Hinrichsen v The King

This case concerned an appeal by the appellant, Hinrichsen, against her conviction for murder. The prosecution's case was that Hinrichsen was an accessory before the fact to the murder of her husband, committed by Skinner, or that she was a party to a joint criminal enterprise with Skinner to murder the deceased. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Livesey P, Lovell and Doyle JJ.

The primary legal issues before the court were whether the trial judge had erred in her directions to the jury regarding the fault element for accessory liability, specifically concerning the intention to encourage the commission of murder and the knowledge of the likelihood of its commission. Further issues included whether the trial judge had adequately related these directions to the facts, whether she was required to direct the jury on the objective capability of the encouragement, and crucially, whether she had erred in failing to direct the jury that the prosecution must exclude the reasonable possibility that any encouragement had been withdrawn or become spent. The court also considered whether the trial judge had properly directed the jury on the evidence admissible against the appellant when considering the primary offence committed by Skinner, and whether she had erred in failing to address the risk of the jury engaging in reasoning based on consciousness of guilt. Finally, the court examined directions relating to joint criminal enterprise liability.

The majority of the court, constituted by Lovell and Doyle JJA, held that while the trial judge correctly identified the fault element for accessory liability as requiring an intention to encourage murder, without necessarily requiring knowledge that the offence would occur, she erred in failing to direct the jury that the prosecution must exclude the possibility of withdrawn or spent encouragement. This was particularly relevant given the approximately 12-hour period between the key communication and the killing, and the defence's focus on this possibility. The majority also found an error in the trial judge's directions concerning the evidence admissible against the appellant when considering Skinner's murder, noting a risk that the jury might have treated Skinner's conviction as sufficient proof of this element for the appellant's accessorial liability. The majority further found that the trial judge erred in failing to address the risk of the jury engaging in consciousness of guilt reasoning without proper assistance. However, they found no error in the directions regarding joint criminal enterprise liability. Livesey P, dissenting in part, disagreed on the necessity of directing the jury on withdrawn encouragement, finding that it was not put into issue by the defence and that the trial judge's directions on separate consideration of evidence were clear.

The majority allowed the appeal on specific grounds relating to withdrawn encouragement, the admissibility of evidence against the appellant, and consciousness of guilt reasoning, setting aside the conviction and ordering a retrial. Livesey P, while agreeing to grant permission to appeal on some grounds, would have dismissed the appeal on others.