Hutt, Jeffrey, Hutt and Bell v The Queen
[1989] TASSC 27
•1 June 1989
Serial No 21/1989
List “A”
CITATION: Hutt, Jeffrey, Hutt and Bell v R [1989] TASSC 27; A21/1989
PARTIES: HUTT, Gregory Terrence
JEFFREY, Dean John
HUTT, Craig Jeffrey
BELL, Wayne John
v
R
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 106/1988
CCA 108/1988
CCA 109/1988
CCA 110/1988
DELIVERED ON: 1 June 1989
DELIVERED AT: Hobart
JUDGMENT OF: Cox, Underwood and Crawford JJ
Judgment Number: A21/1989
Number of paragraphs: 71
Serial No 21/1989
List "A"
File Nos CCA 106/1989CCA 108/1989
CCA 109/1989
CCA 110/1989
GREGORY TERRENCE HUTT v R
DEAN JOHN JEFFREY v R
CRAIG JEFFREY HUTT v R
WAYNE JOHN BELL v R
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX J
UNDERWOOD J
CRAWFORD J
1 June 1989
Orders of the Court (in each appeal)
Appeal allowed.
Conviction quashed.
New trial on the indictment.
Serial No 21/1989
List "A"
File Nos CCA 106/1989CCA 108/1989
CCA 109/1989
CCA 110/1989
GREGORY TERRENCE HUTT v R
DEAN JOHN JEFFREY v R
CRAIG JEFFREY HUTT v R
WAYNE JOHN BELL v R
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX J
1 June 1989
I agree with the reasons for judgment prepared by Underwood J which I have had the advantage of reading. I agree with the orders he proposes in each appeal.
File Nos CCA 106/1989
CCA 108/1989
CCA 109/1989
CCA 110/1989
GREGORY TERRENCE HUTT v R
DEAN JOHN JEFFREY v R
CRAIG JEFFREY HUTT v R
WAYNE JOHN BELL v R
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J
1 June 1989
In the early evening of the 17 January 1988 Michael Leslie McClymont was in the backyard of his home at Rokeby. There, he was attacked by a number of men, one of whom struck him twice on the head with a blunt instrument. A few days later he died from injuries caused by these blows. The appellants were jointly indicted and tried for the murder of the deceased. On the 6 September 1988 all four appellants were found guilty of murder and sentenced to life imprisonment. Each has lodged an appeal against conviction.
At the trial it was not disputed that one of the appellants struck the fatal blows with a pair of barrels from a shotgun, frequently referred to during the trial as the iron bars. The Crown put its case against each accused on several bases namely:
(1)As the principal or
(2)As an accessory within the meaning of the Code, s3(1)(b) and/or (c) or
(3)That each had formed a common intention with one or more of the co–accused to prosecute an unlawful purpose, that the crime of murder was committed in the prosecution of that purpose and was a probable consequence of the prosecution of that purpose.
First, it is necessary to set out some background which has a bearing on the relevant events.
Ill feeling had arisen between the appellant Craig Hutt and one Craig Rowbottom. The Crown led evidence that on the evening of the 13 January 1988 (four days before the infliction of the fatal blows), Craig Hutt returned home to find one of the doors forced open and his stereo missing. For reasons not explained by the evidence, Craig Hutt immediately set off in his car, presumably to look for Craig Rowbottom for when he saw Rowbottom's car being driven along a street, he intercepted it, discovered his stereo on the back seat and retrieved it. Craig Hutt's de facto wife, Tracey Hutt, had called the police but, by the time they arrived, Craig Hutt was back home with his retrieved stereo. No complaint was lodged with the attending police officers.
The evidence resumed the sequence of events by reference to what occurred on the day of the fatal assault. During that afternoon Rowbottom drove to Craig Hutt's parents' home at Risdon Vale. In the car with him were three friends, two female and one male. At that time the appellant Greg Hutt, and one of his sisters (the wife of the co–appellant Wayne Bell) lived with Mr and Mrs Hutt senior at Risdon Vale. Mrs Bell was very ill with cancer. When Rowbottom pulled up outside the Risdon Vale home the appellant Dean Jeffrey and his fiancee Tanya Hutt, (another sister of Craig and Greg Hutt) were there as well as the occupants of the house. Greg Hutt and Dean Jeffrey, as well as perhaps some of the others, were in the front garden and heard either Rowbottom or one of the passengers in his car ask if Craig Hutt was there. Greg Hutt said that Craig Hutt was at his own home whereupon Rowbottom said something to the effect that he wanted to see him and drove off. The nature of that exchange was such that those who heard it believed that Rowbottom was looking for Craig Hutt in order to do him violence. Tanya Hutt rang her brother Craig Hutt who was not then at his home in Clarendon Vale but visiting the appellant Wayne Bell who lived with his children some four hundred metres away. On receipt of the telephone call from Tanya Hutt, Craig Hutt and Wayne Bell repaired to Craig Hutt's house, presumably to await Rowbottom's arrival. Very shortly after they were joined by Greg Hutt and Dean Jeffrey. These two had travelled from Mr and Mrs Hutt's house in Risdon Vale in Dean Jeffrey's van. Greg Hutt brought with him a pair of barrels from a double barrelled shotgun. In his evidence he claimed that his reason for doing so was to defend himself from a possible attack by a bull terrier dog which he said Rowbottom owned and had with him in the car when it stopped outside his parents' house that afternoon.
As a result of a telephone call from Mr Hutt senior, the police arrived at Craig Hutt's house not long after the four appellants had gathered there. They did not go inside and spoke only briefly with Wayne Bell before driving off, having ascertained that Rowbottom was not there.
It is appropriate at this stage to interrupt the narration of events to point out that there was a close relationship between the four men. Greg and Craig Hutt were brothers. Dean Jeffrey was engaged to and living with one of their sisters and, as mentioned, Wayne Bell was married to another sister, Sharon. Further, Dean Jeffrey was Wayne Bell's son by a previous marriage.
After a short while, as Rowbottom did not turn up at Craig Hutt's house, the four men decided to go down to Bell's house. Later, Greg and Craig Hutt and Dean Jeffrey left there, went to a hotel and brought back some alcohol which was consumed by the appellants.
Shortly before 7pm the four appellants set off in Dean Jeffrey's van for a house in Rokeby occupied by Mrs Reeves. It was believed by at least some of the appellants that Rowbottom may have been at this house. The intentions of each accused before and during the journey to Rokeby was a matter of considerable debate at the trial. In his evidence Greg Hutt, who took the iron bars with him, claimed that he thought his brother Craig was simply going to enquire why Rowbottom wanted to see him and that he took the bars with him for protection against attack by Rowbottom's dog. He claimed that violence was not contemplated by him. Craig Hutt said that he went to Rokeby "to face Rowbottom". In his evidence in chief he said, "Well I never done nothin' to him, he broke into my privacy home [sic] and then he came looking for me. I believed in my own heart I had the right to face him." Wayne Bell gave evidence that he was angry with Rowbottom because he believed that his sick wife could have been upset by Rowbottom's visit to Mr and Mrs Hutt senior's house earlier that afternoon. In his evidence in chief he said, "I was just going to get Biddy [Mrs Reeve] to get him [Rowbottom] to give me a phone call. I was going to ask him not to go out hunting for Craig out at me father and mother–in–laws' place upsetting Sharron". Dean Jeffrey's evidence in chief was to the effect that Bell asked him to take him to Mrs Reeve's house and he agreed to do so. He said that he knew Bell was upset about Rowbottom's visit earlier in the day to Mr and Mrs Hutts' house. He claimed that he did not contemplate any violence.
The Crown case pursuant to the Code, s4, was that each accused formed a common intention to prosecute an unlawful purpose namely, in conjunction with one another to seek out Rowbottom whilst armed with a metal object, and apply violence to his person and that of any person or persons that may have been with him.
On the way to Rokeby Jeffrey stopped a taxi. The driver was known to one or more of the appellants. Craig Hutt got out of the back of the van and spoke to her. According to her evidence, Hutt asked her if she had seen Rowbottom or Mrs Reeve, told her that Rowbottom had stolen his stereo and said that he was going to kill him or words to the like effect. Craig Hutt conceded that he may have told the taxi driver he was going to fight Rowbottom but he denied telling her that he was going to kill him or anything like that.
On arrival at Mrs Reeve's house, which appeared to be unoccupied, Bell knocked on the door and almost immediately afterwards Craig Hutt kicked the door and Greg Hutt used the iron bars to smash a window. Next door the deceased was in his backyard with his two children Paul and Bradley. He called out something to the four appellants. Precisely what he said is unclear on the evidence but it was in effect a protest against the smashing of the window. What occurred next in the sequence of events was the subject of much debate at the trial but it appears to be common ground that all of the appellants jumped over the boundary fence into the deceased's backyard and that Craig Hutt grappled with him. Within minutes the fatal blows had been struck and all four appellants were driving from the scene. There was a considerable body of evidence to the effect that Greg Hutt was the one who struck the fatal blows including some evidence of admissions by him to that effect. There was no evidence upon which the jury could have found that any of the other three appellants struck the fatal blows.
The Crown case was that Greg Hutt was the principal offender and that the others were aiders and/or abettors Alternatively, that there was sufficient evidence for the jury to be satisfied that one of the four wielded the iron bars and that each of them was guilty as an aider and/or abettor. With respect to s4, the Crown case was that the crime was committed in the prosecution of the unlawful purpose and its commission was a probable consequence of such prosecution.
The Crown sought to adduce evidence of certain events which occurred somewhere between thirty and eighty minutes after the infliction of the fatal blows on the basis that it tended to prove the nature and extent of the unlawful common purpose which was being prosecuted by each of the appellants at the time the fatal blows were inflicted. Counsel for each accused objected to the admission of such evidence. At the trial it was agreed that the learned trial judge should determine this issue on the proofs of evidence of the witnesses to be called for the Crown and before any evidence was led; a procedure which, as was observed by the learned trial judge may give rise to difficulties. The learned trial judge ruled that the evidence was admissible.
Of course, the function of this court is not to review the learned trial judge's ruling on the material he had before him at the time it was made but to determine whether the evidence of certain events which occurred after the assault on the deceased was properly admitted at the trial. This evidence was referred to as the Risdon Vale incident. At the trial and on this appeal counsel for each of the appellants contended that this evidence was not admissible as a matter of law because it merely tended to prove a propensity for violence or alternatively, the learned trial judge should have excluded the evidence in the exercise of his discretion on the grounds that its prejudicial value exceeded its probative value.
The Crown called evidence from Tracey Hutt. She said, either from the witness box or in a prior inconsistent statement admitted after she was declared a hostile witness, that after the four appellants returned from Rokeby, Craig Hutt started "ringing all over the place looking" for Rowbottom. According to evidence later given by Rowbottom, Craig Hutt said to him over the telephone "Stay there, you're dead meat" and Rowbottom responded by saying "Come up if you like, you won't do it with your hands, you'll need something better than your hands". According to Tracey Hutt at this stage all four appellants began rushing round and "grabbing things". She said that the four then left in Dean Jeffrey's car and that at least a knife and the iron bars were taken with them.
Rowbottom's evidence was that, about ten minutes after the telephone conversation with Craig Hutt, he saw a van pull up outside his house. He was there with a friend, Stephen Pearce, and his girlfriend Tanya Matthews. When the van pulled up he went outside and met Craig Hutt coming up the front path. Immediately the two engaged in a fist fight. At some stage Craig Hutt got free and went to the van and took from it the iron bars. Rowbottom thereupon jumped over the fence and got away. With respect to the other three appellants Rowbottom said that he paid them little attention but did see them just standing around while the fight with Craig Hutt was in progress.
Tanya Matthew's evidence confirmed the account given by Rowbottom. She said that the next thing she noticed after Rowbottom had jumped over the fence was a fight in progress on the front lawn between Pearce and Dean Jeffrey. The former had a poker and the latter a knife. There was no evidence given by her to suggest that Greg Hutt or Wayne Bell took any active part in the proceedings at Risdon Vale.
Stephen Pearce was the last eye witness called by the Crown to give evidence about the events at Risdon Vale. He confirmed that there was a fist fight between Rowbottom and Craig Hutt on the front lawn which ended when Craig Hutt got the iron bars and Rowbottom jumped over the fence. He said that the bars were passed from the van to Craig Hutt by Greg Hutt. He said that after Rowbottom jumped over the fence, Craig Hutt smashed a window or windows with the iron bars. He agreed that he got a poker but denied that he was involved in any fight. This witness was also declared hostile and a prior inconsistent statement admitted into evidence but, in the exercise of the learned trial judge's discretion, did not go into the jury room. In it, Pearce described the actions of the four appellants after Rowbottom had jumped over the fence in the following terms:
"Craig Hutt, Dean Jeffrey, Greg Hutt, Dinger Bell started coming towards me. By this stage Dinger Bell had a baseball bat, Greg Hutt had the stock part of the shot gun, Craig Hutt had the barrel part of the gun and Dean Jeffrey had the knife. I was in possession of a fire poker. I jumped the side fence and the bloke with the knife came at me. By this stage the other three had stopped coming towards me. The bloke with the knife flashed it at me and I jumped back. The blade of the knife cut the front of my T shirt and grazed my stomach. I then lashed out with the poker and hit the bloke around the legs. He dropped the knife and went back to the car. Dinger Bell and Jeff Hutt started coming towards me and then I heard Hutt's father say 'Get out of here, the cops will be here'. By this stage, I had picked up the knife from the ground. The four of them got into the van and left."
However, in his sworn evidence Pearce claimed that he had made all that up and saw only the fight between Craig Hutt and Rowbottom. With respect to Pearce's evidence the learned trial judge observed to the jury in his summing up that it was plain that Pearce was a witness who could not be relied upon for even the most simple factual recitation of the truth.
Evidence was led from police officers that Craig Hutt admitted that he went to Risdon Vale to fight Rowbottom and was going to "get stuck into him" with the iron bars. In out of court statements to the police Dean Jeffrey and Wayne Bell denied being involved in the fight at Risdon Vale. There was no evidence that Greg Hutt said anything to the police about his involvement in the events at Risdon Vale.
In his ruling given at the beginning of the trial the learned trial judge said that he would admit the evidence of what had occurred at Risdon Vale notwithstanding that it tended to prove a propensity for violence and, in part, gave the following reasons:
"I have considered the submissions of counsel contending that the evidence of events following the attack upon Mr McClymont up to and including the subsequent violence at Risdon Vale should be excluded because it amounts to no more than propensity evidence but I'm unable to accept those submissions. The admissibility of such evidence in this case does not depend upon the argument that the evening's events amounted to one unified transaction of the kind under consideration in O'Leary's case, (1946) 73 CLR p566. It's clear that if one has regard to the chronological separation of events and the locality in which each occurred, the activities at Rokeby and those at Risdon Vale, were, to quote the words of Bray CJ in The Queen v Heidt (1976) 14 SASR 574, 'successive scenes of a play with a curtain dropped between'. That case incorporated a decision similar in its basic features to both The Queen v Cielsielski [1972] NSWLR 504, to which I've already referred and The Queen v Hocking, [1988] 1 Qd R, p582. Although, as The Queen v O'Malley, [1964] Qd R, p226, demonstrates, the difficulty in deciding where to draw the line between the unified sequence of events and separate acts may sometimes be difficult to determine. As the cases of Brennan, Stuart and Johns already referred to clearly demonstrate, the nature of the unlawful purpose or purposes in contemplation by the offenders, must always be of direct and immediate relevance to the probability that the offence named in the indictment would or would not occur. It follows, in my opinion, that an unlawful transaction, similar in kind to that suggested by other evidence in this case to have existed before the offence for which the indictment is laid, is shown to have occurred during the course of the evening's activities, the evidence of what occurred during that unlawful transaction may illuminate the mutual understanding of the offenders and may enable inferences to be drawn clarifying or amplifying the nature of the original plan as understood by each of them.
It may be that in the course of the trial, facts will emerge which will show that the common purpose originally agreed upon was abandoned or modified at some time subsequent to the violence, involving Mr McClymont. But this is not a view that I can or should come to at this stage of the trial dealing with these matters as preliminary issues in the way that I have. It's also plain from the authorities that if evidence is admissible upon some other legitimate and substantial basis, it is not excluded by operation of the similar fact rule simply because it discloses propensity. See, for example, Gillies, Law of Evidence in Australia, p379, para (G)." [His Honour then went on to decline to exclude the evidence in the exercise of his discretion.]
Leaving aside the evidence of the events at Risdon Vale, the evidence led by the Crown and admissible in the case against each accused of the existence of a common unlawful purpose was scant. There was ample evidence that, prior to going to Rokeby, Craig Hutt had formed the intention to seek out Rowbottom and offer him violence. The Crown led evidence from which the jury could infer that the other three appellants were aware of Craig Hutt's intentions, that they intended to accompany him as he carried out his intentions and that, to the knowledge of all of them, Greg Hutt had with him the iron bars. In his statement to the police Dean Jeffrey said that in the car on the way to Rokeby "the discussion was that if Rowbottom came out then Craig Hutt would fight him one on one unless anyone else stepped in we would help [sic]". With respect to Wayne Bell, the evidence of the police officers who attended Craig Hutt's house when the four appellants were there awaiting Rowbottom's arrival was that he had expressed resentment towards Rowbottom and said something to the effect that "if he came down, he would kill the bastards [sic]". In his record of interview Bell admitted that he felt anger towards Rowbottom because earlier that day he had called at the house of Mr and Mrs Hutt senior where his wife lay seriously ill. Finally, there was evidence from the hostile witness, Tracey Hutt, who was at Bell's house when the four set off for Rokeby to the effect that on leaving, all the appellants shared a common intention to seek out Rowbottom with a view to at least, Craig Hutt inflicting some violence on him.
The classic statement of the law governing the reception of evidence of criminal acts other than those with which an accused is charged is to be found in Makin v The Attorney–General for New South Wales [1894] AC 57 at p65:
"It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused."
The above passage has been cited with approval on many occasions including, by way of example, DPPv Boardman [1975] AC 421; Markby v The Queen (1978) 140 CLR 108; Perry v The Queen (1982) 150 CLR 580; Sutton v The Queen (1982) 152 CLR 528.
Counsel for the Crown submitted that the Risdon Vale evidence fell within the second limb of Makin's case in that it inferentially tended to prove that each of the accused shared in common with another or others an intention to prosecute the alleged unlawful purpose when they earlier went to Rokeby.
Evidence of the commission of crimes or misconduct after the commission of the act with which an accused is charged has been admitted on the same basis as evidence of the commission of crimes or misconduct before the relevant event. See R v Heidt (1976) 14 SASR 574; Griffith v The King (1937) 58 CLR 185; R v Armstrong [1922] 2 KB 555; R v Rhodes [1899] 1 QB 77; R v Rodley [1913] 3 KB 468.
The principle enunciated in Makin's case applies to all evidence of misconduct on either prior or subsequent occasions although the majority of the cases in which it has been applied concern evidence relied upon because of the similarity between it and the facts in issue at the trial. Since R v Boardman (supra) the High Court has authoritatively stated that circumstantial evidence of bad disposition is not admissible unless its probative value is high. In Markby v The Queen (supra) Gibbs ACJ (as he then was) said at p117:
"To be admissible the evidence must have 'a strong degree of probative force' (per Lord Wilberforce in Reg. v Boardman) or 'a really material bearing on the issues to be decided' (per Lord Morriss of Borth–y–Gest citing Harris v Director of Public Prosecutions); it may not be going too far to say that it will be admissible only if it is 'so very relevant that to exclude it would be an affront to common sense' (see per Lord Cross in Reg v Boardman; and see per Lord Hailsham of St Marylebone). The question is thus one of degree, and in answering it the judge must apply his experience and common sense. Although the judgment which the judge is required to make is to some extent discretionary, the rule of exclusion is a rule of law and not of discretion, and the principle allowing the admission of the evidence remains subject to the discretionary power to exclude it, even if legally admissible, where its prejudicial effect outweighs its probative value."
In Sutton v The Queen (supra) Gibbs CJ referred to Perry's case and said at p533:
"For obvious reasons of policy evidence of this kind is subject to a special rule of exclusion in criminal cases. Its admission is exceptional. According to the combined effect of the rules enunciated in Makin v Attorney–General (NSW) and expounded in many subsequent cases, the evidence is admissible only if it is relevant in some other way than as showing that the accused had a propensity or disposition to commit crime, or crime of a particular kind, or that he was the sort of person likely to commit the crime charged. But in Director of Public Prosecutions v Boardman the House of Lords held that bare relevance of that kind is not enough. Lord Wilberforce said that 'the basic principle must be that the admission of similar fact evidence (of the kind now in question) is exceptional and requires a strong degree of probative force'. I do not accept the view that has sometimes been expressed that the House of Lords in Director of Public Prosecutions v Boardman was formulating an entirely knew principle, which cut across both limbs of the rule in Makin v Attorney–General (NSW). The judgments of Lord Morriss of Borth–y–Gest, Lord Hailsham of St Marylebone and Lord Salmon show that the rule in Makin's case continues to be authoritative. It remains necessary to consider whether the evidence is relevant in some other than the prohibited way, but even if the evidence is so relevant it will not be admitted unless it is strongly probative or really material. This was the view accepted by four members of the Court in Markby v The Queen. The reason for requiring that the evidence should have a specially high probative value is succinctly expressed in an article by Mr Hoffmann in Law Quarterly Review, vol 91 (1975) 193, at p194:
'Ordinarily, similar fact evidence is excluded because it is very prejudicial. It is unfair to the accused to allow the jury to hear it because they are likely to give it more weight than it really deserves. But this unfairness disappears when the similar fact evidence actually does have a high probative value, and in such exceptional cases justice requires it to be admitted.'"
The correctness of the decision to admit the Risdon Vale evidence must be determined in accordance with those principles. It was submitted that the fact in issue, the existence of which this evidence was probative, was the state of mind of each accused during some period of time concluding with the infliction of the fatal blows, some thirty to eighty minutes earlier. The question in the case of each accused is whether the Risdon Vale evidence was both logically and highly probative of the fact that, at an earlier time, he had shared with one or more of the other accused a common intention to prosecute the unlawful purpose relied on by the Crown. In my view, the evidence adduced at the trial did not have the requisite degree of probative force and was inadmissible. Putting to one side the prior inconsistent statement of the witness Pearce which, for the reason apparent from the learned trial judge's comments to the jury, was not highly probative of anything, the Risdon Vale evidence in substance amounted to evidence of a fight between Rowbottom and Craig Hutt and some time later an involvement between Pearce and Dean Jeffrey, the latter being armed with a knife. It cannot be said that, inferentially, this body of evidence was logically or highly probative of the issue that, at an earlier time, one or more of the appellants shared with one or more of the co–appellants the common intention relied upon by the Crown in the prosecution of its case pursuant to the Code, s4.
After the infliction of the fatal blows all the appellants returned to Bell's house. The event which precipitated the journey from there to Risdon Vale was in effect a challenge over the telephone by Rowbottom to Craig Hutt that he had better come armed. According to Tracey Hutt's evidence it was at this stage that the appellants or some of them seized weapons including at least a knife and the iron bars before setting off for Risdon Vale. The intervention of that telephone call destroys any tenuous argument that might otherwise have existed that the Risdon Vale events were probative of a state of mind of any of the accused prior to setting out for Rokeby.
The evidence lacked the requisite high probative force that at the relevant earlier time any two or more of the appellants shared a common intention to unlawfully inflict violence on Rowbottom or any person or persons who may have been with him. It was prejudicial in that it tended to prove, at least in the case of two of the appellants, that they had a propensity for violence.
The evidence of what occurred at Risdon Vale played a significant part in the trial. Each of the appellants gave evidence. A not inconsiderable amount of their evidence in chief and cross examination was devoted to the Risdon Vale incident. The learned trial judge directed the jury that they could use this evidence to determine whether an accused shared an intention with one or more of the others to prosecute the alleged unlawful purpose at the relevant time. The admission of this evidence and the direction which accompanied it amounted to a wrong decision of a question of law and requires this court to allow the appeal.
The appellants Greg Hutt and Dean Jeffrey relied upon a ground of appeal that the learned trial judge erred in law in leaving to the jury the issue of whether the assault on the deceased was an act done in the prosecution of the unlawful common purpose. The Code, s4 operates to impose criminal liability for the commission of a crime only if there is sufficient evidence from which a jury could be satisfied beyond reasonable doubt (inter alia) that the crime was committed in the prosecution of a common unlawful purpose. See Brennan v The King (1936) 55 CLR 253. There must be evidence capable of satisfying the jury to the requisite degree that the crime was committed in the furtherance of that purpose. See R v Phillips and Lawrence [1967] Qd R 237 at p258. With respect to this issue the learned trial judge directed the jury in the following terms:
"So it means that you must ask yourselves whether the attack on Mr McClymont, whatever crime it amounted to, was committed in the prosecution of a common unlawful purpose. It has been urged upon you that, because of the events that occurred immediately before the accused got over the fence into Mr Rowbottom's [sic] backyard they were not acting in the prosecution of a common unlawful purpose. At all events, that is, as I understand, the arguments mounted by at least two defence counsel. But it appears to me and it is a matter whether you accept it or not, that you may well find that the accused was still engaged in the purpose of seeking out Rowbottom to apply violence to him even though they'd gone to Biddy Reeve's home and broken the window and climbed over the fence. You could, I think, still find that they were still engaged on their common purpose when they climbed into Mr McClymont's yard although, in a sense, they had been sidetracked from it for the time being by his intervention and his calling out to them to stop. But that is a matter for you."
Apart from an unlikely claim made by Greg Hutt in his evidence that he climbed over the deceased's fence because he believed that Rowbottom may have been there, there was no evidence that, at the time the fatal blows were struck, any of the appellants were then prosecuting the common unlawful purpose relied on by the Crown. There was no direct evidence and no evidence from which the jury could infer (except perhaps in the case against Greg Hutt) that, from the time the deceased called out until after he had been struck with the iron bars, any of the appellants were prosecuting a common intention to seek out and assault Rowbottom or any person who might intervene on his behalf. This is so notwithstanding that the prosecution of an unlawful purpose embraces all those necessary acts prior and subsequent to the commission of the crime such as carrying the iron bars and resisting any person attempting to frustrate the departure from the scene. Cf Raw v The Queen (1984) 12 A Crim R 299 (WA). Whatever the deceased called out following the breaking of the window it could not be construed as an attempt to intervene or frustrate the prosecution of the alleged common purpose. The evidence clearly established that, on hearing the deceased call out, each of the accused (except perhaps Greg Hutt if the jury accepted his evidence on this point) turned aside from the search for Rowbottom to give attention to the deceased. No reasonable jury could have been satisfied beyond reasonable doubt that, at the time the blows were struck to the deceased the appellants were prosecuting the unlawful purpose relied upon by the Crown. The only construction that could be put on the whole of the evidence was that from the time the deceased called out the appellants were, as the learned trial judge said, "sidetracked" from the prosecution of the alleged common unlawful purpose. It may be that, immediately upon the deceased calling out, the appellants or some of them formed the new common unlawful purpose namely, to offer some form of violence to the deceased, but this issue was neither argued nor left to the jury. In my opinion the learned trial judge erred in directing the jury that any of the appellants could be convicted on the basis of the Code, s4.
It is necessary now to refer to some of the evidence concerning the events that occurred in the deceased's backyard. Mrs Hunt and Mr Forsyth lived in a nearby house. Drawn to a window which overlooked the backyard by noise, both said that they saw three, not four, men climb over the fence and approach the deceased who backed away. The fence prevented them from seeing more than the upper halves of the bodies of the men in the yard. Mrs Hunt conceded that at some stage a fourth man may have been in the yard but Mr Forsyth was adamant that at all times a man, whom the jury could have well inferred was the appellant Jeffrey, stayed near the van parked on the roadway.
Mrs Hunt said that she saw the deceased go to the ground and out of sight. One of the men then wielded two blows with what appeared to her to be a piece of wood. Initially she said that at that time the two other men were close by but later said that only one other man was then close to the person with the piece of wood. Mr Forsyth said that as the three approached the deceased he saw one of them throw "a couple of punches" at the deceased, who then fell to the ground. He said that he saw one of the men strike down twice with a piece of wood and at that time all three men were close together. He also said that he saw movements of the upper torso of one of the men which clearly indicated a kicking motion.
Both witnesses denied seeing anything occur which was capable of being construed as an attempt by any of the men to separate the deceased from any of the other men as was later claimed to have been the position by three of the appellants. The description of the three men given by these two witnesses was imprecise, except perhaps that of the appellant Wayne Bell whom the jury could have inferred was the person who appeared to have kicked when the deceased was on the ground. Apart from that, no jury could have safely inferred from the evidence of these witnesses alone which of the appellants was in the deceased's backyard.
Bradley McClymont, the then 9 year old son of the deceased was in the yard with his father and elder brother when he heard the window smash next door. He said that his father called out "cut it out" and he then saw some men coming towards the boundary fence. He said that he saw one, who from his description, the jury might reasonably infer was the appellant Craig Hutt, climb over the fence and push and punch his father. At that stage Bradley ran away and saw no more of the relevant events.
His elder brother Paul, then almost 12 years old, confirmed the account given by his brother and said that he went inside to ring the police. In his evidence he said that when he came out again he saw his father lying on the ground with blood on his face and a man who, from his description, the jury might infer was the appellant Wayne Bell, standing over him. This witness's memory failed him or for some other reason he was unable to give a detailed account of the other events he had witnessed. The learned trial judge permitted the Crown to admit into evidence, pursuant to the provisions of the Evidence Act, s81B, three written representations made by this witness in statements to the police shortly after the fatal attack.
A ground of appeal relied on by the appellant Dean Jeffrey was that the learned trial judge erred in admitting these written representations into evidence because the inconsistencies between them and the oral evidence given by the witness were such that the learned trial judge ought to have refused leave to admit them pursuant to s81B(2). Read together, some inconsistencies between the witness's evidence and the contents of the statements can be seen but in my view, they are so few in number and of such little significance that it cannot be said that the learned trial judge erred by failing to exercise his discretion in favour of exclusion. By these representations (which did not go into the jury room) Paul McClymont described four men getting into the yard one of whom was carrying the iron bars and one of whom was carrying a stubby. He did not see the fatal blows inflicted.
In their evidence, each appellant admitted that he had entered the deceased's backyard and, one exception apart, each confirmed that all the others were in the yard. Craig Hutt and Dean Jeffrey said in their evidence that they did not see Greg Hutt in the yard.
The account given by the appellants Craig Hutt, Wayne Bell and Dean Jeffrey was substantially the same in that all three said that Craig Hutt was the first to get over the fence and was followed almost immediately by Wayne Bell and Dean Jeffrey. These three appellants said in substance, that Craig Hutt approached the deceased and started pushing him. Punching was denied. At that stage, Dean Jeffrey intervened between the two of them and tried to stop the altercation. As a result, the deceased, Craig Hutt and Dean Jeffrey all fell to the ground. Dean Jeffrey then started to pull the deceased away from Craig Hutt and simultaneously, Wayne Bell started to guide or "shepherd" Craig Hutt away from the deceased and towards the boundary fence. Dean Jeffrey said that he left the deceased as he was getting to his feet. He then followed Bell and Craig Hutt to the boundary fence. The three of them then got over the fence and returned to the car.
The appellant Wayne Bell said that he saw Greg Hutt get over the fence into the yard and that he attempted to restrain him from approaching the deceased and the other two but Greg Hutt broke free from his grasp and went towards them. Bell said that at this stage he started to guide or "shepherd" Craig Hutt away from the deceased towards the fence and that when they arrived there, "I just seen a quick sort of flash like that and looked around and Gregory hit him with the bar".
Greg Hutt said that he threw the iron bars over the fence and jumped after them. He paused to drink from a stubby of beer Wayne Bell had left on the fence and then approached the deceased who was lying on the ground. Craig Hutt was being guided back to the fence by Wayne Bell. Greg Hutt said that he then noticed the iron bars close by the deceased and not where he had thrown them. He picked them up and simply walked away and got out of the yard. He denied that he struck the deceased with the iron bars.
Evidence was given by an inmate of the gaol, one Palmer that Dean Jeffrey had admitted to him that he had pushed the deceased but the witness was not certain about this. There was also some rather weak evidence that tended to suggest that a mark on the deceased's body had been caused by a shoe worn by Wayne Bell. All the appellants knew that Greg Hutt was carrying the iron bars when they arrived at Mrs Reeve's house shortly before they climbed over the fence into the deceased's backyard. It was not disputed that, in out of court statements to police officers, Dean Jeffrey and Greg Hutt had lied about material matters in order to minimise their involvement in the assault on the deceased.
From all of this evidence and other evidence of admissions made by Craig Hutt, it was open to the jury to be satisfied that the fatal blows were struck by Greg Hutt and that at the time this occurred all the appellants were in the deceased's yard. There was also evidence capable of satisfying the jury to the requisite degree that, prior to the fatal blows being struck, Craig Hutt and Dean Jeffrey assaulted the deceased by either punching or pushing him or both and that as a result he fell to the ground. Further, it was open to the jury to find that, whilst on the ground, either at the time the fatal blows were being struck or shortly before, the appellant Wayne Bell kicked the deceased.
With respect to the Code, s3(1)(b) and/or (c), the jury was directed to consider the case against each of the appellants on the basis that each had aided the principal offender in the commission of the crime or, by an act or acts and/or their presence, each had abetted the principal offender in the commission of the crime. The learned trial judge directed the jury in accordance with Murray v The Queen [1962] Tas SR 170, that they could convict each of the accused of either murder or manslaughter.
In directing the jury on the issue of abetting the learned trial judge said that before they could convict they must be satisfied beyond reasonable doubt in the case of each accused that, acting in common criminal purpose with the person who struck the blows, by his conduct, including mere presence, he intended to encourage the commission of either the crime of murder or manslaughter. The learned trial judge did not direct the jury that they must also be satisfied beyond reasonable doubt that such conduct must have in fact encouraged the principal offender to commit the crime. By his notice of appeal, Greg Hutt complains that this omission constituted a material misdirection.
Criminal liability for the crime charged or its statutory alternative will attach to an abettor if the jury is satisfied to the requisite degree that:
1the crime charged or its alternative was committed.
2the conduct of the accused in fact encouraged the commission of that crime.
3the accused intended that there be such encouragement.
4the accused wilfully encouraged the commission of the crime, that is to say, shared a common criminal purpose with the principal offender.
Authority for those propositions is to be found in R v Russell [1933] VLR 59 at p67; R v Jones & Mirrless 65 Cr App R 250; Allen & Ors v The Queen 47 Cr App R 243; R v Clarkson& Anor [1971] 55 Cr App R 445; Smith v The Queen CCA 4/1979. In Allen (supra) the following passage appears in the judgment of the court at p249:
"In our judgment, before a jury can properly convict an accused person of being a principal in the second degree to affray, they must be convinced by the evidence that, at the very least, he by some means or other encouraged the participants. To hold otherwise would be, in effect, as the appellants' counsel rightly expressed it, to convict a man on his thoughts unaccompanied by any physical act other than the fact of his mere presence. Indeed, in our judgment, encouragement in one form or another is a minimal requirement before an accused person may properly be regarded as a principal in the second degree to any crime."
In the circumstances of this case an error of law occurred by reason of the omission to tell the jury that, in the case against each accused based on s3(1)(c), there had to be proof to the requisite degree that the principal offender was in fact encouraged by the conduct of the accused to commit the crime.
In my judgment each appeal should be allowed and the conviction quashed. Apart from one exception referred to shortly, it is unnecessary to consider any of the other grounds raised by the notices of appeal. Allowance of the appeal on any one of them would not entitle any appellant to a consequential order not open on the grounds I have dealt with.
The remaining question is whether orders for retrial should be made and if so whether such retrials should be confined to the crime of manslaughter.
On behalf of the appellant Greg Hutt it was not contended that any order other than a venire de novo was appropriate. With respect to the other appellants it was submitted that this court should order a new trial for manslaughter alone. The appellant Craig Hutt submitted in the alternative that in his case the court should enter a verdict of guilty of manslaughter.
The making of an order for retrial invokes the exercise of the court's discretion: the Code s404(1). In these appeals the only relevant consideration is "whether the admissible evidence given at the trial was sufficiently cogent to justify a conviction [for murder] for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case". See DPP (Nauru) v Fowler (1984) 154 CLR 627 at p630; see also Huck v The Queen [1988] WAR 231 at p235.
The misdirection with respect to the criminal liability of an abettor makes it inappropriate to accept the alternative submission made on behalf of the appellant Craig Hutt that this court substitute a verdict of guilty of manslaughter. The power to do so, provided by s403(2) is only exercisable if it appears to this court that "the jury must have been satisfied of facts which proved him guilty of that [crime]".
There was no admissible cogent evidence against any of the appellants, except Greg Hutt, to justify a conclusion that any of them was the principal offender. For the reasons given earlier there was no admissible evidence to justify a conclusion that criminal liability attached to any of the appellants by way of the Code, s4 on the basis of the common unlawful purpose relied upon by the Crown. Was there then sufficient evidence to justify a conviction for murder on the basis that the appellants Craig Hutt, Dean Jeffrey or Wayne Bell aided and/or abetted the commission of that crime?
Accessorial criminal liability for murder depended on the existence of cogent evidence admissible on the case against each appellant that:
1the crime of murder was committed.
2he did an act intending that it should aid or, by conduct he intended to encourage the principal offender to commit the crime.
3in the case of abetting, that his conduct in fact encouraged the principal offender to commit the crime.
4he knew of the facts which must be proved to establish that murder was committed.
5the commission of the act or conduct was accompanied by one or more of the states of mind prescribed by s157(1).
6such act was committed or such conduct engaged in before or at the time the fatal blows were struck.
Authority for the above propositions can be found in Smith v The Queen (supra); Murray v The Queen [1962] Tas SR 170; Johnson v Youden [1950] 1 KB 544; R v Russell (supra); Blackmore v Linton [1961] VR 374.
From the evidence principally of Mrs Hunt, Mr Forsyth and each of the accused it was open to a jury to be satisfied beyond reasonable doubt of the following matters:
1All the appellants entered the premises occupied by the deceased intending some form of confrontation with him.
2At the time the fatal blows were struck all the appellants were in the close proximity of the deceased.
3All the appellants knew that Greg Hutt had the iron bars.
4Prior to the infliction of the fatal blows Craig Hutt and Dean Jeffrey assaulted the deceased causing him to fall to the ground in which position he remained until hit with the iron bars.
5That Wayne Bell kicked the deceased at or shortly before the time the iron bars were used.
6Having regard to the events which immediately preceded the fatal assault, and the close relationship between the four appellants, by their conduct (including mere presence) each of the appellants intended to and in fact encouraged the principal offender to assault the deceased by hitting him with the iron bars.
The evidence of the nature and severity of the blows struck with the iron bars is capable of justifying an inference that when they were struck, the principal offender had one of the guilty states of mind prescribed by s157(1). The question is whether the evidence given on the trial was sufficiently cogent to entitle a jury to find by inference that each of the other three appellants shared with the principal offender the requisite criminality of purpose to ground a conviction for murder. Such inference could only be drawn if no rational inference consistent with innocence is open on facts, the existence of which a jury could be satisfied about beyond reasonable doubt. See Chamberlain v The Queen (1984) 51 ALR 225. Before resolving this question it is necessary to determine one more ground of appeal.
On behalf of the appellants Craig Hutt, Greg Hutt and Wayne Bell it was submitted that as a matter of law, there can be no accessorial liability for the crime of murder in respect of a homicide caused by an unlawful act which the principal offender ought to have known to be likely to cause death as provided by the second limb of s157(1)(c). It was submitted that as the requisite guilty knowledge is imputed and not actual it is impossible for another to share such knowledge with the principal offender. The second limb of s157(1)(c) was considered in Boughey v The Queen (1986) 161 CLR 10. In the joint judgment of Mason, Wilson and Deane JJ it was said at p29:
"The relevant question is not whether some hypothetical reasonable person in the position of the accused would have appreciated the likely consequences of the appellant's act. It is what the particular accused, with his or her actual knowledge and capacity, ought to have known in the circumstances in which he or she was placed. Inevitably, the word 'ought' requires the making of a subjective judgment by a jury. The jury must be persuaded, on the criminal onus in the context of a murder trial, that the established circumstances were such that the particular accused, with the knowledge and the capacity which he or she actually possessed, ought to have thought about the likely consequences of his or her actions. They must also be persuaded again on that onus and in the context of such a trial, that if the particular accused had stopped to think to the extent that he ought to have, the result would, as a matter of fact, have been that he or she would have known or appreciated that the relevant act or acts were likely to cause death."
In the case of a principal in the second degree the question is whether he wilfully aided or effectively encouraged the principal offender to do an unlawful act which the accessory, in turn, with his actual knowledge and capacity ought to have known in the circumstances in which he was placed was likely to cause death. Such knowledge by an accessory would make him "privy to the (imputed) criminal intent of the thing done" per R v Cramp (1880) 14 Cox 390. The principal in the second degree will be guilty of the crime committed by the principal offender if that knowledge accompanies an act done for the purpose of enabling or aiding the principal offender to commit the crime of murder, or in the case of abetting intentional and effective encouragement for the commission of that crime is given. Although to prove murder against both, the Crown must prove that the accessory shared with the principal offender a murderous intent, and each must have held one of the specific intentions or states of mind stated in s157(1), it is not necessary in my view that each offender should share the same intent or state of mind. Thus if the principal offender intended his act to cause the death of the deceased while the accessory did not share that intention, but did intend to encourage the perpetration of an unlawful act which the latter knew or ought to have known to be likely to cause death, there would still be a sufficient sharing of intent to make both liable for murder.
If they share an intent to do an unlawful act which in fact causes death then both "are criminally responsible for the result (i.e. death) of their acts. Whether it is murder or manslaughter will depend as to each of them upon the presence or absence of a particular intent or state of mind" (per Burbury CJ in Murray v The Queen [1962] Tas SR 170 at p185). In Frost v The Queen [1969] Tas SR 172 Crisp J said at p182:
"Further it is clear that where in the commission of a joint offence there are reasonable grounds for imputing to the accused severally different intentions and purposes of varying degrees of criminality, it would be a non direction not to inform the jury of the necessity of considering the state of mind of each man separately and to inform them of the possibility that while the principal offender may possess the specific intent necessary to make an unlawful killing murder, another offender or principal in the second degree may abet the offence without the same intent to be guilty of manslaughter. (See Murray v The Queen and the authorities there gathered.)"
A principal in the second degree cannot be convicted in the absence of proof that he had full knowledge of the circumstances which must be established to constitute the offence. In Johnson v Youden (supra) Lord Goddard said at p546:
"Before a person can be convicted of aiding and abetting the commission of an offence he must at least know the essential matters which constitute that offence. He need not actually know that an offence has been committed, because he may not know that the facts constitute an offence and ignorance of the law is not a defence."
See also Ackroyd's Air Travel Limited v DPP [1950] 1 All ER 933 at 936; Thomas v Lindop [1950] 1 All ER 966 at 968. The circumstances are the actus reus of the principal offender. In the case of aiders and abettors under the Code, s3, conviction of a principal in the second degree for the crime of murder requires proof that his acts or conduct were accompanied by one of the states of mind prescribed by s157(1). This view was adopted by the West Australian Court of Criminal Appeal in Warren & Ireland v The Queen (1985) 15 A Crim R 317 where Kennedy J, after reviewing the common law distinction between abettors or principals in the second degree and accessories before the fact, said at p327:
"Smith and Hogan [Criminal Law] also argue for the proposition that, when the principal has caused an actus reus, the liability of each of the secondary parties should be assessed according to his own mens rea. Whether or not that represents the law in the United Kingdom, it appears to me that this result has been achieved in s7 (s3, Tas) at least where the actus reus constitutes an offence in itself."
As to the present position in the United Kingdom see R v Howe& Anor [1987] 1 All ER 771 especially at p799.
There was evidence in the present case which could have satisfied a jury that the principal offender held one of the intents necessary to murder under s157(1) and that in the case against each accused other than him the only rational inference was that each held a criminal intent or state of mind at least of the kind contemplated by s157(1)(c) of the Code. It is therefore unnecessary to consider whether there was any sufficient evidence which would entitle a jury to draw the inference that any one of the latter appellants had, at the relevant time, the requisite state of mind specified by any other of the paragraphs in s157(1).
Accordingly, in addition to allowing the appeals and quashing the convictions, I would in the case of each appellant order a venire de novo.
File Nos CCA 106/1989
CCA 108/1989
CCA 109/1989
CCA 110/1989
GREGORY TERRENCE HUTT v R
DEAN JOHN JEFFREY v R
CRAIG JEFFREY HUTT v R
WAYNE JOHN BELL v R
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
1 June 1989
For the reasons stated by Mr Justice Underwood, I agree with him that the appeals should be allowed, the convictions quashed and an order made that there be a new trial of each appellant on the count of murder.
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