liability....................................... [120]
The first criticism................................................................................................ [135]
The second criticism........................................................................................... [147]
The third criticism............................................................................................... [158]
The fourth criticism............................................................................................. [162]
The fifth criticism................................................................................................ [177]
The sixth criticism: withdrawal or whether encouragement was “spent”................ [181]
Appeal ground 2: out of court statements made by the appellant’s co-accused.................. [199]
Appeal ground 4: consciousness of guilt........................................................................ [221]
Conclusion................................................................................................................... [233]
The case against the appellant Hinrichsen
The case of joint criminal enterprise against the appellant was that she was party to an agreement or arrangement with Skinner to kill or cause grievous bodily harm to the deceased and that she intentionally participated in that agreement by giving Skinner her house keys. In this way, Skinner was able to enter the deceased’s home where he and Thrupp caused the deceased’s death.
The case that the appellant was guilty of murder as an accessory before the fact was that she intentionally counselled or procured Skinner to murder the deceased before he was killed by Skinner and Thrupp.
The trial judge left an alternative verdict of manslaughter against the appellant. That case was based on the contention that the appellant was guilty of manslaughter if she had entered into an agreement to assault the deceased, that they participated in that agreement and that in the course of carrying out the agreement another party committed voluntary and deliberate acts which were dangerous and unlawful and caused the death of the deceased, and the appellant foresaw the possibility that another party to the agreement might inflict a dangerous act with an intention to commit harm.
The prosecution case against Skinner and Thrupp
The case of joint criminal enterprise against Skinner and Thrupp was that they were parties to an agreement or arrangement with each other to kill or cause grievous bodily harm to the deceased. The prosecution contended that they participated in that agreement by inflicting the fatal wounds, or being present when those wounds were inflicted, as part of their agreement.
The extended joint criminal enterprise case against Skinner and Thrupp was that they were parties to an agreement or arrangement with each other to assault the deceased, that they each participated in that agreement by being present when the fatal wounds were inflicted and, in the course of carrying out their agreement, one of the accused inflicted the fatal wounds with an intention to kill or cause grievous bodily harm whilst the other foresaw the possibility that the first accused might inflict violence on the deceased with an intention to kill or cause grievous bodily harm.
The trial judge left an alternative verdict of manslaughter against Skinner and Thrupp, based on the contention that, if they had entered into an agreement to assault the deceased and they participated in that agreement, that in the course of carrying out the agreement another committed voluntarily and deliberate acts which were dangerous and unlawful and caused the death of the deceased and the accused foresaw the possibility that another party might inflict a dangerous act with the intention to commit harm. As has been noticed, Thrupp was convicted of manslaughter.
An overview of the prosecution evidence
It is only necessary to mention aspects of the evidence led at the trial which are relevant to this appeal. Some of this material was not admissible against the appellant. As will be seen, in this complex case the trial judge was careful to direct the jury as to the evidence which was and was not admissible against the appellant.
The appellant and the deceased had been married for around 14 years but by the time of his death the deceased was incapacitated, and for some time the appellant had been caring for him. Their three children had been taken into care by Families SA. The deceased, Skinner and the appellant had known each other for some years. Around two months before the deceased’s death, the appellant and Skinner had commenced a sexual relationship. The appellant wished to leave the deceased and live with Skinner. The appellant told police that Skinner was described in her mobile phone contacts as ‘Future husband’.
The deceased, however, had been trying to persuade the appellant to remain in their marriage.
Extensive texts and multimedia messages extracted from the mobile phones used by the appellant, Skinner and the deceased featured prominently in the prosecution case.[3] These and other messages revealed that the appellant knew about two earlier assaults of the deceased undertaken by Skinner during November 2018, in the month before his death.
[3] Exhibits P20, P21 and P28.
The first was an assault of the deceased in his home on 16 November 2018. On 15 November 2018 the appellant and Skinner had spent the night together, with the appellant sending a message to Skinner “I’m here, waiting for my husband” to which Skinner replied, “Be there shortly, baby”. On the morning of 16 November, the appellant messaged Skinner, “He’s alive but has a bruised cheek”. Skinner replied, “Should be the right hand side” and, after the appellant reported that the deceased told her he had been bashed outside, Skinner responded, “WTF LOL it was in your bed, the lying fuck”, together with “I might have to do a better job next time”.
There was evidence that the deceased had a bruised face and a swollen and painful left elbow, and attended at the Noarlunga Hospital on 17 November 2018. There was also evidence that Skinner had presented to the same hospital the day before with a fractured scaphoid bone which was later bandaged.
The appellant later told police that before Skinner and Thrupp bashed the deceased on 16 November, the deceased and Skinner had a heated conversation on her phone. She drove Skinner and Thrupp to the deceased’s home. She gave them the front door key. Skinner and Thrupp disguised themselves. She parked down the end of the street, not knowing what was going to happen, not wanting to know what happened. She guessed they were going to put some fear into the deceased for not leaving her alone.
In addition, there was evidence before the jury suggesting that Skinner had assaulted the deceased in his home a second time on 26 November 2018. On this occasion the appellant was present.
Before that second assault, in messaging at around 11 pm on 24 November 2018, the appellant complained about being kicked out of her bed and sleeping on the couch, to which Skinner replied:
Skinner: If he wants to carry on I will knock him out again.
Appellant: How about come round tomorrow. I want to piss him big time. Is that okay?
Skinner: Hmmmm ...
Appellant: I’m [sic] just had enough being here. He really needs to go.
Skinner: I can do that tonight not a problem.
Appellant:But I’ve got nowhere to go when you do this.
Skinner: Hmmmm ...
Appellant I should be getting $150 for my wedding set so maybe do it tomorrow night.
Skinner:A knife to the throat should do the job.
Appellant:Don’t wanna know what happens. Is that okay?
Skinner:I’m so tempted to do it tonight especially the mood I’m in atm.
Appellant:Well…But how am I going to get to your place. Please calm down just for me.
In later messaging just before midnight, the appellant asked Skinner to tell her when he was on the way so that she could go out, and then:
Appellant:Well… it’s up to you now. I’m sorry but this needs to be done. I don’t care if I drive the car around the corner why u do it.
Skinner:After … I need to get rid of some clothes.
In text messaging between Skinner and the appellant on 26 November 2018 at 5.29 pm, just before the second assault, the following messages were exchanged:
Appellant: STEVE [the deceased] has to go.
Skinner: What’s wrong now…??
Appellant: All I can say is he needs to go.
An audio file from Skinner’s mobile phone recorded what was alleged to be the assault of the deceased by Skinner on 26 November 2018 at around 6.11 pm. The appellant could be heard to tell Skinner repeatedly to leave.
After the appellant and Skinner left the house, Skinner said, amongst other things, “Next move he’s dead, I am serious”. Hinrichsen said in response that she had been waiting for Skinner to grab a knife from the kitchen, to which Skinner said, “Na that’s the next move” before remarking “I’ll stab him in the fucking neck, I don’t give a fuck”.[4] Later that evening, at 11.42 pm they exchanged the following messages:
Skinner: I should have killed that fucking cunt.
Appellant: I know babe.
[4] Exhibit P22.
In a discussion between the deceased and police on the evening of 26 November 2018, the deceased told police that whilst in his wheelchair he had just been assaulted by Skinner and that the appellant had got Skinner out of the house so that, in effect, he suffered only minor wounds.
On 26 November 2018 police spoke with Skinner and the appellant about the assault of the deceased earlier that evening at Nathan Court.[5]
[5] Exhibits P23 and P24.
The prosecution led evidence that after a call initiated by an insurance company, the appellant had taken out an insurance policy or plan providing cover for accidental death or injury of $50,000 and funeral expenses of $4,000. The appellant was a policy holder and beneficiary of the policy relating to her husband, the deceased. In telephone calls made on 4 and 12 December 2018 the appellant asked the insurance company about coverage for cancer and about life insurance and funeral benefits. The appellant was told that a different policy was required for cancer or life insurance coverage. The appellant told the insurer that her husband had broken his femur twice was recently diagnosed with cancer and she wanted to know whether he was covered. She was told that he should be covered.
In her directions to the jury as to the deceased’s motive, the trial judge warned that the evidence was unclear as to whether the appellant would receive any benefit under the insurance policy if the deceased was murdered.
On 9 December 2018, the deceased made a missing person’s report concerning the appellant. When police found Skinner and the appellant near the Onkaparinga River, they were described as being annoyed about what they regarded as interference by the deceased.
The prosecution led evidence from the occupants of Astrid Street, Ms Varney, the aunt of Thrupp, and Mr Stretton, her stepson. Ms Varney spoke about conversations between Skinner and Thrupp indicating antipathy towards the deceased. As the trial judge had done repeatedly with a number of items of evidence, she made the use of this evidence clear to the jury. Her Honour explained that this evidence was not admissible against the appellant.
The evidence from Mr Stretton included that in December 2018 he had seen Skinner together with “Tracey”, the appellant, almost daily in the lounge room at Astrid Street, talking and hugging romantically. He heard the appellant tell Skinner and occasionally Thrupp how much she hated her ex-partner, and that he was hitting her or being rude and aggressive to her. This occurred on 10 occasions over a few months. He heard Skinner say “We should go round there” and “sort him out”.
There was a large body of text messages between Skinner and the appellant, and the appellant and the deceased, between 14 and 15 December 2018, when the deceased was murdered.
During the evening of 14 December 2018, the appellant complained to the deceased that he had to stop taking over her life and their marriage was finished. This message was in response to the deceased refusing permission for Skinner to stay over.
Later that evening, the appellant messaged Skinner at 6.06 pm, telling him that she had found out that the reason why the deceased would not let Skinner stay over was that the house was in his name. She told Skinner she loved him and that she needed to move out as soon as possible. Soon after, at 6.09 pm on 14 December 2018:
Skinner: Soooooo ready to go on a hunting spree … .
Appellant: If it’s to do him Then I’ll give you my permission.
Skinner: I absolutely don’t give a fuck atm … Dead set … .
After this “hunting spree” exchange, in subsequent messaging over the next few hours, the appellant again told Skinner that she loved him, and she was scared of losing him.
At around 8.00 pm that evening, Skinner told the appellant that he had a better solution and the appellant responded that she was going to the Christies Beach Police to figure out what to do.
There was evidence that late in the evening of 14 December 2018, at around 11.00 pm, the appellant went to Astrid Street and met with Skinner and, at around 12.05 am on 15 December 2018, together they went to the Christies Beach Police Station. There they had a discussion with police in which the appellant sought advice about how she might leave the deceased. That conversation was covertly recorded by Skinner on his mobile phone.
At around 12.23 am on the morning of 15 December 2018, Skinner messaged Thrupp asking, in effect, whether he wanted to have some fun. Soon after, Skinner messaged the appellant, telling her to “Come in, need to discuss. Might have a place”.
There was evidence from Thrupp’s daughter that she had offered to let her father, Skinner and the appellant move into her flat at around this time. She also gave evidence that she travelled with Thrupp, Skinner and the appellant in the appellant’s car to Nathan Court that evening to collect some of the appellant’s clothes and belongings. Thrupp’s daughter said she heard Skinner going off at the deceased, and she asked the appellant whether she wanted her to discourage Skinner going off at the deceased, to which the appellant agreed. She then told Skinner to leave the appellant’s husband alone, after which Skinner drove them back in the appellant’s car to Astrid Street.
Thrupp’s daughter said that after they returned to Astrid Street, the appellant lay down on the couch in the lounge room and went to sleep. She saw that the appellant was still asleep at a later time when she could not see Skinner and Thrupp at Astrid Street.
There was evidence at the trial, which included CCTV footage and mobile phone data, demonstrating that Skinner and Thrupp walked from Astrid Street to Nathan Court between 5.00 am and 6.00 am and then walked back again shortly after 7.00 am. On the prosecution case, this was when they killed the deceased.
Thrupp’s daughter gave evidence about a conversation with Skinner after he returned to Astrid Street. She said that Skinner told her that he had heard sirens and that the deceased had committed suicide. She said that Skinner referred to “blood” and started to yell, repeating that they did not go back there. She also spoke about a conversation with her father in which she asked whether the deceased had committed suicide. After she told Thrupp that this is what Skinner had told her, Thrupp said, “Every dog gets his day”.
Later in the morning of 15 December 2018, the appellant drove from Astrid Street to her former home at Nathan Court. She said that she discovered the deceased’s body. She made a triple zero call to police at around 9.00 am.
Messaging between Skinner and the deceased from 9.09 am commenced with:
Appellant: Steve’s dead.
Skinner: Oh my fuckn god baby … so wish I was there to comfort you …
What the fuck happened … ???
When police attended, they found no evidence of any forced entry into Nathan Court. This was said to support the prosecution contention that the appellant had given Skinner her keys to Nathan Court. For the defence, it was contended that the evidence did not exclude that Skinner or Thrupp or both had simply taken the keys from the appellant’s bag whilst she slept. Alternatively, the defence contended that Skinner might have retained the house keys after he used the appellant’s car keys when he drove her car back from Astrid Street. The house and car keys were on the same key ring.
Expert pathology evidence demonstrated that the deceased had sustained at least 65 separate applications of force. Death was caused by multiple stab wounds and incised wounds, leading to extensive loss of blood.
The prosecution evidence linked Skinner and Thrupp to the crime scene. Statements taken by police from the appellant after 9.00 am on 15 December 2018 were to the effect that she denied being party to any agreement to kill or cause grievous bodily harm to the deceased, and she denied having given her house keys to Skinner.
Skinner was interviewed by police and his record of interview was before the jury. Though Thrupp gave an informal statement and an addendum statement to police, he declined to participate in any formal interview. Both denied any involvement in the deceased’s death.
Neither the appellant, Skinner nor Thrupp gave evidence at the trial.
Two relevant features of a criminal trial
There are two features of a criminal trial which it is helpful to bear in mind when addressing the appellant’s contentions, particularly the contention that any encouragement from the appellant to Skinner was withdrawn or ‘spent’ by the time the deceased was murdered (appeal ground 1.7). The first relates to the role of the judge, and the second relates to the role of defence counsel in the conduct of a criminal trial before a jury.
The trial judge must give directions on the ‘real issues’
Fundamental to our system of criminal justice is the right of an accused to receive a fair trial according to law. A concomitant of that right is the duty of the judge presiding over a jury trial to ensure fairness and balance so as to avoid any miscarriage of justice. The duty to ensure fairness and balance at the trial is usually achieved by the instructions, directions and warnings given by the trial judge to the jury, both as to the law and the application of the law to the evidence, as well as the case which the accused makes:[6]
The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes.
[6] RPS v The Queen (2000) 199 CLR 620, 637 [41] (Gaudron ACJ, Gummow, Kirby and Hayne JJ).
In the ordinary course of a criminal appeal, as here, the appeal court will be called upon to determine whether an evidentiary ruling or a direction given by the trial judge in the course of the trial, or less commonly before trial, resulted in the accused being deprived of a fair trial and led to a miscarriage of justice.[7]
[7] Dietrich v The Queen (1992) 177 CLR 292, 299-300 (Mason CJ and McHugh J).
The instructions, directions and warnings which the trial judge must give are those essential to the resolution of the “real issues” in the case. The real issues are those necessary to address the verdicts required of the jury, which are defined by the charges laid, the defences relied on and the evidence relevant to the determination of those issues.[8]
[8] Alford v Magee (1952) 85 CLR 437, 466.
As the High Court said in Alford v Magee, directions about the law are only necessary in so far as they bear on the real issues in the case; it is not necessary for a trial judge to provide instruction about the general law without regard to the real issues which “will generally narrow themselves down”.[9] Diplock LJ explained in R v Mowatt that a “general dissertation” on some aspect of the criminal law is not required:[10]
The function of a summing-up is not to give the jury a general dissertation upon some aspect of the criminal law, but to tell them what are the issues of fact on which they must make up their minds in order to determine whether the accused is guilty of a particular offence.
[9] Alford v Magee (1952) 85 CLR 437, 466.
[10] R v Mowatt [1968] 1 QB 421, 426 (Diplock LJ).
Just as it is not necessary to instruct the jury on the criminal law generally, it is not necessary to give directions on every legal or factual issue that might conceivably arise on the evidence. Rather, it is only necessary to instruct the jury on so much of the law and the facts as is necessary to guide the jury to a decision about guilt based on the real issues in the case.[11] Indeed, in Huynh v The Queen the High Court referred to Alford v Magee in this context:[12]
The contention that it is an error of law for a trial judge to omit to instruct a jury on all of the elements of liability for an offence cannot stand with the many decisions of this Court affirming the statement of the responsibility of the trial judge in Alford v Magee.[13] The duty is to decide what the real issues in the case are and to direct the jury on only so much of the law as they need to know to guide them to a decision on those issues. The application of the principle was illustrated in Alford v Magee by reference to the trial of an accused for larceny at which the sole issue is proof of the taking away of the thing stolen. In such a case it is neither necessary nor desirable to instruct the jury on the elements of the offence of larceny. Commonly liability does not reduce to a single factual question at the trial and the trial judge’s responsibility will not be as readily discharged as in the celebrated illustration of Sir Leo Cussen’s “great guiding rule”.[14] Discharge of that responsibility will usually involve instruction respecting the elements of the offence[15] and, where appropriate, the principles governing accessorial or joint enterprise liability. This is not to say that the omission to specify an element of liability that is not in issue in the trial is legal error.
[11] Alford v Magee (1952) 85 CLR 437, 466 (Dixon, Williams, Webb, Fullagar and Kitto JJ). As was pointed out in R v Adrakakos [2003] VSCA 170, [11] (Ormistion JA), this principle from Alford v Magee has been re-affimed in the High Court many times.
[12] Huynh v The Queen (2013) 87 ALJR 434, [31].
[13] Alford v Magee (1952) 85 CLR 437, 466 (Dixon, Williams, Webb, Fullagar and Kitto JJ); and see R v Getachew (2012) 248 CLR 22, [29] (French CJ, Hayne, Crennan, Kiefel and Bell JJ) and the cases set out therein at footnote 35.
[14] Alford v Magee (1952) 85 CLR 437, 466 (Dixon, Williams, Webb, Fullagar and Kitto JJ).
[15] RPS v The Queen (2000) 199 CLR 620, [41] (Gaudron ACJ, Gummow, Kirby and Hayne JJ).
So, the discharge of a trial judge’s responsibility will usually extend to instruction about the elements of the offence and, where relevant, about the principles governing accessorial or joint enterprise liability. Nonetheless, the failure to address an element of liability “that is not in issue” does not amount to “legal error”.[16]
[16] Huynh v The Queen (2013) 87 ALJR 434, [31].
What become the real issues in the case, and what is not in issue, are usually determined by the evidence and the way in which the case was conducted before the jury. The directions given by the trial judge must be tailored to reflect those matters, not the matters that are not in issue.[17] To do otherwise courts the risk that the jury will be inundated with information, directions and warnings which are disengaged from the real issues.
[17] JJP v The Queen (2021) 139 SASR 91, [158] (Doyle JA).
Whilst at times difficult, particularly in a complex case, it is therefore necessary that the trial judge exercise judgment about what is in issue and what is not in issue, guided by the conduct and speeches of counsel when addressing the directions that must be given to a jury.
There at least two reasons why a trial judge must confine directions to the real issues. Both are associated with the burden associated with hearing a criminal trial before a jury which, in a complex case such as this, amounts to a heavy burden for all involved. The first is that the burden on a trial judge to prepare and present a summing up should be kept within manageable parameters. Secondly, and more importantly, directions on issues other than the real issues are only likely to add unnecessarily to the length and detail of a summing up, with the associated risk that an overlong summing up ranging across apparently irrelevant matters may only confuse and deflect the jury from their proper task. For example, in Doggett v The Queen it was emphasised that directions to the jury must be kept to a minimum, and that they must be comprehensible and referable to the particular circumstances of the case, having regard to the way in which the trial was conducted:[18]
The essential principle of flexibility: In a number of recent decisions, this Court has resisted attempts to add needlessly to the duties of judges, presiding in criminal trials held before juries, by insisting on “more, and more complicated, directions than the particular case requires”[19]. The starting point for considering what the law requires in the present case is, therefore, an appreciation of this basic principle. The obligatory components of a judge’s directions to a jury should be kept to a minimum[20]. Any directions given must also be comprehensible[21]. They should include basic instructions about the functions of the judge and jury, the onus and burden of proof and the legal elements of the offence or offences charged. However, beyond such essential matters, wide latitude is reserved to the trial judge to provide such warnings and comments as the circumstances of the particular case, and the conduct of the trial, require.
[18] Doggett v The Queen (2001) 208 CLR 343, [115] (Kirby J).
[19] Melbourne v The Queen (1999) 198 CLR 1, 52 [142], (Hayne J); see also at 52-53 [143], citing Alford v Magee (1952) 85 CLR 437, 466; KRM v The Queen (2001) 206 CLR 221, 259 [114].
[20] See Flatman and Bagaric, “Juries Peers or Puppets – The Need to Curtail Jury Instruction”, Criminal Law Journal, vol 22 (1998) 207, 209-211.
[21] Zoneff v The Queen (2000) 200 CLR 234, 260 [64]-[65].
Whatever the theoretical issues that might be thrown up in an academic discussion about criminal liability in any particular case, a judge presiding over a criminal trial before a jury has a duty to identify the real issues and to direct the jury on those. Whilst important, that duty must be met in a pragmatic way. It is therefore necessary, particularly when addressing cases involving “multiple layers of complexity”, to ensure that jury directions remain “as clear, brief, simple and comprehensible as possible”.[22] In part that is achieved by confining directions to the real issues.
[22] Being the stated legislative intention for the Juries Directions Act 2013 (Vic), see Byrne and Maxwell AC, “Putting Jurors First: Legislative Simplification of Jury Directions” (2019) 43 Crim LJ 180.
A party is ordinarily bound by the conduct of counsel
Whilst a criminal trial is accusatorial, it is also adversarial.[23] Appellate review of the conduct of a trial must commence with an understanding of the way in which the trial was conducted, which extends to those issues which were put into contest by the parties, through their counsel:[24]
… Ordinarily, a party is held to the way in which his or her counsel has presented that party’s case.[25] This is not merely because the relationship between lawyer and client is grounded in the law governing agency and apparent authority.[26] There are other, highly pragmatic, reasons for this approach that cannot be ignored. The adversarial system of trial (including its variant of the accusatorial criminal trial) could not operate effectively without according a high measure of deference to the multitude of decisions necessarily made by a legal representative in the course of conducting a trial.[27] The appellate approach is thus a practical one, influenced by the realities of our trial process.
[23] Gately v The Queen (2007) 232 CLR 208, [88] (Hayne J).
[24] Nudd v The Queen (2006) 80 ALJR 614, [79] (Kirby J).
[25] R v Birks (1990) 19 NSWLR 677, 684 (Gleeson CJ). See also Re Ratten [1974] VR 201, 214; R v Miletic [1997] 1 VR 593, 598.
[26] Strauss v Francis (1866) 1 QB 379, 381 (Blackburn J) cited in TKWJ v The Queen (2002) 212 CLR 124, [74] (McHugh J).
[27] R v Birks (1990) 19 NSWLR 677, 682-685; TKWJ v The Queen (2002) 212 CLR 124, [8] (Gleeson CJ); Ali v The Queen (2005) 79 ALJR 662, [7] (Gleeson CJ).
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 them. Of necessity, those are the issues on which the parties, through their counsel, have chosen to litigate:[28]
It is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law. Upon the evidence and under the judge’s directions, the jury is to decide whether the accused is guilty or not. Consequently if the proceedings are not blemished by error on the part of the judge, whether it be on a matter of law or in the proper conduct of the proceedings, or by misconduct on the part of the jury, there has been a fair trial.
[28] Ratten v The Queen (1974) 131 CLR 510, 517 (Barwick CJ).
Great weight is attached to the conduct of counsel at the trial, whether or not it is before a jury. The parties are ordinarily bound by the conduct of their counsel, who is conferred a wide discretion as to the manner in which proceedings are conducted.[29] That discretion extends to how and on what bases the proceeding will be fought,[30] together with the issues or forensic landscape against which the facts are to be determined.[31] Counsel is free to determine “what issues to contest” and “what lines of argument to pursue”.[32]
[29] Nudd v The Queen (2006) 80 ALJR 614, [9] (Gleeson CJ); TKWJ v The Queen (2002) 212 CLR 124, [74] (McHugh J). The cases were recently reviewed in Police and Department for Correctional Services v Mahon (2022) 141 SASR 374, [43]-[60] (Livesey P, Lovell and Doyle JJA).
[30] Gately v The Queen (2007) 232 CLR 208, [77] (Hayne J, with whom Gleeson CJ, Heydon and Crennan JJ agreed), citing, amongst other authorities, Ratten v The Queen (1974) 131 CLR 510, 517 (Barwick CJ), RPS v The Queen (2000) 199 CLR 620, 630 [22] and TKWJ v The Queen (2002) 212 CLR 124, 158 [106].
[31] Ratten v The Queen (1974) 131 CLR 510, 517 (Barwick CJ); Roberts v The Queen (2022) 141 SASR 73, [1] (Livesey P), [63] (Doyle JA, with whom David JA agreed).
[32] Nudd v The Queen (2006) 80 ALJR 614, [9] (Gleeson CJ).
Nonetheless, the common law also recognises that the trial judge must direct the jury on all defences properly raised on the evidence, even if addressing those defences is contrary to the approach taken by counsel for the accused. The breadth of the obligation was explained by Barwick CJ in Pemble v The Queen:[33]
There is no doubt that the course taken by counsel for the appellant at the trial contributed substantially to the form of the summing up. If the trial had been of a civil cause, it might properly be said that the trial judge had put to the jury the issues which had arisen between the parties. But this was not a civil trial. The decision of the House of Lords in Mancini v Director of Public Prosecutions [1942] AC 1 following Lord Reading's judgment in R v Hopper (1915) 2 KB 431 and its influence in the administration of the criminal law must ever be borne in mind (see Kwaku Mensah v. The King [1946] AC 83, at p 92-94). Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.
[33] Pemble v The Queen (1971) 124 CLR 107, 117-118 (Barwick CJ), 130 (Menzies J).
At the end of this passage, Barwick CJ described the obligation of the trial judge to secure a fair trial according to law as extending to “any matter upon which the jury could … find or base a verdict in whole or in part”.
The Chief Justice then described the duty of the trial judge as extending to put, “any matters on which the jury, upon the evidence, could find for the accused”:[34]
Here, counsel for the defence did not merely not rely on the matters now sought to be raised; he abandoned them and expressly confined the defence to the matters he did raise. However, in my opinion, this course did not relieve the trial judge of the duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused …
[34] Pemble v The Queen (1971) 124 CLR 107, 117-118 (Barwick CJ).
These passages from Pemble v The Queen have been referred to on numerous occasions, generally in connection with the duty of a trial judge to leave for the consideration of the jury any defences which may be available on the evidence, even if disavowed by the defence.[35]
[35] See, for example, R v Perks (1986) 41 SASR 335, 343 (White J, with whom O’Loughlin J agreed. King CJ agreed in separate reasons), “if there is a basis on the evidence on which a jury, not being satisfied of all the elements of murder could find manslaughter, the judge is bound to direct the jury accordingly, His duty cannot be controlled by the tactics of the accused.” See also Bedi v The Queen (1993) 61 SASR 269, 273 (Duggan J, with whom Bollen and Mullighan JJ agreed).
The references made to a “defence” in this context are usually references to an issue on which the accused bears at least an evidential burden,[36] although they may also extend to statutory defences on which the accused also bears a legal or persuasive burden.[37] For example the approach required of the trial judge in connection with defences was explained by the majority in Braysich v The Queen in this way:[38]
If a trial judge has to consider whether, at the close of the evidence in a criminal trial, a particular defence should be left to the jury, the question which the trial judge will have to ask himself or herself will be:
1.In a case where the legal burden is on the prosecution and the evidential burden on the accused – is there evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence had been negatived?[39]
2.In a case in which both the legal burden and the evidential burden rest upon the accused – is there evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to conclude on the balance of probabilities that the defence had been established?
[36] The identification of a true ‘defence’ rather than an exception under s 56 of the Criminal Procedure Act 1921 (SA) was recently discussed in Dietman v Karpany [2023] SASCA 52, [39]-[49] (Livesey P, Doyle and Bleby JJA).
[37] Braysich v The Queen (2011) 243 CLR 434, [32] (French CJ, Crennan and Kiefel JJ).
[38] Braysich v The Queen (2011) 243 CLR 434, [36] (French CJ, Crennan and Kiefel JJ).
[39] A question on the formulation of which there is “little direct authority” – Heydon, Cross on Evidence, (LexisNexis Australia, 8th ed, 2010) at [7050]. See Stingel v The Queen (1990) 171 CLR 312 in relation to the defence of provocation.
In that case the High Court went on to explain that the “authority and responsibility of the judge to instruct the jury on questions of law” requires that a defence be addressed even if counsel has “expressly abandoned” it, unless there is “no evidence capable of supporting” the defence:[40]
In a trial by jury the issues of fact are decided by the jury “in the presence and under the superintendence of a judge empowered to instruct them on the law”.[41] It is an “elementary principle of the criminal law that unless express statutory provision to the contrary be made, the onus lies upon the Crown throughout to negative defences sufficiently raised.”[42] The authority and responsibility of the judge to instruct the jury on questions of law requires the judge “to put to the jury every lawfully available defence open to the accused on the evidence even if the accused’s counsel has not put that defence and even if counsel has expressly abandoned it.”[43] It may also require a direction to the jury that there is no evidence capable of supporting a particular defence to the charge and that they are not to consider that defence in their deliberations.[44] In such a case the accused is said to have failed to meet the “evidential burden” necessary to raise the defence. Such a direction may be made in respect of a defence which, if open, the prosecution, bearing the “legal burden” of proof, would have to negative beyond reasonable doubt.[45] It may also be made in respect of a statutory defence, such as that created by s 998(6), which by statute the accused is required to establish.[46] The standard of proof necessary to discharge the legal burden imposed upon the accused in such a case is proof on the balance of probabilities.[47]
[40] Braysich v The Queen (2011) 243 CLR 434, [32] (French CJ, Crennan and Kiefel JJ).
[41] Cesan v The Queen (2008) 236 CLR 358, 390 [103] per Gummow J, citing Capital Traction Co v Hof 174 US 1 at 13-14 (1899).
[42] King v The Queen (2003) 215 CLR 150, 168 [52] (Gummow, Callinan and Heydon JJ).
[43] Fingleton v The Queen (2005) 227 CLR 166, 198 [83] (McHugh J) (footnote omitted); and see Pemble v The Queen (1971) 124 CLR 107, 117-118 (Barwick CJ).
[44] Da Costa v The Queen (1968) 118 CLR 186, 213-215 (Owen J, Kitto, Menzies and Windeyer JJ agreeing); Lee Chun-Chuen v The Queen [1963] AC 220, 229-230 (Lord Devlin); Parker v The Queen (1964) 111 CLR 665, 681-682; [1964] AC 1369, 1392.
[45] As to the defences at common law and created by statute where the accused bears an evidential burden, despite the prosecution's legal burden, see generally Heydon, Cross on Evidence, (LexisNexis Australia, 8th ed, 2010) at [7050].
[46] Parker v The Queen (1964) 111 CLR 665, 681-682; [1964] AC 1369, 1392.
[47] See eg Sodeman v The King (1936) 55 CLR 192, 216 (Dixon J); Johnson v The Queen (1976) 136 CLR 619, 644 (Barwick CJ), 653-654 (Gibbs J), 660 (Mason J agreeing).
So, even if defences have been explicitly eschewed by counsel for the accused, the trial judge is nonetheless obliged to give directions about those defences which are raised on the evidence so that the jury can decide whether the accused has any defence to the charges faced. Whether defences are raised for this purpose is determined on the view of the evidence most favourable to the accused.[48]
[48] Queen v R (1981) 28 SASR 321, 322-323 (King CJ), citing with approval the speech of Viscount Simon in Holmes v Director of Public Prosecutions [1964] AC 588, 597, a case of provocation.
A recent example of the approach required is provided by Lindsay v The Queen, where it was common ground that there was evidence upon which a reasonable jury might consider it possible that the appellant was provoked by the deceased’s conduct and that he lost his self-control when he carried out the fatal assault, with the result that provocation had to be left to the jury in connection with its deliberation on a charge of murder.[49]
[49] Lindsay v The Queen (2015) 255 CLR 272, [13]-[16].
The approach which is applied to common law or statutory defences might be seen as complimentary to the duty of a trial judge to determine the real issues, being those put into issue at the trial, having regard to the evidence and the forensic decisions made by counsel in the conduct of the case, so as to ensure that the accused receives a fair trial according to law.
What is meant by a “defence” for this purpose may however extend beyond what might strictly be viewed as a defence, as a convenient way to refer to any line of argument that may defeat a prosecution.[50] There are other similarly broad statements which in their terms are not confined to defences. One example is provided by R v Stokes, a murder case concerning the failure of the trial judge to adequately leave the issue of intoxication to the jury, an issue which the Crown had to eliminate in proof of intent rather than a defence which the appellants had to establish.[51] The approach of the trial judge was based on an agreement between counsel. The reasons of Hunt J in R v Stokes explained why the failure of the trial judge to leave the issue to the jury entailed an error of law:[52]
The disavowal by counsel then appearing for the appellants that intoxication was being raised as an issue, though no doubt made for tactical reasons which were bona fide thought to be in the best interests of their clients, did not relieve the judge of the duty to give directions in relation to that issue in this case: Pemble v The Queen (1971) 124 CLR 107 at 117-118, 130. Counsel cannot concede a matter of law to the disadvantage of the accused: Pemble (at 133); R v Galambos (1980) 2 A Crim R 388 at 395, 396-397. The judge must comply with his duty to put to the jury any issue sufficiently raised by the evidence even if that issue gives an air of unreality to the case sought to be made by the accused in relation to some other issue: R v Lawson [1986] VR 515 at 548; R v Marshall (unreported, Court of Criminal Appeal, NSW, Gleeson CJ, Priestley and Sharpe JJ, 17 July 1990) at pp 1-2.
[50] Glanville Williams, Textbook of Criminal Law (Stevens & Sons, 2nd ed, 1978), 113.
[51] R v Stokes (1990) 51 A Crim R 25, 32.
[52] R v Stokes (1990) 51 A Crim R 25, 32. Referred to with approval in Bedi v The Queen (1993) 61 SASR 269, 273.
Apart from Pemble v The Queen, the cases referred to by Hunt J in this passage were the cases where what should have been left to the jury concerned intoxication,[53] or self-defence.[54] Ultimately Hunt J concluded that the error caused no substantial miscarriage of justice because a conviction was inevitable.
[53] R v Galambos (1980) 2 A Crim R 388, following cases such as Viro v The Queen (1978) 141 CLR 88 and Pemble v The Queen (1971) 124 CLR 107.
[54] R v Lawson and Forsythe [1986] VR 515; R v Marshall (unreported, Court of Criminal Appeal, NSW, Gleeson CJ, Priestley and Sharpe JJ, 17 July 1990) at pp 1-2 following cases such as Viro v The Queen (1978) 141 CLR 88 and Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645.
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 which is inconsistent with the way in which counsel has determined to run a case. For example, if the trial has been conducted on the basis that an element of an offence is not in issue, Huynh v The Queen shows that the trial judge makes no error by failing to treat the element as if it were in issue.[55]
[55] Huynh v The Queen (2013) 87 ALJR 434, [31], “This is not to say that the omission to specify an element of liability that is not in issue in the trial is legal error”.
Moreover, the trial judge is not required to address unreal, fanciful or speculative hypotheses.[56] In R v Brown it was suggested on an appeal against a murder conviction that a factual hypothesis should have been put to the jury even though it had never been raised by the accused (who had given four other versions of events) or on his behalf by counsel. The Full Court rejected the complaint. Pincus J (with whom Fox J agreed) explained:[57]
It appears to me that only in unusual circumstances should it be held to be erroneous for a trial judge to fail to place before the jury hypotheses derived from his own imagination, inconsistent with the Crown case and with the defence case.
[56] R v Payne [1970] Qd R 260, 264 (Lucas J, with whom Hanger and Hoare JJ agreed); R v Holden [1974] 2 NSWLR 548, 551 (Street CJ, McClemens CJ at CL and Slattery J); R v Burns [1975] VR 241, 255 (Pape, Menhennitt and Nelson JJ); R v Brown (1987) 78 ALR 368, 373 (Pincus J), 380-381 (Miles J).
[57] R v Brown (1987) 78 ALR 368, 373 (Pincus J, with whom Fox J agreed).
In the same case Miles J (with whom Fox J also agreed) explained that the issue raised on appeal was not a defence but a way of looking at the evidence, “simply an alternative version of the facts”:[58]
The trial judge in summing up fairly was not bound to pick and choose from the material before the jury in order to explain every possible inference of fact which might have arisen from the evidence and the accused's statement. In particular, he was not bound to isolate the particular inferences which the respondent now seeks to rely upon. The duty of the trial judge is to “secure for the accused a fair trial according to law” (Pemble at 117 per Barwick CJ) and this involves directions as to the relevant law as well as an explanation of the defences that may be seen to arise from the evidence. However, it is another matter altogether to put to the jury alternative inferences of fact upon which neither the defence nor the prosecution have sought to rely and which neither raise a matter which is in positive defence nor materially weaken the prosecution case. In the atmosphere of the trial, the presiding judge is usually in a better position than an appellate court to decide whether fairness demands putting such alternatives to the jury. In R v Hopper [1915] 2 KB 431 at 435 Lord Reading CJ said: “Whatever the line of defence adopted by counsel at the trial of a prisoner, we are of opinion that it is for the judge to put such questions as appear to him properly to arise from the evidence even although counsel may not have raised some question himself.”
Although it was understandable and proper that counsel for the respondent at the trial might have wished to rely upon the hypothesis now raised without mentioning it to the jury, the fact that counsel sought no relevant directions from the trial judge in that regard is eloquent testimony that that hypothesis played no real part in the trial and that the trial judge's silence on the point in no way affects the essential fairness of the summing up.
[58] R v Brown (1987) 78 ALR 368, 381 (Miles J).
More recently, and consistently, in R v Baden-Clay the High Court addressed Pemble v The Queen in the following way, emphasising that the requirement that the prosecution prove guilt is consistent with the further proposition that the trial judge secure a fair trial according to law, each having regard to the way in which defence counsel conducted the case:[59]
It may readily be accepted that “it is not incumbent on the defence either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference.”[60] That proposition merely reflects that it remains for the prosecution to prove the accused's guilt of an offence beyond reasonable doubt.[61] And it does not detract from, and is consistent with, the further proposition that a “trial judge must be astute to secure for the accused a fair trial according to law.”[62] A trial judge must adequately direct the jury “both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part”;[63] the trial judge is under a "duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused”[64] (emphasis added). No complaint is made in this Court that the directions given to the jury were inadequate. The directions “put fairly before the jury the case which the accused” made.[65] The trial judge left manslaughter to the jury and put to them the four hypotheses identified by defence counsel.
[59] R v Baden Clay (2016) 258 CLR 308, [62] (French CJ, Kiefel, Bell, Keane and Gordon JJ).
[60] Barca v The Queen (1975) 133 CLR 82, 105.
[61] Knight v The Queen (1992) 175 CLR 495, 502.
[62] Pemble v The Queen (1971) 124 CLR 107, 117.
[63] Pemble v The Queen (1971) 124 CLR 107, 117‑118.
[64] Pemble v The Queen (1971) 124 CLR 107, 118. See also James v The Queen (2014) 253 CLR 475, 481 [10].
[65] RPS v The Queen (2000) 199 CLR 620, 637 [41].
The trial judge was not required to address a hypothesis “which was not put for tactical reasons” by counsel at the trial, albeit in a case where the accused gave evidence:[66]
But it is quite another matter, as occurred on appeal to the Court of Appeal and again to this Court, to contend for a hypothesis which was not put to the jury for tactical reasons, which is directly contrary to evidence of the respondent at trial, which is directly contrary to the way in which the respondent's counsel conducted the defence and which, in response to direct questions from the trial judge, was expressly rejected by the respondent's counsel. The issues and available lines of argument to be pursued were narrowed by the way the case was conducted at trial. That is commonplace. But it cannot be ignored. The hypothesis identified by the Court of Appeal was not open. Once that hypothesis is rejected, no other hypothesis consistent with guilt of manslaughter, but innocence of murder, has ever been identified at trial, before the Court of Appeal or in this Court.
[66] R v Baden-Clay (2016) 258 CLR 308, [63] (French CJ, Kiefel, Bell, Keane and Gordon JJ).
In R v Baden-Clay the High Court emphasised that the way the case was conducted at the trial “narrowed” the issues and available lines of argument.
Whilst each case will inevitably depend on its own particular facts and circumstances, it is not usually necessary for the trial judge to treat the elements of a crime, or the evidence relevant to those elements, as if they were defences, or as if they were in contest, where those elements have not been put into issue, or where possible ways of viewing the evidence relevant to the elements have not featured in the conduct of the trial. Counsel may have good reasons, if not also explicit instructions, for conducting a case in a particular way, and this may not necessarily be apparent to the trial judge or the appeal court.
In many cases an impugned direction or summing-up can only be understood and fairly assessed by reference to the conduct of counsel, and the way in which counsel elected to address what were regarded at trial as the real issues in the case. That kind of approach may well assist the appeal court to conclude that the way in which the case was conducted, and the associated absence of any suggested direction, has caused the appellant no prejudice and there has been no failure to ensure that the trial was fair according to law.[67]
[67] R v Baden-Clay (2016) 258 CLR 308, [62] citing Pemble v The Queen (1971) 124 CLR 107, 117.
When considering whether a party is bound by the conduct of counsel at the trial, particularly where a different course is suggested by new counsel on appeal, it will usually be relevant to consider whether there is any rational forensic justification for counsel’s approach at the trial, including for any failure to object or seek a direction concerning a point which is later raised on appeal.[68]
[68] Orreal v The Queen (2021) 274 CLR 630, [16] (Kiefel CJ and Keane J); Gately v The Queen (2007) 232 CLR 208, [46] (Kirby J).
In many cases the failure of defence counsel at the trial to take a particular approach, or to object or seek a direction regarding certain evidence, may represent an indication that the issue did not feature in the trial and was of no real significance.[69] That may influence the determination made by the appeal court about what were the real issues in the case, particularly where the appeal court is invited to address what appears to be an entirely new issue raised for the first time on appeal.
[69] See, for example, Farrell v R (1998) 194 CLR 286, [53] (Hayne J); R v Aziz [1982] 2 NSWLR 322, 330–331 (Samuels JA); R v Calides (1983) 34 SASR 355, 359 (Wells J, with whom Matheson and Legoe JJ agreed); Chamberlain v R (1983) 72 FLR 1, 11–12, 17 (Bowen CJ and Forster J); R v Gallagher [1998] 2 VR 671, 684 (Brooking JA), 688 (Callaway JA) and 702 (Ashley AJA); R v MMJ (2006) 166 A Crim R 501, [33]-[34] (Warren CJ), [94]-[97] (Ashley JA, with whom Buchanan JA agreed); Wyper v R [2017] ACTCA 59, [65]–[67] (the Court); R v Singh [2019] SASCFC 51, [77] (Doyle J, with whom Peek and Parker JJ agreed).
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.
By contrast, the absence of any rational forensic justification for the conduct of counsel at the trial may well assist the appeal court to identify whether there has been a miscarriage of justice within the meaning of the common form criminal appeal provision.[70] Indeed, in that kind of case the failure by counsel to put a matter into issue, or to address an element or evidence relevant to an element of the charge, may assist the appeal court to conclude that there has been a miscarriage of justice.
[70] Hofer v The Queen (2021) 274 CLR 351, [113]-[116] (Gageler J). See also R v Birks (1990) 19 NSWLR 677, 682-685; TKWJ v The Queen (2002) 212 CLR 124, [8] (Gleeson CJ); Nudd v The Queen (2006) 80 ALJR 614, [9] (Gleeson CJ); Gately v The Queen (2007) 232 CLR 208, [47] (Kirby J); Khoury v The Queen (2011) 209 A Crim R 509, [104]-[105] (Simpson J, with whom Davies J and Grove AJ agreed).
The conduct of this trial: opening and defence closing, summing up
Before coming to appeal ground 1, it necessary to outline the way this trial was conducted on the topic of the appellant’s liability as an accessory.
The prosecution opening
In the course of the prosecution opening, the prosecutor referred to the “hunting spree” message sent by Skinner to the appellant at 6.09 pm on 14 December 2018, and submitted to the jury:[71]
On the prosecution case, far from talking Skinner down, Hinrichsen proceeds to send him messages including “I am hurting so much” and “maybe I should end my life”.
[71] Transcript of Proceedings, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 8 June 2021 – 26 July 2021), 379.
The prosecutor then referred to the trip made by the appellant and Skinner to the Christies Beach Police Station. Later in her opening, the prosecutor explained the way in which the case was made against the appellant:[72]
The prosecution also relies upon the concept of a joint criminal enterprise in order to implicate Tanya Hinrichsen in the murder of her husband… The prosecution contends that there is a large body of evidence from which it will be open to you to find that Tanya Hinrichsen and Gavin Skinner had reached an agreement that Steven Hinrichsen would be killed or caused grievous bodily harm. On the prosecution case Tanya Hinrichsen played her part in bringing about that outcome by removing herself from … Nathan Court and giving Skinner access to those premises, and thereby access to her already physically vulnerable husband.
In this trial the prosecution puts its case against Tanya Hinrichsen on an alternate footing. The prosecution contends that Tanya Hinrichsen can be found guilty of murder on the basis of what is termed counselling or procuring. This alternate basis of liability…requires the prosecution to prove beyond reasonable doubt that by her words, her actions or both she intentionally encouraged Gavin Skinner to kill her husband or inflict grievous bodily harm upon the man.
[72] Transcript of Proceedings, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 8 June 2021 – 26 July 2021), 397-398.
On its alternate case, the prosecution opened to the jury that it was proposing to prove beyond reasonable doubt that the appellant, by her words or conduct or both, intentionally encouraged Skinner to kill the deceased or inflict grievous bodily harm upon him.
The defence ‘opening’ and closing
Immediately following the prosecution opening, senior counsel for the appellant identified for the jury what he described as the “central or critical issues in this case” regarding the appellant. Counsel said the issues were whether the appellant was part of an agreement or plan to commit murder, as well as whether she was aiding and abetting or counselling or procuring the commission of the murder.[73]
[73] Transcript of Proceedings, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 8 June 2021 – 26 July 2021), 403-404.
Counsel for the appellant then explained that the “critical issue” was whether the appellant participated by being part of a plan or an agreement “with whoever might have killed Mr Hinrichsen”. Counsel suggested to the jury that they consider what the appellant said, whether orally or by way of text, and what the appellant meant in relation to whatever she said. Senior counsel urged the jury to consider what it was the appellant did that “makes her guilty of murder”, emphasising that the issue is “what the evidence demonstrates that the appellant did not do”.
In the course of his closing address for the appellant, counsel returned to these matters, which he described as the “critical issue, or issues” and submitted that these were:[74]
… at the very start of this trial … I endeavoured to identify what I anticipated would be the critical issue, or issues … and that issue I anticipated was namely whether the evidence established that Tanya Hinrichsen was party to any agreement that her husband be murdered on 15 December 2018 and participated in some way in any agreement or even knew of any agreement between the people who killed her husband, that any agreement had existed let alone encouraged that it should happen.
That still is the issue… what she may have said, and you have got a lot of evidence of that, but perhaps more so than what she may have said, what was meant or not meant by what she may have said. Then, of course, this I think will be a critical issue for your consideration more so perhaps than what she said or what she meant, what did she actually do or not do.
[74] Transcript of Proceedings, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 8 June 2021 – 26 July 2021), 1354.
The closest that counsel came to directly addressing the “hunting spree” exchange was to later contend that the appellant’s response was merely “a throw away line” which bore no relationship to the “actual murderous plan” which came into effect “much, much later”.[75] No attempt was made to address the messaging between the appellant and Skinner at the time of the two November assaults.
[75] Transcript of Proceedings, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 8 June 2021 – 26 July 2021), 1372.
Clearly, counsel determined to meet the Crown case that the events and emotions slowly built over November and December by concentrating only on the final 24 hours, dealing with the incriminating “hunting spree” messaging in a light manner. In what followed, counsel took the jury through the events of 14 and 15 December 2018 after that message at some length, emphasising at each stage the absence of any sign that the appellant was procuring murder. For example, counsel put to the jury:[76]
I suppose knowing human nature as you do and knowing the motivations and intentions of Tanya Hinrichsen on 14 December and the early hours of 15 December you might fairly take the view that what she was wanting to be achieved had been achieved. From late afternoon she had formed the view that she wanted to get out of here – that is move out from her husband. By 8 o’clock at night she had decided that that process may be assisted by going and getting some advice from police…
Matter for you members of the jury, but you might think that the answer is glaringly obvious: when she got back from the police and getting the advice she got the offer of moving into the spare room at Rachel Thrupp’s house, so now her desired solution was within relatively easy reach…
[76] Transcript of Proceedings, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 8 June 2021 – 26 July 2021), 1378.
It is difficult to regard this part of the address as amounting to a submission that, if the appellant had already agreed to or procured murder, she was countermanding that agreement or procurement.
The better view of these submissions is that counsel was building the case for why the appellant no longer had any motive to agree to or procure the murder of her husband. The submissions were directed to speaking with police about leaving her husband and finding a place to stay. They were not directed to what the appellant had already agreed or procured. These submissions were put in a context where counsel had already urged the jury to find that there was nothing in the appellant’s conduct which, to this point, could be described as agreeing to or procuring murder.
Indeed, counsel mocked the prosecution case against the appellant thereafter, ridiculing the notion that “despite being asleep, she counselled, or procured, or encouraged others to commit … murder”.[77] Counsel emphasised that, by the time the appellant went to sleep, there was “nothing to see here”. The argument was that, whatever occurred thereafter, it did not involve the appellant in any way.[78]
[77] Transcript of Proceedings, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 8 June 2021 – 26 July 2021), 1371.
[78] Transcript of Proceedings, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 8 June 2021 – 26 July 2021), 1379.
Later in his address, counsel for the appellant questioned when the plan for murder was formulated, arguing that it was likely formulated only shortly before, or on the way to, the deceased’s home.[79] On that basis, counsel argued, the appellant could hardly be a party to murder because “she was asleep”.[80]
[79] Transcript of Proceedings, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 8 June 2021 – 26 July 2021), 1381.
[80] Transcript of Proceedings, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 8 June 2021 – 26 July 2021), 1382.
No witness gave evidence that they saw Hinrichsen’s keys after she returned to Astrid Street. In her police interview, Hinrichsen said that when she returned to Astrid Street, the keys were in her handbag which she left on the floor in the lounge room where she was sleeping. She used her house key to enter the house when she went there later in the morning of 15 December 2018 and found the deceased dead.
On the defence case, this left open the possibility that Skinner or Thrupp helped themselves to the keys. Indeed, Hinrichsen also said in her police interview that she noticed the position of the house keys on the key ring was different to usual.[330] Even rejecting this implicit suggestion that someone had taken the house keys from her bag and then returned them, another possibility was that Skinner might simply have retained the keys after driving the four of them back to Astrid Street earlier in the morning.
[330] Noting that it can be inferred from the jury’s verdict that they did not accept at least some significant aspects of what Hinrichsen said during this interview.
The evidence directly bearing upon access to the house keys fell to be assessed, of course, in the broader context of the evidence and case as to Hinrichsen’s liability for murder. This included the evidence, summarised earlier in these reasons, probative of her involvement in an agreement or arrangement with Skinner to kill or cause grievous bodily harm to the deceased, and of her knowledge of the location and physical vulnerability of the deceased during the early hours of 15 December 2018.
Having reviewed the evidence, we are satisfied that it was sufficient to sustain a finding beyond reasonable doubt that Hinrichsen gave Skinner the key or keys to Nathan Court so as to give him access to the deceased, and thereby participated in a joint enterprise with Skinner to murder the deceased. To the extent it is appropriate to adopt the terminology used when reviewing the unreasonableness or otherwise of a verdict, it cannot be said that the evidence was so lacking as to require that a reasonable juror entertain doubt as to Hinrichsen’s participation.
Ground 3 has not been made out.
Ground 4: consciousness of guilt
In Ground 4, the appellant complains that the judge failed to adequately direct the jury in relation to the prosecution submissions to the jury about what the appellant told police about her house keys:
4. A miscarriage of justice was occasioned by the learned trial Judge’s failure to adequately direct the jury in relation to prosecution counsel’s submissions to the jury about what the appellant told police about her house keys.
Particulars
4.1The appellant told police she noticed on the morning after the murder occurred that her keys were placed differently on her key ring to how they usually were.
4.2At the end of her closing address on 19 July 2021, prosecution counsel invited the jury to accept that this claim by the appellant was, “... a late desperate conniving attempt to distance herself from providing those house keys to Skinner and, therefore, from the truth of her involvement in this crime.” This submission clearly invited the jury to use the appellant’s lie as evidence of her consciousness of her own guilt and as an implied admission of guilt.
4.3The issue with respect to the house keys was an indispensable intermediate fact in proof of the appellant's guilt.
4.4The learned trial Judge summed up to the jury seven days later, on 26 July 2021. Other than a very brief general direction on lies (SU154) nothing was said in the summing up about the prosecutor’s closing submission to the jury.
As encapsulated in the particulars to this ground of appeal, the appellant complains that the trial judge occasioned a miscarriage by failing to give any directions that specifically addressed the risk that the jury might have understood the prosecutor’s impugned submission as inviting them to reason that what she said in her police interview about her house keys reflected a consciousness of guilt, or an implied admission of guilt. In order to address this submission, it is necessary to summarise what Hinrichsen said in her police interview about her house keys, the submissions made by the prosecutor in relation to the interview, and the judge’s directions in relation to the use to be made of any lies by Hinrichsen.
Hinrichsen was interviewed by police for a number of hours over the afternoon of 15 December 2018. During the course of that interview, she told police that when she, Skinner, Thrupp and Rachel Thrupp went to Nathan Court at about 11.30pm the previous evening, that she used her key to unlock the front door, and that when they left she locked the door. She said that when she returned to Nathan Court just after 9.00am that morning, the front door was locked. She had the front door keys on her key ring (along with other keys), and unlocked the door. She said that she thought her husband’s killer must have broken in, but could not work out how because she had her keys and everything was locked up. All keys were accounted for.
Later in the interview, Hinrichsen explained that upon her return from Nathan Court to Astrid Street in the very early hours of 15 December 2018, she had fallen asleep on the couch, with her handbag on the floor next to her. She said that her keys were in her handbag when she fell asleep, and they were in her handbag when she awoke the next morning. However, she added that, in the morning, before she left to check on her husband, she noticed that her keys were placed differently on her key ring.[331] She said that she does not take her keys off her key ring.
[331] Transcript of Exhibit P65, pp 124-125.
Hinrichsen made clear that she was implying that someone must have taken her keys whilst she was asleep at Astrid Street, and used them to enter Nathan Court. She reasoned that this must have occurred because there was no sign of forced entry, and the screen door was left wide open, whereas the deceased, if alone, would have locked both the front door and front screen door.[332] This was in a context where Hinrichsen acknowledged in the course of the interview that she had, on an earlier occasion, given Skinner and Thrupp her keys so that they could access Nathan Court to confront the deceased on 16 November 2018.[333]
[332] Transcript of Exhibit P65, p 134.
[333] Transcript of Exhibit P65, p 132.
The prosecutor delivered her closing address on Monday, 16 July 2021. It took the day. The last topic she addressed was Hinrichsen’s record of interview. She did so at some length. She commenced her submissions on this topic with the following:[334]
I move now, finally, to Ms Hinrichsen’s record of interview. You saw it very recently and I won’t go through it in detail. It is an interview in which, in the prosecution’s submission, it is quite apparent that Ms Hinrichsen’s position and her preparedness to share information shifts and changes and changes quite significantly along the way.
Where does she land by the end of it? I suggest by the end of it she lands on four significant assertions from her perspective. (1) She was not home last night, she came home to find her husband’s body and has no knowledge about what happened to him. (2) She did not know she had her husband’s phone in her bag. (3) That morning she discovered her keys were placed differently on her key ring. (4) The hunting spree permission text meant permission for [Skinner] to speak to her husband. I am not saying that is all of it but that would seem to be the four key messages by the end of the interview. Taken together what she is conveying by the end of the interview is she had no knowledge, she had no involvement.
What I want to ask you to think about are the features of the interview which might cause you to doubt the truthfulness of those claims and her credibility in making those claims which are essentially denials that she had any involvement in the death of her husband. …
[334] T1329-1330.
As she foreshadowed, the prosecutor then went through the various features of the record of interview that she said supported her submission as to the changes in Hinrichsen’s version of events, and the lack of credibility in that version of events. She identified several statements by Hinrichsen which she submitted were lies, or lacked credibility. Indeed, she suggested that Hinrichsen’s “whole account of denial lacks credibility”. In concluding her submissions on this topic, and indeed her closing address, the prosecutor turned to Hinrichsen’s statement that on the morning of 15 December 2018 she had noticed that the house keys were placed differently on her key ring:[335]
… how can you accept that she also found at that time that the house keys were placed differently?
Remember, in that interview one of the first things she said to detectives is that she can’t work out what happened because the house was locked. That might tell you that she well understood the significance of the way in which entry had been made into the house.
Members of the jury, in the prosecution’s submission you cannot accept that claim about the keys as anything other than a late desperate conniving attempt to distance herself from providing those house keys to Skinner and, therefore, the truth of her involvement in this crime.
So we invite you to find Ms Hinrichsen guilty of murder. We invite you to find Mr Skinner guilty of murder. We invite you to find Mr Thrupp guilty of murder.
(emphasis added)
[335] T1333.
The appellant relies upon the italicised words as inviting the jury to engage in reasoning that reflected a consciousness of guilt on the part of Hinrichsen. The appellant complains that this submission was made in a context where the prosecutor had not previously suggested that any such invitation would be made.
The appellant also emphasises the timing of this submission. As mentioned, it came right at the end of the prosecution closing address. Court was then adjourned for the day. Unfortunately, the Court was not able to sit on the following two days for reasons associated with the Covid pandemic.
Closing addresses for Skinner and Hinrichsen were given on Thursday, 22 July 2021.
In his closing address, trial counsel for Hinrichsen dealt fairly briefly with her police interview.[336] He emphasised the length of the interview and the emotionally difficult circumstances in which it was conducted (with Hinrichsen having found her husband’s body only hours earlier). He suggested that what she said was reliable, given that much of what she said had turned out to be true. He did not deal directly with what Hinrichsen had said about the house keys, other than to observe in passing that she “told them about the keys having been taken off the key ring or whatever.”
[336] T1358-1360.
The closing address for Thrupp was given on Friday, 23 July 2022.
Throughout the period from the prosecutor’s submission the subject of Ground 4 through to the completion of closing addresses, nothing was said by counsel or the judge about the prosecutor’s submission. There was no complaint, and there was no request for any particular directions to address the impugned submission.
The trial judge commenced her summing up the following Monday, 26 July 2021. Her Honour finished her summing up by about 10am on Wednesday, 28 July 2021 and invited the jury to commence their deliberations. The jury returned their verdicts at about 3pm that afternoon.
In the course of her summing up, the trial judge addressed in general terms the prosecution submissions as to lies told by Skinner and Hinrichsen in their police interviews. In commencing her directions in relation to these interviews, her Honour said:[337]
You will recall that on the prosecution case each accused has lied or told untruths in their record of interview and statements. Whether the accused has told any lies is a factual question for you. If you find that the accused has lied then you can use that when you are deciding whether his or her police statement is credible or believable and any such lie is relevant to the veracity of that account. Much would depend on how significant the lie is, as you find it to be, and any explanation for it. But you cannot use a conclusion that an accused told lies, if you so find, as evidence of his or her guilt. Finding that the accused lied may affect your assessment of the truth of what the accused said but it does not of itself add to the prosecution’s evidence.
[337] SU154.
The directions given by the judge on this issue reflected what is sometimes described as a Zoneff direction. The essence of the appellant’s complaint in Ground 4 is that the prosecutor having invited the jury, in respect of a particular aspect of the evidence, to engage in reasoning reflecting a consciousness of guilt on the part of Hinrichsen, there was a risk that the jury might use the evidence in this way, without the protection afforded by an Edwards direction. The appellant complains that because the prosecutor’s submission invited this form of reasoning, it was necessary that the judge squarely address the submission that had been made. The judge might have done so by expressly telling the jury not to use the relevant aspect of Hinrichsen’s police interview as evidence of guilt, rather than relying upon a generally expressed Zoneff direction. Alternatively, the judge should have given an Edwards direction specifically directed to this aspect of Hinrichsen’s police interview.
Backtracking for a moment, reference to an Edwards direction is, of course, reference to the style of direction contemplated by Deane, Dawson and Gaudron JJ in Edwards v The Queen.[338] As their Honours explained in that case,[339] the telling of a lie ordinarily affects the credit of a person who tells it. But in some circumstances, a lie told by an accused person may amount to conduct which is inconsistent with innocence and an implied admission of guilt. A lie may constitute an admission only if it is concerned with some circumstance or event connected with the offence (that is, it relates to a material issue), and if told by the accused in circumstances in which the explanation for the lie is that he or she knew that the truth would implicate him or her in the offence. As to the direction that should be given where the prosecution seek to rely upon a lie as demonstrating a consciousness of guilt, Deane, Dawson and Gaudron JJ said:[340]
Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes and admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence and some aspect of it and that it was told because the accused knew the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg v Lucas (Ruth), because of ‘a realization of guilt and a fear of the truth’.
Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect.
[338] Edwards v The Queen (1993) 178 CLR 193.
[339] Edwards v The Queen (1993) 178 CLR 193 at 208-209 (Deane, Dawson and Gaudron JJ).
[340] Edwards v The Queen (1993) 178 CLR 193 at 210-211 (Deane, Dawson and Gaudron JJ) (omitting citations).
In Zoneff v The Queen,[341] Gleeson CJ, Gaudron, Gummow and Callinan JJ recognised that the Edwards direction had caused difficulties and controversy in criminal trials.[342] Their Honours indicated an approach which underscored the importance of ascertaining whether the prosecution sought to rely upon a particular lie or lies as reflecting a consciousness of guilt, and suggested that an Edwards direction would not generally be necessary in those cases where the prosecution did not seek to use any lie as having a relevance extending beyond credit:[343]
There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt. As a general rule, however, an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards, ‘the accused knew that the truth … would implicate him in [the commission of] the offence’ and if, in fact, the lie in question is capable of bearing that character. …
Moreover, if there is a risk of confusion or doubt as to the way in which the prosecution puts its case, the trial judge should inquire of the prosecution whether it contends that lies may constitute evidence of consciousness of guilt and, if so, he or she should require identification of the lie or lies in issue and the basis on which they are said to be capable of implicating the accused in the commission of the offence charged.
[341] Zoneff v The Queen (2000) 200 CLR 234.
[342] Zoneff v The Queen (2000) 200 CLR 234 at [15] (Gleeson CJ, Gaudron, Gummow and Callinan JJ).
[343] Zoneff v The Queen (2000) 200 CLR 234 at [16]-[17] (Gleeson CJ, Gaudron, Gummow and Callinan JJ).
Their Honours went on to explain that in a case where the prosecution did not seek to use any lie as reflecting a consciousness of guilt, then a more limited direction would ordinarily be sufficient and appropriate.[344] The more limited direction (a Zoneff direction) contemplated by their Honours involved instructing the jury not to use any lie that the accused may have told as evidence of guilt (without any reference to the possibility that a lie may indicate a consciousness of guilt).
[344] Zoneff v The Queen (2000) 200 CLR 234 at [23]-[25] (Gleeson CJ, Gaudron, Gummow and Callinan JJ).
While the principles governing the directions to be given in relation to lies are relatively clear, they are often difficult to apply. The appellant relied upon a useful illustration of their application by the Queensland Court of Appeal in R v Sheppard.[345] In that case, the defendant was charged with rape. During the course of a police interview, the defendant said that he had not been in the complainant’s room at the relevant time. He later accepted (and there was other evidence) that in fact he had been in her room, but maintained that he had not touched her improperly. In closing addresses, the prosecutor referred to the initial lie told by the defendant in his police interview, and challenged the credit of various other aspects of his versions of events. In concluding submissions on this topic, the prosecutor said “Now, in my submission, his account to police is just simply an effort to distance himself from this allegation that he did commit the offence as [the complainant] has outlined.”
[345] R v Sheppard [2010] QCA 342.
In discussions with counsel, the trial judge in R v Sheppard indicated her view that the prosecution could have relied upon the lie as demonstrating a consciousness of guilt and warranting an Edwards direction. However, her Honour decided “out of an abundance of caution” to limit her directions as to lies to their use in relation to credit, and hence gave a Zoneff direction.[346]
[346] R v Sheppard [2010] QCA 342 at [19] (McMurdo P, Holmes JA and Daubney J agreeing).
In allowing the appeal, McMurdo P emphasised that because the prosecution address included a submission which invited consciousness of guilt reasoning, an Edwards direction rather than a Zoneff direction was required:[347]
Unfortunately, whilst the prosecutor in the main encouraged the jury to treat the appellant’s lie to police as relevant to credit, the prosecutor also submitted to the jury that ‘his account to police is just simply an effort to distance himself from this allegation that he did commit the offence as [the complainant] has outlined. That appears to me to be a clear suggestion to the jury that the appellant lied to police out of a consciousness of guilt. The prosecutor’s submission meant that the jury should have been given the authoritative Edwards direction which instructs juries not to use the lie as evidence against an accused person until satisfied of the matters specified in Edwards. The prosecutor’s submission meant that a Zoneff direction was neither adequate nor appropriate.
[347] R v Sheppard [2010] QCA 342 at [20] (McMurdo P, Holmes JA and Daubney J agreeing) (citations omitted).
Returning to the present case, the appellant relies upon the obvious similarity between the terms of the prosecutor’s submission in R v Sheppard in relation to the defendant’s statement that he had not been in the complainant’s room (which characterised the defendant’s statement as a lie told in an “effort to distance himself” from the allegation he committed the alleged offence), and the prosecutor’s submission in the present case in relation to Hinrichsen’s statement about the different positioning of her house keys (which characterised Hinrichsen’s statement as “a late desperate conniving attempt to distance herself from providing those house keys to Skinner and, therefore, the truth of her involvement in this crime”.)
A submission that a defendant is attempting to distance himself or herself may not always be indicative of a consciousness of guilt. But here, the terms of the submission expressly linked Hinrichsen’s lie to a suggested motive of distancing herself from “the truth of her involvement in this crime”. Further, as the appellant emphasised, the submission in the present case was expressed in rather emotive terms, and followed immediately upon a submission that Hinrichsen well understood the significance of the way in which entry had been made into the house.
The respondent acknowledged the problematic terms of the prosecutor’s submission in relation to the house keys, effectively acknowledging some risk that it might have encouraged jurors to engage in reasoning that reflected a consciousness of guilt. The respondent contended, however, that there were two reasons why an Edwards direction was not required and why a general Zoneff direction was sufficient.
The first reason was that it was necessary to consider the prosecutor’s submission in context. The respondent pointed out that the impugned submission was made at the end of a run of submissions made in relation to Hinrichsen’s police interview. These submissions were introduced as intended to highlight features of the interview that might cause the jury to doubt the truthfulness and credibility of her claims, and then proceeded to do precisely that. The respondent contended that, considered in this context, the impugned submission would have been understood by the jury as no more than another strand of the prosecutor’s attack upon the credit of the statements made by Hinrichsen during the course of her police interview.
We accept that this context is relevant. We also accept that it is appropriate to have regard, in this context, to the fact that no one at trial raised any difficulty with the prosecutor’s submission. In particular, defence counsel did not take issue with the submission, or otherwise suggest that any particular directions were necessary to address a risk of the jury engaging in consciousness of guilt reasoning. Whilst not decisive, this provides some contemporaneous support for the submission being understood in the sense the respondent contends.
However, we are not ultimately persuaded by the respondent’s submission. In our view, the impugned submission was in quite different terms to what preceded it, and by reason of its terms and tone, presented a significant risk of encouraging jurors to engage in consciousness of guilt reasoning.
The second reason the respondent proffered for challenging the necessity for, or indeed appropriateness of, an Edwards direction was that, properly analysed, Hinrichsen’s statement that she noticed that the house keys were positioned differently on her key ring on the morning of 15 December 2018 was not apt to be treated as a lie reflecting a consciousness of guilt. In developing this submission, the respondent explained that the contended falsity of what Hinrichsen said about her keys lay not in what she said about the positioning of the keys (which suggested that someone other than her had access to her house keys), but in her denial of any knowledge about the use of those keys at the time it occurred. The former was not necessarily a lie, even on the prosecution case. Even accepting that Hinrichsen gave Skinner permission to use the keys, he may have taken them off the key ring or, more relevantly, may have returned them to the key ring after they had been used. However, on the prosecution case, the latter was a lie.
We accept the respondent’s submission that there may have been difficulties with reliance upon the latter as a lie reflecting a consciousness of guilt. The first potential difficulty is that, unlike the lie in R v Sheppard, any lie inherent in Hinrichsen’s denial of knowledge of the use of her keys was essentially a denial of Hinrichsen’s alleged offending,[348] rather than a lie about something related to the matter but independently proven by other evidence in the case to be false.
[348] Or an element of that offending.
The respondent suggested that a second potential difficulty is that any lie was not one told by Hinrichsen because she could not innocently explain her possession or use of the keys. We are not sure that this stands in the way of the use of Hinrichsen’s statement about the keys as involving a consciousness of guilt. It seems to us that if it were accepted that her statement was made in circumstances where Hinrichsen appreciated the significance of knowledge of the use that had been made of her house keys, and made in an attempt to deflect attention away from her having any such knowledge, this might be said to involve a consciousness of guilt.
A third potential difficulty is that, in circumstances where any lie was told during a police interview and in a context where there was plainly reason for Hinrichsen to think that the police suspected her involvement in her husband’s death, there were obvious reasons (other than a consciousness of guilt) why she might have lied – such as out of panic, or out of fear of being wrongly accused. While we accept the force of these observations, they seem to us to underscore the importance of the protection against misguided consciousness of guilt reasoning through an Edwards direction, rather than to prevent reliance upon the evidence in that way.
All of that said, we do not think it is necessary for us to reach a conclusion as to whether, properly analysed, Hinrichsen’s statement about the positioning of her house keys could properly have been relied upon as a statement reflecting a consciousness of guilt on her part. The critical point is that we are satisfied that the prosecutor’s submission used language that invoked consciousness of guilt reasoning, and gave rise to a real risk that the jury may have reasoned in this way. If it be the case that such reasoning was inapposite, then that merely exacerbated the potential prejudice to Hinrichsen, rather than removing the need for protection against that prejudice through appropriate directions.
The risk of the jury utilising consciousness of guilt reasoning having arisen, it needed to be addressed. If the prosecutor did in fact intend to rely upon Hinrichsen’s statement about the positioning of her keys as reflecting a consciousness of guilt, and it was ultimately concluded that this was appropriate, then it ought to have been the subject of an Edwards direction. Alternatively, if, as seems more likely, the prosecutor’s submission was an unfortunate flourish rather than an intentional submission that the jury should invoke consciousness of guilt reasoning, then the matter ought to have been the subject of a clear and specific direction that the jury should not reason in this way. We do not think the more general Zoneff direction given by the judge was sufficient to address the risk that the jury might invoke consciousness of guilt reasoning in their consideration of Hinrichsen’s statement about the positioning of her keys.
In our view, Ground 4 has been made out.
In concluding that the failure to address the risk that arose occasioned a miscarriage of justice, we have taken into account not only the fact that the prosecutor’s submission invoked language redolent of a consciousness of guilt, but also the fact that its prominence was unfortunately enhanced by the emotive terms in which it was made and the fact that it was the final submission made by the prosecutor. We have also taken into account that it related to a critical matter in the prosecution case against Hinrichsen.
Proviso
Having decided that Ground 1.7 (failure to direct as to withdrawal of encouragement), Ground 2 (failure to direct as to need to consider whether Skinner murdered the deceased on the evidence admissible against Hinrichsen) and Ground 4 (failure to direct in relation to the prosecution submission suggesting a consciousness of guilt) have been made out, the appeal must be allowed unless this Court is satisfied that no substantial miscarriage of justice actually occurred.[349]
[349] Criminal Procedure Act 1921 (SA) s 158(2).
The respondent did not advance a submission to the effect that this Court should invoke the proviso, and given the nature of the grounds that have been made out and their potential impact upon the outcome, [350] we do not think there is a proper basis to do so. The natural limitations of proceeding on the record prevent us from concluding, on our own independent assessment, that the evidence properly admitted against Hinrichsen at trial established her guilt beyond reasonable doubt.[351]
[350] Orreal v The Queen (2021) 96 ALJR 78 at [20] (Kiefel CJ and Keane J); Kalbasi v Western Australia (2018) 264 CLR 62 at [15] (Kiefel CJ, Bell, Keane and Gordon JJ); Weiss v The Queen (2005) 224 CLR 300 at [43] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ).
[351] Weiss v The Queen (2005) 224 CLR 300 at [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ); Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92 at [27] (French CJ, Gummow, Hayne and Crennan JJ).
Conclusion
As mentioned at the outset of these reasons, Ground 1 did not require permission to appeal, and permission has been granted on Grounds 2 and 4. To the extent necessary, we would grant permission to appeal on Grounds 2A, 2B, 2C and 3.
We would allow the appeal on Grounds 1.7, 2 and 4.
We would set aside the appellant’s conviction and order a retrial.
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