Lambert and Stokes v Tasmania - [2007] TASSC 76

[2007] TASSC 76

CITATION: Lambert and Stokes v Tasmania [2007] TASSC 76

PARTIES:  LAMBERT, Bradley Rex
  v
  TASMANIA, The State of

STOKES, Darryn
v
TASMANIA, The State of

TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)

JURISDICTION: APPELLATE

FILE NO/S: CCA 70/2005

CCA 71/2005

DELIVERED ON: 26 September 2007

DELIVERED AT: Hobart

HEARING DATE: 15, 16 May 2007

JUDGMENT OF: Underwood CJ, Slicer and Blow JJ

CATCHWORDS:

Criminal Law – Jurisdiction, practice and procedure – Summing up – Duty to put defence case.
RPS v R (2000) 199 CLR 620; Lyons v R A82/1992; R v Conway (2005) 157 A Crim R 474; Domican v R (1992) 173 CLR 554; Basto v R (1954) 91 CLR 628; Brown v R [1972] Tas SR 57; R vChecconi (1988) 34 A Crim R 160, referred to.
Aust Dig Criminal Law [802]

Criminal Law – Appeal and new trial and enquiry after conviction – Appeal and new trial – Appeal against sentence – Appeal by convicted persons – Applications to reduce sentence – When granted – Particular offences – Offences against the person – Generally – Murder – Two victims – Sentences of 42 years with 28 year non-parole period – Whether manifestly excessive.

Power v R (1974) 131 CLR 623, referred to.
Aust Dig Criminal Law [1010]

REPRESENTATION:

Counsel:
             Appellant Lambert:  T K Jago
             Appellant Stokes:  G A Richardson
             Respondent:  D G Coates SC
Solicitors:
             Appellant Lambert:  Legal Aid Commission
             Appellant Stokes:  G A Richardson
             Respondent:  Director of Public Prosecutions

Judgment Number: [2007] TASSC 76

Number of paragraphs: 134

Serial No 76/2007
File No CCA 70/2005
CCA 71/2005

BRADLEY REX LAMBERT v STATE OF TASMANIA
DARRYN STOKES v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD CJ

SLICER J (dissenting in part)
BLOW J

26 September 2007

Orders of the Court:

Appeal CCA 70/2005

Leave to appeal granted.
Appeal dismissed.

Appeal CCA 71/2005

Leave to appeal granted.
Appeal dismissed.
Serial No 76/2007
File No CCA 70/2005
CCA 71/2005

BRADLEY REX LAMBERT v STATE OF TASMANIA
DARRYN STOKES v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD CJ

26 September 2007

I agree with Blow J that there was a miscarriage of justice in this case by reason of the learned trial judge's failure to remind the jury of all the arguments advanced on behalf of each accused. It is the duty of a trial judge to see that an accused gets a fair trial in accordance with law, and part of this duty requires him or her to put the accused's case to the jury fairly. See RPS v R (2000) 199 CLR 620 at 637 and the other cases referred to by Blow J in his reasons for judgment at pars4 – 8.

The Criminal Code, s402(1), requires that an appeal be allowed in the event "that on any ground whatsoever there was a miscarriage of justice". However, subs(2) provides:
"(2) The Court may, notwithstanding that it is of the opinion that the point raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred." [Emphasis added.]
Had the learned trial judge completely failed to put to the jury during the course of his summing up the arguments raised by the accused, there would have been a fundamental error, sufficient to vitiate the whole trial process and consequentially there would be no room for the operation of the proviso enacted in s402(2). See Wilde v R (1988) 164 CLR 365 at 373. But there is no rule to the effect that the proviso cannot be applied in the event that the trial judge does not put every aspect of the defence case to the jury. This is made clear by the joint judgment in Wilde at 373, and by the court in the more recent decision of Weiss v R (2005) 224 CLR 300 at 317. It is a question of degree in each case whether a miscarriage of justice amounts to such a fundamental, or significant, denial of procedural fairness, that a new trial should be ordered even though the evidence of guilt, properly admitted, was overwhelming. This is not such a case because the learned trial judge did not wholly fail to remind the jury of the case of each accused. His Honour properly put the defence case with respect to the Crown contention that murder was committed in furtherance of a plan for the appellant Stokes to receive an inheritance, and he reminded the jury that the appellants' contention that murder was not a probable consequence of the prosecution of an unlawful plan to steal money. However, he failed to marshal in a cohesive way the appellants' reasons for the latter contention.

Accordingly, the issue arises whether that failure, being a miscarriage of justice, caused a substantial miscarriage to actually occur because if it did not, then the identified error will not result in an order for a retrial. In Weiss, the High Court re-examined the task of an appeal court when considering the common form of the proviso, enacted in the Code, s402(2). Past references to what the jury, or what a reasonable jury, would or might do, are to be avoided. The statutory provision casts an obligation on the appeal court to decide whether a substantial miscarriage of justice actually occurred. This obligation is "to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial", per Weiss at 315. This Court is required to survey the whole of the record of the trial, just as it is required to do when considering an unsafe or unsatisfactory ground. Having undertaken that task, the question is whether this Court, after making allowances for the limitations of proceeding only on the record of the trial, and bearing in mind the onus and standard of proof, is satisfied that "[each] accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict", per Weiss at 316.

For the reasons expressed by Blow J in pars55 – 57, the evidence of the guilt of each accused properly admitted at trial does prove beyond reasonable doubt that both appellants were guilty of both murder charges. In expressing that opinion, I take into account, of course, the fact that the record of the trial discloses the deficiency in the summing up that led to the conclusion that there was a miscarriage of justice.

Accordingly I agree with Blow J that the appellants should be granted leave (insofar as it is necessary) to appeal against convictions, but would dismiss the appeals. With respect to sentence, I agree with the reasoning and conclusion of Blow J and would join in an order of dismissal.
File No CCA 70/2005
CCA 71/2005

BRADLEY REX LAMBERT v STATE OF TASMANIA
DARRYN STOKES v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J

26 September 2007

Each appellant was convicted of the murder of two men, father and son, aged 84 and 62, at Penguin on 17 September 2004. The father, Lehman McHugh, was struck some 15 times with a tomahawk and his son Anthony, over 70 times. Each man suffered horrific and fatal head injuries, as well as receiving significant "defensive wounds".

Stokes, the first appellant, aged 35, had known both deceased for many years. Lambert, aged 29, was the former partner of Kylie Stokes, the sister of the first appellant and a significant prosecution witness at trial. Stokes stood to benefit from the death of Anthony McHugh, having been named as one of two beneficiaries to his estate. A further motive for the murders, as alleged by the prosecution, was Stokes' belief of the presence of a significant amount of money kept at the McHugh home. Evidence was led at trial that Stokes had previously attempted to persuade another person, Williams, to assist him in the theft of that money. It was the prosecution case that Lambert had agreed on the day of the killings to take part in the stealing of that money.

Stokes believed (correctly) that Anthony would be staying at his father's home on the evening of 17 September. The bodies were found on 18 September. Investigating police obtained a statutory declaration from Stokes on 21 September in which he suggested the names of two other persons as possible suspects. Lambert likewise provided a statutory declaration in which he falsely provided details of his movements at the relevant times which exonerated both Stokes and himself.

Stokes was further interviewed under caution as a suspect on 23 September about the inheritance, financial affairs and his relationship with each deceased. In that interview he told police that he had been given, some time previous, a key to the premises and knew of the existence of another hidden at the front of the building. He was asked about a man named Williams, a one time boarder at his home and who, at trial, gave evidence that Stokes had earlier asked him to assist in the burglary of the McHugh house. Stokes denied having gone to the McHugh house on Friday night or Saturday morning, having broken into those premises or having struck or killed either of the deceased.

There were significant differences between that material provided in the September statements and interviews and the version provided in a longer recorded interview conducted on 29 December 2004.

There was no dispute at trial that Stokes and Lambert had gone to the McHugh house, nor that at least one of the accused had killed the two men. There was no issue that the conduct or acts which had caused death constituted murder. No questions of accident, unintended consequence of a single blow, mistaken identity or self-defence were raised by the evidence. The number and form of the blows struck were themselves compelling evidence of intentional murder.

The prosecution case was that there had been a pre-planned killing and that Lambert had struck both deceased with the tomahawk at the instigation of Stokes, who was present at the scene, even if not physically present in the room for all of the time during the course of the murders. The primary case was that each accused was a principal, by virtue of the Criminal Code, s3, to murder as provided for by s157(1)(a). The prosecution advanced as an alternative basis for conviction that the appellants had entered into an unlawful purpose of the robbing of, stealing from, and/or harming the McHughs whilst each was armed, and that the murders were a probable consequence of the carrying out of an unlawful purpose or combination thereof. The alternate case permitted recourse to the Code, ss4 and 157(1)(b), (d) and (2).

The case for the prosecution was overwhelming. Both deceased were known to Stokes, who had a close relationship with the younger. Stokes had a strong motive for the killing of Anthony McHugh (De Gruchy v R [2002] HCA 33: (2002) 132 A Crim R 453). Stokes believed there to have been a large amount of money secreted in the house, a matter established by the later finding of $39,000 on the premises. Both appellants had gone to the scene armed with a tomahawk and knife respectively. Neither man had evidenced any fear of recognition or identification since any visit could be regarded as innocuous and on the prosecution case there would be no surviving eye witnesses. Both deceased had been killed in their bedrooms, suggesting a quick attack by a person familiar with the layout of the house and its surrounds. The admitted presence of both appellants at the scene of the murders, the form of the killings, and the correlation of the nature of the injuries with the weapons taken by the assailants, taken together with the above non-contested matters were, without more, sufficient to safely ground verdicts of murder.

Additional compelling evidence was led which strengthened the prosecution case, but which is said to have been weakened by cross-examination and inconsistency, which the appellants claim would warrant the upholding of these appeals since the directions associated with those matters were insufficient.

The grounds of each appellant are identical, claiming that:

"The Trial Judge erred in failing to adequately and fully put the case for the accused in his summing up to the Jury".

It is difficult to identify the claimed failure or failures since the arguments advanced are but critiques of minor discrepancies between accounts and alternate explanations for portions of incriminating evidence. In order to understand the critique, it is first necessary to consider the accounts provided by each appellant to police in their interviews of 29 and 31 December 2004.

Interviews with Stokes and Lambert

Stokes had previously lied to police in his statutory declaration sworn on 21 September and his recorded interview of 23 September 2004. On 29 December, his house had been subject to a search authorised by warrant and he was arrested before interview. Initially Stokes denied any involvement in the events of 17/18 September, that he had not been to the residence, or that he knew anything of the killings until told the following day. When asked about a claimed earlier approach to Williams to assist in the stealing of the money, he said:

"On the first occasion yeah but I had nothing to do with this and if I did I would, if, if I wanted money I'd do it the way I just said. I'd wait until, 'cause Lehman was going into hospitals quite often to get things done. Tony used to drive him like I knew when the house was empty and I would do it the way, that would be the only way to do it."

As the questioning progressed and the interviewing officers disclosed pieces of material supplied by others, contradictions emerged in the differing accounts provided by Stokes, and the tenor of his responses altered. He commenced by blaming Lambert, agreeing that there had been a plan about "getting the money", travelling to the house in Lambert's car, and his taking of a knife and Lambert's possession of a tomahawk. He claimed to have stayed outside and that he (Stokes) "didn't think he'd (Lambert) do what he did no." However, that account varied in turn. He admitted to seeing blood on Lambert while he, Stokes, was inside the house following which he "just sorta freaked out and left the house and said I dunno I can't find it".

Stokes claimed to have been in the house for only "two minutes". He told police that he had thrown the knife away in "Arnold Street" and that the yellow handled tomahawk had been handed to him by Lambert after it had been cleaned and then thrown by Stokes into the Leven River. According to Stokes, no blood had ended up on his clothes and Lambert had burnt his own bloodstained clothes. The following exchange occurred between the investigating officer and the appellant in relation to the likelihood of harm occurring during any burglary or theft:

"mm … did you participate in any conversation between you and Bradley where it was suggested that people in the house had to die.
dsNo
mmWas anything about killing the people in the house mentioned prior to going there.
dsOh well I suppose … Bradley said, if it comes to it, it comes to it, if it happens they'll die.
mmWhy did you take a knife.
dsOh, I don't know. I wasn't thinking straight.
mmWell Kylie states that you said, you encouraged Bradley to kill the occupants of the house and that you said you would take a knife in case he couldn't finish the job.
dsBradley said, Bradley said take this and if I don't, if something happens and they have to be killed and when I hit 'em and it doesn't work, you finish it.
mmSo do you agree that both you and Bradley planned to go and rob the house.
dsYeah.
mmand that in the planning of that robbery you both accepted that two people may have to be killed.
dsAh it's not the, um, the, ah, yeah I suppose I'll have to because I, I didn't, if I'd have known he was going to do that it wouldn't have happened.
mmKylie states in fact you said that it doesn't matter whether we find the money at the house because I will get it in the Will anyway.
ds'Cause
mmWhy would Kylie lie about that fact.
dsWell Kylie has known for a lot of years that Liz and I are sole beneficiaries of Tony's Will so."

Stokes was asked whether he had discussed the need for the younger McHugh to be killed just because of inheritance law, a matter which he denied, although he agreed that he had suggested the robbery. The following are but selected extracts taken from the transcript of the interview which are relevant to the issues of planning, responsibility and possibility of harm:

"mmAnd you were the one that told him what he needed to know to be able to do it. So why is it that Bradley was then the one that planned to kill them. If you were … if you were responsible for all the planning, why is it that it's Bradley's idea to kill them.

ds Well Bradley's the one that killed them, ask him.
mmI accept that you're telling me that Bradley is the one that killed them, but Kylie states that she heard you say that they had to die, and that was your idea. Because you would benefit from the estates if they die.

ds No well
mmI put it to you that you planned with Bradley to kill them purely for greed and financial gain coming from either the cash you would secure from the house that night or the beneficiary, being the beneficiary of the Wills.
dsThe only Will that I've even thought of was Tony's, and Tony had nothing anyway so.
…
mmWe've interviewed Corey stokes and Corey stokes [sic] he overheard, stokes states he overheard a conversation on the night of the murder where you and Bradley planned to do the murders. And that in fact you planned to hide the money in spare tyres. Is there anything you would like to say about that.

ds       No it could be right. I wouldn't know. I can't …
mm      Why wouldn't you know Darryn.
ds       Because I can't remember.
mmCorey stokes also stated that you planned with Bradley to reintroduce that money into your own lives via adding a couple of extra hundred dollars to yourself each payday. So not only did you plan where to store the money, but you were planning in how to spend, how to, how to launder that money effectively. Is there anything you would like to say about that.

ds Well you couldn't do that with old notes. Could you.
…
mmHow do you explain planning to do the robbery where you've planned to kill them.

ds       I didn't plan to kill them.
mm      You knew it was a very real prospect but. Did you not
ds       Yeah well, yeah.
mm      So was the robbery not based on greed.
ds       The robbery was to get some money. And so
mmWhat you thought to be between a hundred and fifty and two hundred thousand dollars.

ds Yeah.
mmSo you're actually there to do a robbery for between a hundred and fifty to two hundred thousand dollars.

ds Mm
mmAnd you took with you a knife which you planned to use to kill the people if something went wrong.

ds But I didn't.
mmIf that was your plan, well can you tell me what the plan was at the house. What you told Bradley to do at the house.
dsNo well I can't tell you 'cause I can't remember. But you've obviously got enough shit from other people so you must know enough. Like Kylie and Corey must be filling you in enough so I can't … If I said any of that that they've said well I can't remember it.

mm      But do you deny any of that
ds       That's why I can't deny it if I can't remember it can I.
…
mm      Any questions you want to ask at this stage.
rgYes. You stated that you discussed before you left Allambie Crescent that if you were seen that the two people may have to die. Is that right. Or words to that effect.
dsYeah

rg Is that right, sorry
...
ds Yeah all right.
rgYeah. So it is the case then that you went to Arnold Street, to 4 Arnold Street with the full knowledge the deaths of those two people was a very real possibility.

ds Yeah.
rg So nothing that occurred was a surprise was it.
…
rgAnd that's why you took an axe, that's why you took a tomahawk and that's why you took the knife.

ds Yeah well I couldn't go through with any of it so I stayed outside.
rg Whether you stayed outside or not is incidental.
dsYeah I know. I'll go to prison for longer than he did because you fellows are stating I planned it so.

rg       Well you did plan it didn't you.
ds       Well basically yeah
rg       And you're the one who got Brad to help you.
ds       Yeah well you can lead a horse to water but you can't make it drink."

Lambert likewise had earlier lied to police. He was formally interviewed on 31 December and a videotape of that interview was tendered to the jury. He had been shown a short extract of the videotaped interview previously conducted with Stokes referred to above. Lambert told police that Stokes had suggested the robbery, that he, not Stokes, had taken the knife and that it was Stokes who had entered the McHugh residence. His account was:

"blIt's tea time that day. Well that was roughly when me and Kylie went down the street to get a carton of piss and on the way down the street, oh well prior to that, yeah days before that Darryn had been talking about going to bump, like going to rob these two blokes over in Penguin. And the two blokes that he was going to rob was the two blokes in question. Um, the two blokes that have been murdered. And anyway like I was saying, me and Kylie went to the, down the street. I was talking to Kylie about it. I said to Kylie, well next time Darryn mentions it I'm just going to say to him well if you want to do it we'll do it. And with that, I went back home, started on the piss, pretty well drunk all our carton, and then Darryn had started bringing it up again. I said well if you want to do it Darryn let's go and do it then. Let's go and rob these people of their money. And I dunno it was about twelve, one o'clock, bit later, we decided we was going to go over there. And when we got over there, oh well before we'd left I grabbed a knife out of the kitchen, kitchen, I dunno what you call 'em, what are they called, oh statue sort of things. Um
mmKnife block.
blKnife block, that's what they are yeah.
mmGo on.
blKitchen, a silver handled knife out of the kitchen block and Darryn grabbed the block, the tomahawk out of the back, of the back yard, just inside the back gate. And we went over there, went to the back door like Darryn had said in his interview. Went to the front door. Darryn ended up going inside to the, to the, into the place and come back out half hour, oh not that, ten minutes I suppose, he come back out and said come in and help me find where the money is. And before that he said the money was supposed to be underneath one of the bedroom, underneath one of the bloke's beds. So I went in there, had a look in the bedroom, the first bedroom to your right. And there was a fellow laying in the corner with his head facing down. And that's when Darryn went over and hit him again with the, with the tomahawk. And that's when I took off out of the place and ran back to, on the way back to running back to the door I'd put the knife that I'd had underneath the bush on the way out, underneath a bark tree bush. To where the car was. And then I hopped in the car and sat there and waited for a good ten twenty minutes for Darryn to turn back up. So obviously he must have been still looking for the money or whatnot. And then when he did turn up he'd um threatened me with the block bust, with the, with the axe, the tommy axe, saying that if I had have said anything to the police that I would have been murdered meself. And then we left there, went to my cousin Robbie's house in Queen Street and when we got to there, I said to Darryn we may as well swap clothes 'cause then the clothes that you're wearing, if I go in and say to my cousin Robbie that I've just been bashed, you know been in a fight down the street of, um, Ulverstone that he'd you know let me burn the clothes there. So I went, went in there and said to Robbie that you know I just got into a fight down in Ulverstone and can I burn me clothes here because if I get pulled in by the police I'll go to jail, which you know I burnt the clothes, I had a shower because where Darryn had put the tommy axe to me, full on me face there, that's where he'd um left blood over me. I had blood over me arms where I've put his clothes on, and then went to the, had a shower, then we hopped in the car, went back to Darryn's house, told Kylie what went on, and that's about it."

Lambert claimed that while he was inside the home Stokes:

"… went back over and hit the bloke with the tommy axe again. And that's when I left because I thought he was just going in there to bash 'em up."

Lambert admitted ownership of a yellow and blue handled tomahawk, but maintained that it was taken and used by Stokes. He said that he believed that the two were going to "do an armed robbery", but the weapons were taken "just to threaten them". The plan was that:

"Darryn was going to go in first to knock these two blokes out. Well that's what I thought he was going to do. Was knock 'em out and go in and look for the money."

When the two had entered the house he, Lambert, had seen Stokes hit one of the men over the head at which stage he, Lambert, had quit the scene. Later he had seen blood all over Stokes. Lambert, for a reason never quite explained, claimed to have swapped clothing with Stokes after the killings before they were burnt. The significance of that claim was that the prosecution used it as corroboration of an account of another person who had seen the two men after the killings. Significantly, Lambert claimed to have seen only one blow struck, and despite his presence in the house for some considerable time, had not heard any of the other 60 – 70 blows struck to one of the men, nor any noise which, given the presence of defensive wounds, one would have expected during the course of a struggle. The interrogating officers raised the question of any belief of risk or anticipation of danger held by the appellant during the following exchange:

"rg So your version of events, as I understand it, correct me if I'm wrong, what you were going to do is go over and knock these two out and steal their money. Is that right.
blThat's it.
rgLehman's 84 years old, Tony's 62.
blMm.
rgWould you agree that knocking out an 84 year old man could be very hazardous to his health.
No audible response.
rgAnd it's a very, a very real possibility that knocking out an 84 year old man could kill him.
blJust didn't think about it at the time.
rgYou've never heard of people being knocked out, hitting their head and dying.
blYeah.
rgSo it's a probably [sic] consequence of knocking someone out that they may die isn't it.
blYes.
rgAnd yet you went over there with the full knowledge that there was a strong possibility that one or both of these two individuals would die.
blYeah.
rgDid you not.
blYeah.
rgSo it really makes no difference about who did the killing does it.
blNo
rgThat's all I have."

It is difficult to see how the learned trial judge could have put the "respective defence cases" more fairly or reasonably than he did. He told the jury that admissions made by one appellant could not be used in the case against the other. He gave adequate directions in relation to the Code, s157(a), (b) and (c), and dealt with the doctrine of common purpose. He left manslaughter as an alternate verdict to the advantage of each appellant. (See Buttle and Wade v R [1984] Tas R 209), as well as the right to return a verdict of being an accessory after the fact (Leaman v R [1986] Tas R 223).

This was a classic jury case. The respective defences were:

(1)It was for the prosecution to prove its case beyond reasonable doubt.
(2)Evidence of admissions made by one accused, unless made in the presence of the other who acquiesced or confirmed the account, were not admissible on the trial of the other.
(3)The evidence of Stokes given at trial which purported to exonerate himself and implicate Lambert was admissible on the trials of each. It was for the jury to evaluate that testimony.
(4)Neither man had admitted to the jury, either directly or through a recorded "confession", the acts of killing.
(5)Corroborative evidence given by three other persons was either unreliable or fabrications.
(6)The killings had occurred outside of any intended unlawful purpose.
(7)Any lies told by either appellant were capable of explanation.

All of those matters were properly and fully put to the jury. The learned trial judge was not entitled to enter into an area equivalent to a directed verdict. In Unsworth v R [1986] Tas R 173, the prosecution case was that two men had gone to the home to get money from the deceased, who had been killed with an axe. Both men, one of whom was related to the deceased, were alleged to be culpable as either the principal or as an abettor. Both accused gave evidence at trial, each claiming, consistent with their statements to police, that it was the other who had inflicted the blows. The learned trial judge had invited the jury to consider that the infliction of 29 blows with an axe indicated that the death was caused by a person in a state of extreme rage. In the course of his summing up, the learned trial judge postulated a theory that there were reasons for the appellant to be in a frenzied rage and told the jury:

"But I want to suggest to you only that the proposition that this is a two man crime is by no means obvious and there is a lot against it. And any theory which fails to take account of and explain that body and those wounds is suspect. Now there are important consequences to this because if you are not satisfied it was a two man crime you cannot convict both of them. If you are satisfied it is a one man crime you have to be satisfied beyond reasonable doubt which one it was before you can convict either of them. So you really have got to consider that I think, but it is a matter for you."

Unsworth was convicted and the co-accused acquitted of the crime. The ground of appeal was that the directions were unfair and unjust insofar as they related to the appellant. The argument advanced was that the comments were inappropriate and constituted an incursion into the task of the jury. In his reasons for judgment, with which the other members of the court agreed, Underwood J (as he then was) stated at 180 – 181:

"A reading of the whole summing up makes it clear that his Honour made sure his criticism of the Crown's theory and its consequential effect of favouring Bowden did not amount to an improper intrusion into the deliberative process of the jury. He gave the jury the usual direction concerning the respective roles of a jury and a trial judge and prefaced that part of the summing up to which exception is taken with these words:–
'Now it will become obvious to you that what I am about to say is not mere repetition of counsel's arguments but represents my own reasoning and to some extent my own opinion. Also, it does tend to favour Bowden against Unsworth. Now it is very important therefore that I repeat – even if it bores you – that you are the judges not me. My words carry no more weight than counsel's. The fact that I sit up here in special robes, that everyone stands up when I come into court, everyone stands up when I go, does not make me eminently wise and intelligent. People show respect for my office, not for my intellectual prowess. I am no different from counsel. It is not many years ago when I was sitting down there saying "If it please your Honour" and so forth. I am just a man and what I say is just a man's comment. So you listen to me, but listen critically, and apply your intelligence to what I am about to say.'

In the circumstances of this case it was appropriate for the trial judge to expose the Crown case to criticism notwithstanding that such criticism involved an expression of view which favoured Bowden at the expense of the appellant. His Honour went to considerable length to instruct the jury that his observations carried no extra weight because they emanated from the Bench and that they should be accorded the same weight as those made by counsel. There is no reason to suppose the jury did not deliberate in accordance with that instruction.
On behalf of the appellant it was also argued that the learned trial judge's review of the evidence favoured Bowden, but there is no substance in this submission and accordingly ground 3 of the notice of appeal is not made out."

Here the learned trial judge did not suggest to the jury any view which he might have had as to which accused had inflicted the blows, nor did he advance the cause of one as against the other. He fairly put both of the cases advanced on behalf of each appellant. He did not fail to properly put the defence of either.

In James v R 19/1987, the prosecution had alleged that three men had entered commercial premises with intent to commit the crime of robbery. The complainant, the owner of the business, was shot during the course of the robbery. James and one of the other men were jointly charged, among other crimes, with one count of grievous bodily harm and three of attempted murder. However, the particulars alleged that it was James who had used the firearm and the jury were directed that they could not convict the co-offender of the crime of causing grievous bodily harm or attempted murder unless they were satisfied that he had either instigated those crimes or they were "a probable consequence of the prosecution" of the robbery. The complainant had given evidence at trial. His evidence was summarised by Cosgrove J in his reasons for judgment at 14 in these terms:

"Mr Mastrapostolos gave evidence through an interpreter. He said that he unlocked the back door of his shop and went outside. He could then 'see a person six or seven feet away with a gun and he ran towards me'. He said that the person 'hit me on the face with his hand and I could see the lights going around'. He gave the man his wallet. The man said that he wanted the rest of the money. He went into the shop 'and gave him the money. He was still hitting me on the head, I fell down and I can't remember any more'. He said that he was being hit on the head with the butt of the gun from behind. It is obvious from the transcript that Mr Mastrapostolos' memory of events was unreliable and that he was prone to reconstruction. He identified Devine as the man who shot him although he had no memory of the shooting. His identification of Devine was two–fold – first from police photographs which the learned trial judge rightly told the jury to ignore and second a 'dock' identification. He said that he did not see James, the appellant, on that night or any time prior thereto."

The co-accused, Devine, gave evidence at trial that "… while he was carrying out his part of the plan, the appellant [James] unexpectedly and in no way according with the scheme which had been concocted, rushed into the shop and performed the acts which formed the subject of counts four to seven inclusive". The case against James as to the use of the firearm depended in part on an unsigned document evidencing a record of interview. James at trial denied the use of the firearm. The grounds of appeal relevant to the convictions for attempted murder and causing grievous bodily harm in his case were:

"a)He failed to put to the Jury that in consideration of the case against me they were not confined to the Crown Case as particularised against the co–accused Robert James Devine, and that they were free to consider on all the evidence that it may have been Robert James Devine who entered the premises with the rifle, struck Kostinos Mastrapostolos with it on the head and then shot him and that on that view of the evidence it was open to the Jury to find me guilty as an accessory only or not guilty of the crimes charged.
b)He failed as a consequence to sufficiently put my defence to the Jury.
…
3That having regard to the way in which the Crown presented its case against the co–accused, Robert James Devine, His Honour the Trial Judge ought to have specifically directed the Jury to the effect that they were entitled to find that Robert James Devine committed the acts referred to in the Indictment and that if they were so satisfied or left in a reasonable doubt as to whether I had committed the acts referred to in the Indictment then I ought to be acquitted.
4That the written material in the Jury Room comprising the Indictment, Particulars and Memorandum would have the tendency to direct the attention of the Jury away from my defence and in those circumstances a specific direction that the Particulars were not to be used to confine the Jury's consideration of my case was required."

The essence of the appellant's case was stated in the written submissions, as restated by Cosgrove J at 13, namely:

"What we say is that the effect of the particulars, the written memorandum and the direction was that the Jury could not convict Devine on the basis that he did the shooting or assault in the shop. They were precluded from considering the case against him on that basis. However, it was a necessary consequence of James' case that the Jury should consider whether there was a reasonable possibility that it was indeed Devine who used the rifle in the shop."

The grounds were dismissed for the reasons stated by Cosgrove J at 17, namely:

"In the light of the foregoing, there is, in my view, not the slightest basis for any suspicion that the jury might not have known that they ought not to convict James unless they were satisfied beyond reasonable doubt that James (and therefore not Devine) did the acts charged. As I have said the conclusion that either James or Devine did those acts was unavoidable. To be satisfied beyond reasonable doubt that James did them required the exclusion of Devine. That proposition is self–evident and nothing in the particulars, the memorandum or the summing up detracted from it. Whatever Ground 1 of the Notice of Appeal means (and it is not free from obscurity and error) there was no need for any explicit direction (as Mr Cranswick QC put it in his oral submission) to consider in relation to proof of James' guilt the possibility 'that Devine fired the shot' (obviously by the passage in quotation marks, he meant that Devine was the principal). It was impossible to be satisfied beyond reasonable doubt of James' guilt without doing so."

In Buttle and Wade (supra) the Court of Criminal Appeal dismissed appeals, in a case involving common purpose, by two of the accused who were not present at the killing, where manslaughter had not been left to the jury as an alternate verdict.

In each of the above cases, this Court upheld convictions in circumstances where the trial judge had not put to the jury a matter or issue relied upon by the defence. A trial judge is not required to advance, in the course of directions or summing up, each and every matter urged by an accused. A trial judge is required to direct the jury as to the legal issues raised on the trial, provide directions as to the applicable law, and remind the jury of the respective significant matters raised on the evidence. That was done here.

Here the "defences" had properly been formulated and put to the jury. The direction given by the learned trial judge in relation to the issue of common purpose and the Code, s4, was in accordance with the approach taken by the High Court in McAuliffe v R (1995) 183 CLR 108; Gillard v R (2003) 219 CLR 1; Clayton v R (2006) 81 ALJR 439. (See also R v Taufahema (2007) 234 ALR 1).

Evidence of Stokes

Stokes, first named on the indictment, elected to give, but not adduce, evidence. He denied ever approaching or discussing with Mr Williams, who had given evidence to the contrary, any plan or suggestion that the McHugh house be burgled. He told the jury that on 17 September he had mentioned generally the possibilities of getting money said to have been secreted at the McHugh house and that the suggestion had been taken up by Lambert. Stokes had given Lambert the address "cause I wasn't going" and that Lambert had written the address "on his hand". His account, given in his evidence-in-chief, continued:

"Now, was there, well I'll come to the 17^th, let's go back to the earlier discussions. During those earlier discussions about the stealing of money when nobody did take you up on it, was there ever any discussion about anyone being harmed in (inaudible)?……….No.
Okay, on the 17^th of September was there ever any mention of someone being killed?…….The only mention of any of that came out of Kylie's mouth. Kylie said –
After you've decided that you're going?…..Yeah, yeah.
Because he doesn't know Penguin?……Yeah.
What happens, tell the jury?………Well we select clothes I suppose and Kylie someone wearing a red jumper and she says, 'If you get recognised Darryn, you're going to have to kill 'em.'
Okay, and did Bradley say anything?……..Bradley, 'If it has to be done, it will happen.'
And did you say anything?……..I said, 'Don't be stupid, I'm not even going inside, so I won't be recognised.'
Okay, and did you have any belief as to whether either Tony McHugh or Lehman McHugh had ever once in their lives set eyes on Bradley Lambert?………Not to my knowledge, no.
So wouldn't know him?………No, wouldn't know him.
Okay, obviously know you?……Oh yeah.
And your plan is, don't go in?…..Oh yeah I wasn't going in.
Okay, now we know weapons were taken, why?………To scare 'em, well Brad had a tomahawk to scare 'em if they woke up, and I don't know why I took a knife, but I just, I suppose because he had one, I took a weapon because he had one.
…
Okay. When you left that house to go, did you have any suspicion that anyone was going to be physically harmed?……….No, none whatsoever.
…
Where'd you go first?………..Down to, well Brad went down around to the back door. And he was making a bit of noise so I went round to the back door. I'd waited out the front, but then I went around to the back door and said 'If the back door's locked, you'd better try the front'
Okay. And after telling him to try the front, did you-? Where did you go?………Well he went to the front door and I headed back toward the car.
…
Okay, where did you actually meet each other again?…..In the door.
Right, and did either of you say anything to the other?…….I said, 'What have you done?' because he had a, what looked like a lot of blood on him.
Okay, did he ask anything of you?…….He said, 'Where's the money?'
Okay, just tell the jury how it happened from there?……..Well he said, 'Where's the money and –'
Did you ask him what had happened?……..Yeah I said, 'What have you done? What have you done?' and he just started walking back inside and he was kicking a suitcase along in front of him. I said, 'What's happened?' and he said, 'Oh the young wouldn't, wouldn't die.' And I said, 'What you fuckin' killed 'em?' and I said, 'I'm out here, I'm getting out here, I don't want any money, I don't want nothing, I'm going.'
So you're out?…….Yeah, gone.
Right, did you go into any of the bedrooms?……..No."

He told the jury that he had initially lied to police because:

"Why did you lie to the police about your involvement in this event? ……Well, well it was my idea to do a robbery and I didn't, I felt responsible for the deaths of the people that died and I didn't want to be arrested and charged with a murder that I didn't commit."

He conceded that he had "planned or proposed the stealing of money", but that it was never planned to kill or harm anybody.

In cross-examination, both by counsel for Lambert and the prosecution, he denied any involvement in the acts of murder. In the course of cross-examination he attacked the credibility and character of the witnesses Williams and Kylie Stokes and her son Corey, and the accuracy or reliability of their evidence.

The evidence of Stokes was admissible on both trials. Lambert elected not to give evidence.

The case to be considered by the jury was relatively simple. Two men had been brutally murdered. Both appellants had been present at the scene and time of the killings. There was no evidentiary basis for accidental death or manslaughter on the part of the perpetrator. Either both men had participated in the acts of murder (s3), or one of them had remained physically distant from the conduct. If one had remained distant and the suggestion was that, if so, it was Stokes, the jury question became whether the killings were a probable consequence of the prosecution of an armed robbery. Both men were armed, knew the house to be occupied by the father and son, and anticipated a lengthy search for hidden money. One of the appellants had previously attempted to persuade another to undertake a similar venture and had a strong motive in that he would benefit by the death of at least one of the men.

The prosecution had made the matter more complex than might have been necessary through its provision of particulars which provided:

"Particulars
Darryn Stokes murdered Lehman Joseph McHugh and Anthony James McHugh in one or more of the following ways.
1By striking Lehman Joseph McHugh and Anthony James McHugh about the head and body with a tomahawk either by himself and/or in combination with Bradley Rex Lambert and at the time of the striking of the said Lehman Joseph McHugh and Anthony James McHugh, the said Darryn Stokes had one of the states of mind set out in Section 157(a) to (c) of the Criminal Code.
2By instigating Bradley Rex Lambert to assault Lehman Joseph McHugh and Anthony James McHugh with a tomahawk and at the time of instigating such an assault the said Darryn Stokes knew the assaults were either
(a)     intended to cause death; or
(b)    intended to cause bodily harm which he knew was likely to cause death;
(c)     were unlawful acts which he knew or ought to have known were likely to cause death.

particulars of instigation
(i)     By urging, and entering an agreement with Bradley Lambert that they would go to Anthony McHugh and Lehman Joseph McHugh's residence at 4 Arnold Street, Penguin and that Bradley Rex Lambert would kill both Anthony James McHugh and Lehman Joseph McHugh by striking them with a tomahawk and that the said Darryn Stokes would use the knife if the said Bradley Rex Lambert did not succeed in killing the said Anthony James McHugh and Lehman Joseph McHugh with the tomahawk.
(ii)    Pursuant to the above agreement he left in a car with Bradley Rex Lambert, whilst armed with a knife and whilst the said Bradley Rex Lambert was armed with a tomahawk.
(iii)   He then travelled in a car to 4 Arnold Street, Penguin with Bradley Rex Lambert.
(iv)   By either entering 4 Arnold Street with Bradley Rex Lambert or waiting outside whilst the said Bradley Rex Lambert entered 4 Arnold Street to carry out the agreement particularised in point 1.
3By forming a common intention with Bradley Rex Lambert to prosecute an unlawful purpose with one and other [sic] namely
(a)     unlawfully enter 4 Arnold Street, Penguin armed with a tomahawk and/or knife whilst knowing Anthony James McHugh and Lehman Joseph McHugh would be present at the house; and
(b)    to kill the said Anthony James McHugh and Lehman Joseph McHugh; and/or
(c)     to kill the said Anthony James McHugh and Lehman Joseph McHugh if they recognised either Darryn Stokes or Bradley Lambert in the course of carrying out the unlawful purpose; and/or
(d)    assault, and/or rob, and/or steal from the said Anthony James McHugh and Lehman Joseph McHugh;

and in the prosecution of the unlawful purpose Anthony James McHugh and Lehman Joseph McHugh were murdered and their murders were a probable consequence of the prosecution of the said unlawful purpose.
Particulars
Bradley Rex Lambert murdered Lehman Joseph McHugh and Anthony James McHugh in one or more of the following ways.
1By striking Lehman Joseph McHugh and Anthony James McHugh about the head with a tomahawk either by himself and/or in combination with Darryn Stokes and at the time of the striking of the said Lehman Joseph McHugh and Anthony James McHugh, the said Bradley Rex Lambert had one of the states of mind set out in Section 157(a) to (c) of the Criminal Code.
2By forming a common intention with Darryn Stokes to prosecute an unlawful purpose with one another namely:
(a)to travel to 4 Arnold Street together and unlawfully enter 4 Arnold Street whilst armed with a tomahawk and/or knife, whilst knowing Anthony James McHugh and Lehman Joseph McHugh would be present at the house; and
(b)to kill the said Anthony James McHugh and Lehman Joseph McHugh; and/or
(c)to kill the said Anthony James McHugh and Lehman Joseph McHugh if they recognised either Darryn Stokes or Bradley Lambert in the course of carrying out the unlawful purpose; and/or
(d)assault and/or rob and/or steal from the said Anthony James McHugh and Lehman Joseph McHugh;

and in the prosecution of the unlawful purpose Anthony James McHugh and Lehman Joseph McHugh were murdered and their murders were a probable consequence of the prosecution of the said unlawful purpose."

Basis of appeals

Each appellant adopts the critique advanced by the other. Each chooses to select a portion of the evidence proffered by the prosecution and contends that either the learned trial judge failed to enhance any discrediting of that evidence, or advance a reason why such evidence should be rejected. Four lines of attack were advanced.

The first was that Kylie Stokes, the sister of one appellant and the former partner of the other, was not a credible witness since she had encouraged the appellants to undertake the enterprise, stood to gain by assisting the prosecution, and was afraid of Lambert. The learned trial judge had given the jury an "accomplice" direction and no specific claim of error is made on the appeal.

The second line is that the evidence of Corey Stokes was no more than "echo" of his mother, for whom he would lie, and that any inconsistencies were but a product of fabrication. Consistency likewise can be claimed as proof of fabrication.

The third basis of critique involves the untenable proposition that because the event involved horrific killings, failed as a commercial venture and involved the use of the vehicle of one of the actors, it was unplanned. Many criminal enterprises are less than successful, result in unexpected consequences, and lack the hallmarks of competent planning. But they cannot be said to be "unplanned". On the version provided by both appellants, a plan to go to premises was discussed on the day of the killings, and each knew the other to be armed.

The fourth proposition is that death was not a probable consequence of the plan of burglary and stealing. But it was open for Stokes to attempt a theft at a time when he knew the premises to be vacant. He knew the occupants. He knew the son to be present on that evening. The jury was entitled to infer that a search by two armed men for hidden or secreted money was likely to awaken the occupants. The jury was entitled to conclude that detection would result in violence.

The written submissions of each appellant set out a series of criticisms of the evidence of Kylie and Corey Stokes, and those criticisms were elevated to failures by the learned trial judge to properly put the respective defences. The written submissions repeat the arguments put in the closing speeches of each counsel and complain of the failure by the learned trial judge to repeat those closing speeches, or at least incorporate them into his summing up.

The Code, s371(j), provides:

"(j) after all the evidence and all addresses to the jury have been concluded the judge shall instruct the jury as to the law applicable to the case, with such observations upon the evidence as the judge may think fit to make; and the jury may then, if they so desire, retire to some place set apart for that purpose, to consider their verdict."

The learned trial judge was required to summarise the respective cases for the prosecution and defence, RPS v R (2000) 199 CLR 620. The evidence of Kylie and Corey Stokes was relevant and cogent, but it cannot be said that the prosecution case was dependent upon acceptance of that evidence. The evidence of Robbie Breadmore, also the subject of criticism, may have had greater import on the identification of the actual killer as Lambert because of the presence of blood on his clothing and the burning of those clothes.

But significantly the accounts of Kylie and Corey Stokes and Breadmore were independently corroborated. The knife was found in the bush and the axe recovered from the Leven River. The presence of blood and the burning of the clothes was consistent with the information originally provided by the witnesses. The account of Lambert about swapping the clothing with Stokes before burning would itself give credence to any contrary version. Both appellants had lied to police and given Kylie Stokes as an alibi, a matter demonstrably false. The admissions of each appellant in turn corroborated the accounts of Kylie Stokes and her son given soon after the killings and lessened any possibility of concoction. A considerable amount of money was later found secreted in the house.

The learned trial judge provided the jury with a detailed memorandum of the law and properly directed the jury as to the law. He had invited counsel to seek any redirections or identify matters overlooked (Crampton v R (200) 176 ALR 369) and no objection was raised as to any failure to properly state the defence position (Le Fontainev R (1976) 136 CLR 62). He was not required to deal with in minute detail every comment made or contention advanced by counsel (Brown v R [1972] Tas SR 57; R v Ali (1981) 6 A Crim R 161).

It is not necessary to repeat the summing up in detail. It dealt fully with the cases as advanced on behalf of each appellant. It is wrong to state that the "summing up of the defence cases was exceptionally brief".

The transcript of the summing up runs to some 86 pages. The summing up was given on 3 October, immediately following the closing address of Ms Jago, counsel for Lambert, and on the same day as that of Mr Richardson, counsel for Stokes. Mr Coates SC had concluded his address on 29 September, some four days previous. His Honour had interrupted his summing up on more than one occasion to entertain submissions from counsel as to additional or varied directions. The learned trial judge continued with his summing up on 4 October.

Contents of summing up

The following extracts from the summing up are not exhaustive, but provide examples of the manner in which the learned trial judge correctly and fairly dealt with the respective defence cases. The extracts are, nevertheless, more detailed than the references provided in the appellants' written submissions:

"Each Counsel have addressed you. They're all experienced capable practitioners and you've heard what they've said. What they say of course is not evidence. You will of course have, as I say, listened carefully to what they've said and you'll give their comments such weight as you think appropriate. Now as Miss Jago said, the accused Lambert did not give evidence. He is under no obligation at law to do so. He's entitled to remain silent and require the Prosecution to prove its case beyond a reasonable doubt. It's the right of every accused person not to give evidence. And the failure to do so cannot fill gaps in the Prosecution case. While you've been deprived of the opportunity of hearing his version tested in cross-examination, you must not assume that he's guilty because he's not given evidence. And the mere fact that he does not do so proves nothing. One thing or the other. One way or the other. It does nothing to establish his guilt on the one hand. On the one hand rather it does nothing to explain rebut or contradict the evidence presented by the Prosecution. Now I've already said that he doesn't need to give evidence or call people to support his case. Mr Stokes did give evidence and that he's done so you must not assume that he has taken it upon himself a responsibility to prove his innocence. Prosecution has that burden of proving each of the elements beyond a reasonable doubt. But whereas here there is Defence evidence, usually one of three possible conclusions is suggested. The first one, you may think that the Defence evidence, and in this case from Mr Stokes, is credible and reliable and that it provides a satisfying answer to the Prosecution's case. And if so, your verdict in each case would be not guilty. Or you may think that although the Defence evidence was not convincing, it leaves you in a state of reasonable doubt as to what the true position was. If so, your verdict would be not guilty. Or you may think that the Defence evidence should not be accepted. However, if that is your view, be careful not to jump from that view to an automatic conclusion of guilt. If you find the Defence evidence unconvincing, set it to one side and go back to the rest of the evidence and ask yourself whether, on a consideration of such evidence as you do accept, you are satisfied beyond a reasonable doubt that the Prosecution has reached each of the elements of the offences in question. Remember I said that we have two trials going on together here. You'll recall I told you how to approach the fact that Mr Lambert did not give evidence and Mr Stokes did. While what Mr Stokes said while giving his evidence may be used not only for or against him, but also for or against Mr Lambert, that is, the evidence he gave in the courtroom. However on the trial of Lambert, to the extent to which the evidence of Stokes implicates Lambert in the offences, you must look at that evidence with great care. There is a danger that in implicating Mr Lambert, Mr Stokes may have been concerned to shift the blame. Now this warning that I give you is restricted only to the evidence, - those parts of his evidence which you might think incriminate Mr Lambert in the offences. It doesn't apply to the evidence as it relates to his own case, on this trial if you can follow that. So where he gives evidence in the witness box against Mr Lambert, you look at that carefully, for obvious reasons that he may well be trying to shift the blame, but not where he gives evidence which does not necessarily implicate Mr Lambert. Now these two accused have been tried together, as I said, you're hearing two cases at once, you must approach the case against each accused as a completely separate trial, and you use only the evidence which I tell you is admissible against him on his own trial. What one accused says outside the courtroom, is no evidence at all against the other, that is for the common sense reason that people often try to get out of a charge, by laying the blame on someone else behind their back. What one accused tells you, as I said, on his oath in this courtroom is evidence against the other, because it's not said behind his back and it can be challenged, as it was challenged. Now there's some evidence against one and not the other, and some evidence against both in this particular trial obviously, and you've already heard reference to some of those parts of the evidence. What Mr Stokes said, in his record of interview or records of interview with the police is not evidence against Mr Lambert and vice versa. There is an exception to that, where it could be said that perhaps they have told a, and the words 'common lie' has been used, for instance the evidence of initially said to police each of them about not leaving home on the night of the 17^th of September. There was other evidence that each of them told police that this Mr Sharman might have been a person who was possibly involved. You can use that evidence to, - as evidence that they had some authority in each other to pursue a common purpose, they had in fact, some joint purpose in telling those particular pieces of information to police. Now those pieces of evidence as I see it, are the only pieces of evidence out of the courtroom that would be admissible, one against the other. Now it's important to consider the guilt of each separate, as I said, if you find one guilty, it doesn't mean that you have to find the other guilty as well and conversely.

…
The first one that I want to talk about is the evidence of Kylie and Corey Stokes. This is a matter, as I said, which has been referred to. It is suggested that these two persons may be involved in some way in these offences, Corey by being present at some conversations, and I don't think anyone has mentioned it, but there is evidence of him – Mr Richardson might have – of taking Mr Lambert's watch at some stage. And of course there is some evidence of suggestions being made by Kylie Stokes shortly prior to the two accused men leaving the house on the evening of the 17^thof September. Now of course, I am conscious that she denied those allegations, but anyway. You should approach your assessment of Kylie and Corey Stokes with caution. A person who has been involved in some way with an offence, may have reasons of self interest to lie or falsely implicate others in the commission of the offences. The evidence of such persons, is of its nature, potentially unreliable, and therefore necessary for you to scrutinise – it is therefore necessary for you to scrutinise the evidence carefully before acting on it. Kylie at least, having been involved in the discussions prior to the offences is likely, you might think, to be a person of bad character. For this reason, her evidence, and Corey's too, may be unreliable and untrustworthy. Moreover at least, Kylie may have sought to justify her conduct, or at least to minimise her involvement by shifting the blame wholly or partly to others. Perhaps each has sought to implicate the accused men, and to give untruthful evidence, because some gain might be achieved by doing that. Whilst it is possible to identify some reasons which they may have for giving false evidence, there may be other reasons for giving false evidence, which are known only to them. Their evidence, if not truthful, has an inherent danger. If it is false, in implicating the accused, it is nevertheless – it nevertheless may have a seeming plausibility about it, because they are familiar at least, with some details of the crimes. The defence points to this evidence in support of the proposition that Kylie and Corey are not telling the truth of course. On the other hand, the State says that they are truthful and reliable witnesses, and relies on their evidence of what they said – was said, prior to Lambert and Stokes leaving for Arnold Street, and that what Mr Lambert said on his return. They also give evidence of course, about the weapons, and what Kylie said of what Lambert was wearing on his return, and what he said on his return. In view of what I – in view of what I have said to you, it would be dangerous to convict the accused on the evidence of Kylie and Corey Stokes, unless you find that their evidence is supported in a material way, by independent evidence implicating the accused in these offences. Now, as Mr Coates said to you, he says there is such evidence. Such independent evidence, corroborative evidence from an independent source, which is capable of supporting their evidence in a material way. It's a matter for you, of course, whether you accept that evidence, but if you do, it's a matter for you whether you think it supports Kylie and Corey Stokes' evidence in this way. That independent evidence is this; and in relation to Mr Stokes, includes the evidence of, - if you accept it, Mr Stokes' lies to police, and you've had those enumerated, pointed to, the admissions he made about what was said at Allambie Crescent, prior to leaving. The evidence of the tomahawk and the knife. The talk of killing the McHughs if identified, and Mr Stokes admits that that was said. Conversations concerning the knife with the loose handle. Mr Breadmore's evidence confirms a change, if you accept it, concerns a change in Lambert's clothing that was noticed, which is evidence again, of independent evidence outside what Kylie and Corey Stokes say. The actual scene, that they did go to 4 Arnold St. Kylie said it was a planned killing, you could find that there was no search for money on the evidence, and you could conclude from the scene that that's precisely what it was, you could. She said that she was told the knife was thrown under a bush, and in fact it was found under a bush. Against Mr Lambert, you could find evidence independent of the evidence of Kylie and Corey Stokes, that he lied to police about where he'd been that night. That ultimately that he admitted to police that he was there, and ultimately he admitted that he had taken a weapon as in fact, Kylie and Corey Stokes said he had. The evidence of Mr Breadmore is independent evidence outside Kylie and Corey Stokes' evidence, which if you accept it, could be taken to confirm the proposition that Mr Lambert, for some reason or other, changed his clothing. There is the video evidence of Mr Stokes trying Mr Lambert's clothes on, which is independent evidence to support a, - well a change in clothes, and the State would say, an inability of Mr Stokes to do that. In fact it was a lie. I've been asked to give you a direction about motive. This direction is in relation to each of the accused. If you're satisfied on the evidence admissible against either accused, that they have a motive to commit the crimes charged, that is a piece of evidence, along with the other evidence that you may use to show that the accused committed the crimes, it's just a piece of evidence. Although by itself, without other evidence, it does not show that the accused committed these crimes. However, you should take care before giving any great weight to motive because many people who have powerful motives to commit crime, never do so. As I've said, you'll consider it along with all the other evidence to show if the accused committed the crime. Remember use the evidence of motive with great care and consider the evidence admissible only against each accused separately on his own trial. The next specific direction I need to give you is, concerns evidence of violence. Evidence of allegations of violence against Mr Lambert. It's very important direction this one. It relates, obviously, to the trial of Mr Lambert. You've evidence that he may have committed a number of assaults on Kylie Stokes and threatened other persons. Whether you accept that evidence is a matter for you, but I direct you that as a matter of law, that the sole permissible use of that evidence is that it goes to the issue of whether or not Kylie Stokes had a motive to lie about his involvement. That's the use of it. I'm not suggesting that she has that motive, that's a matter for you but my direction to you is that it would be quite wrong to use that evidence to show that Lambert has a tendency to commit the crimes of which he's charged.
…
The accused Stokes, you will recall, gave evidence of which was not challenged by the State that he had no prior convictions for offences involving violence. It's agreed that I direct you that when considering the case against Stokes and the evidence admissible against him that you can accept that. That, in other words, he has no prior history of violence.
…
This is a matter for you, but it seems to me, you could be satisfied beyond a reasonable doubt that whoever struck the fatal blow or blows, committed a voluntary and intentional act. It is a matter for you obviously, in the sense that the acts were intentionally done."

His Honour then proceeded to give directions as to the ingredients of the crime of murder, and continued:

"… the State need to prove concerning the mental element of murder, when you are dealing with this allegation of instigation. Obviously, that is an allegation against Mr Stokes only, and that evidence against him would include the evidence of Kylie and Corey Stokes as to what was said prior to the leaving for the McHugh's residence, going to the deceased's home, entering the home, or remaining close by while Bradley Lambert went in to carry out the agreement. Driving away from the scene of the murders afterwards, and attending at Breadmore's house with Lambert, throwing the tomahawk away en route. Throwing the knife away. You will consider the evidence he gave in the witness box, and what was in his interview. I will come to deal with that in some detail later. But that is the evidence basically against Mr Stokes, so far as instigation is concerned. And if you are satisfied beyond a reasonable doubt that Stokes instigated Lambert to murder within the terms I've outlined. It's a matter for you whether you believe that at some stage he told Lambert to cease, not to go on. If Stokes instigated Lambert to murder the McHugh's or one of them, and he proceeded with that, Stokes remains criminally liable for the murders. Unless he countermanded or withdrew his instigation with such action as he could reasonably take to undo the effect of his previous instigation and participation. You should ask yourselves what action, if any, did Stokes take to undo the effect of his previous instigation which you consider he ought reasonably to have taken.
…
Obviously if you don't accept the evidence of Kylie Stokes or Corey Stokes about what they say was said, you may not be satisfied beyond a reasonable doubt, about what the common intention was. And what the plan was, but remember you can infer a plan from all the circumstances. If you're not satisfied beyond doubt that murder was a probable consequence, and I'll examine this in a moment, you will not convict either of murder on that basis. The evidence against Mr Lambert in relation to common purpose seems to me to be the evidence of what Kylie and Corey Stokes said they said, prior to leaving, what he Mr Lambert told the police, what Mr Stokes said in the witness box the plan was to steal. The fact that he, Mr Lambert, took a tomahawk, if you accept the evidence of Kylie and Corey Stokes, and I think the evidence of Mr Stokes, what Kylie says Mr Lambert said afterwards as to what happened. What Corey said he overheard him say afterwards. The evidence of Mr Breadmore that he burnt his clothes, and later as against Mr Lambert, that Mr Lambert rang or at least had a phone conversation with Mr Breadmore about what he, - Mr Breadmore ought tell the police about whether or not he'd been to his house, you might recall that tape recording. That he gave his watch to Corey Stokes, and that Corey said, that he Mr Lambert had said 'You'd better not be stuffing me around', before they left to go. That is evidence or a piece of evidence about that.
…
That's the State's case at its highest. Obviously the accused say no, no, that wasn't the plan at all. And if you're not satisfied beyond a reasonable doubt about what the plan was, obviously then you'll have trouble going down the line to probable consequence. If the plan was only to steal you may, obviously, be not satisfied beyond a reasonable doubt that death with the attendant states of mind was a probable consequence. I hope you understand that as I've taken you through it. And I'll go back to it with the memo later. Now I remind you that we have two separate trials going on. And I want to remind you of some evidence which seems to me to be important. And the evidence against Mr Stokes is evidence I want to look at now. Obviously, I'm not going to deal with this evidence in minute detail. Some I will refer to specifically, but in general it seems to me important evidence against Mr Stokes on behalf of the State is that what Kylie said he said to her in the weeks prior to the murders. We're dealing with the case against Mr Stokes where he gave evidence on his trial which is admissible against him, not against Mr Lambert. You will recall that Kylie said that he'd said to her in the weeks before that he'd talked about this money. No evidence Mr Lambert was about at that time. The evidence of Mr Walter Williams at the suggestions that they rob is obviously evidence against Mr Stokes, not Lambert, but it's evidence against Stokes."

The learned trial judge then reminded the jury of extracts from the record of interview of Stokes in which he denied any plan which involved killing and that it was Lambert who had mentioned that possibility. He gave a lies direction, adding:

"… not only do the State say here, that well, his credibility becomes a problem if he admits to having lied. They also say, well, you can use the lies as some stepping stone on the way to being satisfied beyond a reasonable doubt of his guilt. They say because the lies were told to avoid implication, or because he had a realisation of his possible guilt. I will come back to it later, and identify some of the evidence that is said falls into that category. Remember of course, at all times, as Mr Richardson told you, there is [sic] many reasons why people lie. They can be confused, they panic, they can be protecting somebody else, all sorts of motivations which aren't anything to do with guilt. It could be possible so far as lying is concerned."

The following five pages of the transcript deal with the recounting of the evidence given by the appellant Stokes at trial. It could not be said that there was a failure to fully deal with the account provided to the jury by Stokes.

On the following day, his Honour dealt with the issues of common purpose and probable consequence. He again gave a direction, favourable to the appellants, as to the permitted use of lies and the dangers of circular reasoning. He then left, as a possible verdict, a finding of manslaughter, an option not unfavourable to the defence (Buttle and Wade (supra)). In dealing with the issues raised by the prosecution in its cross-examination of Stokes, his Honour restated his warning about the permitted use of lies, stating:

"Now, before you can take – before you can use this evidence against Mr Stokes, you must be satisfied of a number of matters. And unless you are satisfied of all these matters you can't use the evidence against Mr Stokes as being evidence probative of his guilt. Obviously, if a witness – anyone lies, I would have thought that credibility is an issue anyway. It is what you can do with that evidence in addition, to simply not believing them I suppose, or having some difficulty in believing them that is the approach here. First, you must be satisfied that Stokes has told a deliberate untruth, a deliberate untruth. Now in some cases he had admitted to doing that. There is a difference between the mere rejection of a person's account of events and the finding that a person has lied. In many cases where there appears to be a departure from the truth, it may not be possible to say that as deliberate lie has been told. The accused may have been confused, there may be other reasons which would prevent him, prevent you from finding that he had deliberately told an untruth. He may be confused. He may be panicked. It's a difficult circumstance being interrogated by police. Giving evidence in a court room. They're all stressful situations. Secondly, you must be satisfied that the lie is concerned with some circumstance or event connected with the offences. So they must be linked to the offences in some way. If you tell a lie about the colour of a car which has got nothing to do with the offence, it may be completely irrelevant. So you can only use a lie against Mr Stokes if you're satisfied having regard to those circumstances and events that it reveals knowledge of the offences or some aspect of them. Thirdly, you must be satisfied that the lie was told because the accused knew that the truth of the matter would implicate him in the commission of the offences and not of some lesser offence. In other words, it's really got something to do with the allegations. The accused must be lying because he's conscious that truth might convict him. There may be reasons for the lie apart from the realisation of guilt. People sometimes have an innocent explanation for lying. For example, out of shame, out of a wish to conceal embarrassing or disgraceful behaviour. They may be panicked or confused. Or he might be protecting someone else. These could all be explanations for the telling of a lie, if you found that some of these were lies. Finally, in this case the State says that the alleged lies by Mr Stokes are a critical part of the evidence against him. Before you can use those lies against him, you must be satisfied beyond a reasonable doubt not only that he did lie, but also that he lied because he realised that the truth would implicate him in the offences. Now I'm not going to take you through each and every lie that's been admitted to have been told, but there are a number of specific exchanges and as I said, before you can use any lies you must be satisfied. This is against Mr Stokes, you must be satisfied beyond a reasonable doubt the evidence of this lie or in this case that he's admitted to it."

Before the learned trial judge dealt with the evidence of Kylie Stokes and his recounting of her evidence-in-chief and cross-examination, he told the jury:

"… but Kylie Stokes of course, is the sister of Darryn Stokes, former partner of Bradley Lambert. You've heard criticism of their evidence from learned Counsel, it's for you what you make of that criticism. If you accept their evidence, or parts of it, that evidence is obviously relevant to this question of common intention, what was agreed, and probable consequence, - what was the likely result. Just let me examine what Kylie Stokes said in part, and again I'll refer to part of the evidence, you'll obviously have recollections of what she said."

He dealt with the evidence of Corey Stokes, adding:
"So, and later on he gives evidence that Mr Lambert gave him his watch you might recall. Gave him his watch. Now both were cross-examined. And I'll deal with their cross-examination then we'll take a bit of a break. Kylie admitted that she was fearful of Lambert and the fact, that fact, if you accept it, may be some motivation to be untruthful or to exaggerate or to lie about his involvement. You might think that's a matter for you. She's admitted that she's lied. She was being cross-examined by Mr Richardson. She admitted that she maintained a somewhat at least outwardly normal relationship despite her fears. She was aware that Darryn had suggested that he and Lambert would steal the money. She denied that she was a supporter of that proposition. She denied that she needed money to go to Queensland. She was pressed on this matter and a number of others, but she was pressed on this matter."

Following a recounting of further portions of her evidence, including cross-examination, his Honour summarised the approach to the evidence in the following terms:
"She denied that her reaction was that she was interested in the money. She was criticised for allowing conversations of this type to go on in the presence of her son, well you know, you make of that what you will I suppose, that's the evidence, you make of it what you will. She agreed that her car was used, she admitted lying to the police, and admitted encouraging her son to do the same. She conceded that Lambert said to her before they left, that no-one would be harmed, this is to Mr Richardson. She said, that afterwards, Lambert was shaking and admitted the killings. She was cross-examined about that, you remember the evidence, I refer to when she was questioned by Mr Coates about that. She said that she had lied to police about – to protect Lambert, even though of course the suggestion was that she was somewhat fearful of him. She denied that she was lying because Stokes had threatened her. She told us of the assaults – committed upon her. Now remember, this evidence doesn't go, as I said to you before, to show any tendency to commit the crimes alleged, it doesn't go anywhere near that at all. It – it, it as I said to you yesterday, it's use is, that you may have some motivation for exaggerating his involvement to escape the relationship in some way. Um, she said she went to Queensland with him because she still loved him, you remember that. Incidents occurred there, that saw her ultimately return, and leading up to the 24^th of December when apparently she made a complaint to the police about some other allegation, and Lambert was arrested. She maintained her untruthful position that she had no knowledge of what had happened, but began to use Mr Richardson's word, to 'hint' that Lambert's involvement, you might remember that exchange. She denied lying to police because of her involvement, and she admitted encouraging the two men to go off and steal the money, but not to kill or hurt. Cross-examination to Ms Jago, she admitted that Lambert had taunted her over an affair, you might recall that exchange. Motivation, you might think for her to exaggerate his involvement. She denied that she had suggested that Lambert go with Stokes to get the money. She denied that she made up the allegation that Lambert had threatened her and she denied, that Lambert had said Darryn killed them. Of course, that is Lambert's case of course. And it was put to her that in fact, that is what he said, and she said no. She maintained that he admitted to her that he killed them. She maintained that he disposed of his boots, you remember the evidence about that. The way that he said he had. It was put to her that none of her evidence about the conversations was true, and she said it was. Now, to complete this part, I am going to refer to some cross-examination of Corey Stokes, that you might think are interesting – all a matter for you of course, and you will recall evidence of – his evidence. About parts I refer to don't mean to exclude those others. He admitted that he'd lie to help his mother. Mr Richardson asked him that and he admitted dropping hints to the police on the 24^th of December about Mr Lambert's involvement. He denied that he and his mother had discussed what they would tell the police and you've heard comments about that. That their disclosures to police were remarkably similar you might think. Well it's a matter for you what you make of that. He maintained that both the accused said that they could open up a bank account and hide the money in the spare tyre of a car. He said the spare tyre idea was Lambert's idea. He said he heard some things said that his mother didn't speak of. And one of those he said was when they said that the only way to do it is to kill them, get the money and go. In some explanation he said perhaps his mother didn't believe that they would go on with it. So whether he was trying to protect her in that I don't know. He'd not mentioned someone wearing a red top before. But he did say that in evidence, and you might think. The suggestion always is if someone hasn't said something before that they're making it up on the spot, that's what the suggestion is. It's a matter for you whether you think that. To Miss Jago he maintained that Lambert had threatened him and that he'd heard a discussion to kill people. And that he was not saying what he was saying because his mother had put him up to it. Now obviously that evidence is important. Obviously it is. It's up to you what you make of it. The State say of course that it's evidence of a plan to rob and murder. In relation to the question of common purpose, it's relevant as to what is a probable consequence. The State's case is the probable consequence is death, murder. The accused say no that's not right at all. If you don't accept the evidence of Kylie and Corey Stokes of course. You may not be satisfied beyond a reasonable doubt of any planned intention to kill at all, any common plan to kill at all. If you don't accept their evidence. If you think it's so unreliable you don't accept it. You may not be satisfied beyond a reasonable doubt about it."

There was evidence that a window in the front door of the house had been broken. The Crown contended that the appellants had broken it to gain entry. There was evidence that the investigating police found no sign of any search for the money having occurred in the house. There was evidence that Anthony McHugh had been struck some 73 times, and that his wounds could have been caused by a tomahawk. There was evidence that Lehman McHugh had been killed in his bed, having been struck at least 15 times, and that his wounds also could have been caused by a tomahawk. The Crown contended that both men were deliberately killed; that both appellants formed the intention to kill them before arriving at the house; and that they took no steps to disguise themselves or keep their entry quiet because they intended that their victims would not be alive to incriminate them.

The appellant Stokes has a sister named Kylie Stokes. She and her son Corey Stokes both gave evidence for the Crown. At the time of the killings, Kylie Stokes was cohabiting with the appellant Lambert. They and Corey Stokes were staying temporarily with the appellant Stokes at his home. Lambert, Kylie Stokes and Corey Stokes were planning to travel to Queensland some days after the night in question.

Kylie Stokes gave evidence of a discussion on the night in question, to the following effect. The appellant Stokes had previously told her and Lambert that there was a large sum of money at the McHugh residence. The two men discussed going and getting the money. Stokes said that, to get that money, they would have to kill the McHughs. Lambert was keen to go. Stokes said that Lambert would have to kill them, and that "the old man would have to go first" so that what he had would pass to his son, and then to Stokes. Stokes armed himself with a knife. Lambert armed himself with a tomahawk. The two appellants left for a few hours. When they returned, Lambert had different clothes on. Lambert said that he had changed clothes at his cousin Robbie Breadmore's house. He also said he "did it". The next day Lambert said that, after leaving the McHughs' house, he went to Breadmore's house, where he burnt his clothes and had a shower. He said that he and Stokes had thrown the tomahawk into a river. The appellants told Ms Stokes to say that they had watched the football, gone to bed, and not left the house on the night in question.

Corey Stokes gave similar evidence to that of his mother. He said the appellant Stokes had told him that he had left a knife in the bush. Mr Breadmore gave evidence for the Crown. He said that the appellant turned up at his place; that Lambert had blood on his clothes; and that Lambert had a shower and burnt his clothes before leaving. There was evidence that the tomahawk was found in the Leven River near the bridge at Ulverstone.

The Crown contended that both appellants had lied to the police, and that their lies indicated that they had colluded together to create an alibi for each other, and to blame others. There was evidence of Stokes telling the police that he had stayed home all night on the night in question, watching football with Lambert and Kylie Stokes; that he did not know Lehman McHugh had money in the house; that no car left his residence; that people named Sharman might have been responsible for the murders; and that he did not discuss money with Lambert on the evening in question. There was evidence of Lambert telling the police that he had watched football on the night of the murder with Stokes and his sister, and suggesting that the Sharmans might have been responsible for the murders.

There was evidence of a police interview on 29 December 2004 when Stokes admitted his presence at the time of the killings. He said that he and Lambert had discussed getting the money from the house; that they drove to Penguin together; that Lambert smashed the door; that he (Stokes) had a knife, and meant to go inside, but could not; that Lambert killed the two men; that Lambert had a tomahawk; that they did not search for money; that Lambert told him that "the young one wouldn't fucking die"; that the tomahawk was thrown off the Leven River bridge; that they went to Breadmore's place; that they told Breadmore that Lambert had been in a fight; and that there had been a discussion before they went to Penguin about the people in the house dying. Referring to a conversation with Lambert before the killings, he told the police, "Bradley said, if it comes to it, if it comes to it, if it happens they'll die." He said Lambert had given him a knife and said, "Take this and if I don't, if something happens and they have to be killed and when I hit 'em and it doesn't work, you finish it." He agreed with a police officer that he and Lambert "planned to go and rob the house". When asked by a police officer whether he accepted that two people might have to be killed, he responded, "… yeah I suppose I'll have to …". A little later in the interview he agreed that he knew that it was a very real prospect that the men would be killed. A little later he agreed that he was well aware of the fact that the two men were possibly going to die. He said, "I couldn't go through with any of it so I stayed outside." He admitted that he had thrown the knife under a bush near the scene.

There was evidence of admissions made by Lambert in his police interview on 31 December 2004. He told the police that Stokes "had been talking about going to bump, like going to rob these two blokes over in Penguin." Early in the interview, he said that Stokes went into the house while he stayed outside; that Stokes came back out and asked him to come in and help him find where the money was; that he saw a fellow lying in a corner of a bedroom with his head facing down; that he saw Stokes go over and hit him with the tomahawk; that he ran back to the door; that he put the knife under a bush; that he waited ten or twenty minutes for Stokes to return; that they went to Breadmore's house; that he changed into Stokes' bloodstained clothes before going inside; and that he had a shower and burnt those clothes there. The interviewing officers took him through his version of events again, slowly and in detail. He told them that Stokes said there was a lot of cash at the house; that he had thought that he was going into the house to bash the men up; that Stokes took the tomahawk to the house; that he took the knife; that they were going to knock the men out and look for the money; that he thought Stokes would go in first to knock the men out, and that they would then look for the money; that Stokes told him to wait at the front door, and said that he would go in and knock the men out; that Stokes entered the house by hitting the front door with the tomahawk; that Stokes threw the tomahawk over the bridge; that he and Stokes changed into each other's clothes outside Breadmore's house before going inside; and that he told Kylie Stokes, "We did it. Darryn murdered 'em." There was a discussion with one of the police officers about the probable consequences of knocking out an 84 year old man. Lambert said that he did not think about the possibility that knocking out the man could kill him, but conceded that that was a probable consequence, and that he had gone to Penguin with full knowledge that there was a strong possibility that one or both of the two individuals would die.

There was evidence that on 3 January 2005 Stokes, in the presence of police officers, attempted to put on the trousers Lambert had been wearing on the night in question, but that they were much too small for him. A videotape of his attempt to put on the trousers was tendered as an exhibit.

The Crown also relied on some of the evidence given by Stokes. He gave evidence that, before he and Lambert set out for Penguin, Kylie Stokes said to Lambert, "If you get recognised Darryn, you're going to have to kill 'em." He said that Lambert replied, "If it has to be done, it will happen." He said that Lambert took a tomahawk and that he took a knife. He said that, at Penguin, Lambert came out of the house with what looked like a lot of blood on him. He said Lambert told him at the scene that the younger man "wouldn't die".

The principal arguments of defence counsel

The principal factual contentions of each appellant were that he had not killed either of the two victims; that the other appellant had killed both of them without instigation; that they had gone to the house in Penguin to steal cash, and only to steal cash; and that there had been no plan for the two men to be deliberately killed with a view to Stokes gaining an inheritance.

There was a certain amount of common ground in the two defence cases. As a result, a number of the principal arguments in favour of verdicts of not guilty were relied upon by both defence counsel. The principal arguments that they had in common were as follows:

·That Kylie Stokes was an unreliable witness, for various reasons, but especially because:
(a)having been involved in the planning of the expedition from the Penguin house, she was an accomplice with an incentive to try to shift blame onto others; and
(b)she had a motive to make false accusations about Lambert (no doubt including false accusations that happened to implicate Stokes) because she feared Lambert and had become hostile to him.

·Corey Stokes was an unreliable witness, especially since his evidence was substantially the same as his mother's, and since there were inconsistencies with his mother's evidence that suggested that their evidence was fabricated.
·Murder was not a probable consequence of the prosecution of the plan to steal cash from the house, especially since:
(a)it was likely that Lehman McHugh would be asleep, and that he would not wake up because he was deaf;
(b)it was likely that Anthony McHugh would be asleep and that he would not wake up because he routinely took sleeping pills; and
(c)the appellants did not contemplate using their weapons to kill or cause serious harm, rather than to frighten.

·Each appellant's lies to the police were consistent with that appellant being innocent, but fearing on reasonable grounds that he might be falsely accused of murders committed by his companion.
·A lack of precautions and planning on the part of the appellants suggested that they went to Penguin intending only to steal, and not to kill.

The principal additional arguments advanced by counsel for Lambert included the following:

·The evidence of bloodstains on Lambert's clothing, whilst consistent with Lambert having been the killer, was equally consistent with Stokes having killed both victims.
·The killing of the two men without any cash being stolen from the house would have benefited Stokes, not Lambert. Therefore it was more likely that Stokes was the killer of both men.
·Stokes knew the layout of the house, and was therefore more likely to have gone inside than Lambert.
·The frenzied nature of the attack on Anthony McHugh, involving 73 tomahawk wounds, suggested that it was more likely to have been committed by Stokes, his former lover, than Lambert.
·Even if Lambert set out from Ulverstone carrying the tomahawk, Stokes could have taken the tomahawk into the house.

The principal additional arguments advanced by counsel for Stokes included the following:

·There was no admissible evidence to suggest that Stokes, rather than Lambert, was the killer. (This was conceded before the jury by senior counsel for the Crown. It followed that Stokes could only be found guilty as an instigator or on the basis of common purpose.)
·Various pieces of evidence pointed to Lambert being the killer of both victims, including the fact that he had blood on his clothes, the fact that he burned his clothes, the fact that he owned the tomahawk, and the fact that no knife wounds were inflicted.
·There was evidence that Anthony McHugh died before his father. If so, Stokes could not have inherited the father's assets, and therefore had no motive for the killings.
·There was evidence that Stokes had suggested stealing Lehman McHugh's money on a number of earlier occasions without suggesting violence. Therefore it was unlikely that he instigated violence, or that violence was a probable consequence of the prosecution of the plan to steal.
·There was evidence that Lambert wore sunglasses on the night in question. It followed that he was unlikely to be recognised by either of the McHughs if they woke up; that there was therefore no need for him to resort to violence to avoid prosecution if he was seen; and that murder was therefore not a probable consequence of the prosecution of the plan to steal.

Other arguments were of course advanced by both defence counsel. In my view I have set out the principal arguments relied upon by them.

The putting of the defence case

I will give details of the things said by the learned trial judge in his summing up that related to the arguments of defence counsel. Since counsel for the applicants emphasised the scattered nature of the comments in question, I will refer to the page numbers in the transcript of the summing up, which extends over 73 pages (901 – 925, 934 - 981).

At 905 the learned trial judge discussed the credibility of Kylie and Corey Stokes. He referred to the evidence that Kylie Stokes had been involved in the making of plans to steal from the McHugh house, and gave the usual direction as to the evidence of an accomplice. He said the following as to the evidence of Ms Stokes and her son:

"Perhaps each has sought to implicate the accused men, and to give untruthful evidence, because some gain might be achieved by doing that. Whilst it is possible to identify some reasons which they may have for giving false evidence, there may be other reasons for giving false evidence, which are known only to them. Their evidence, if not truthful, has an inherent danger. If it is false, in implicating the accused, it is nevertheless – it nevertheless may have a seeming plausibility about it, because they are familiar at least, with some details of the crimes. The defence points to this evidence in support of the proposition that Kylie and Corey are not telling the truth of course."

At 906 – 907, the learned trial judge gave the usual direction as to motive evidence in relation to each appellant. He warned the jury that they should take care before giving any great weight to motive because many people with powerful motives to commit crimes never do so.

At 913, when explaining the provisions of the Criminal Code, s4, as to common purpose, his Honour reminded the jury that the two accused both contended that there was no plan to kill. At 915, his Honour said:

"Obviously if you don't accept the evidence of Kylie Stokes or Corey Stokes about what they say was said, you may not be satisfied beyond a reasonable doubt about what the common intention was. And what the plan was …".

At 917, his Honour again reminded the jury that the two accused both contended that there was no plan to kill. He continued:

"And if you're not satisfied beyond a reasonable doubt about what the plan was, obviously then you'll have trouble going down the line to probable consequence. If the plan was only to steal you may, obviously, be not satisfied beyond a reasonable doubt that death with the attendant states of mind was a probable consequence."

His Honour gave a direction as to lies in accordance with Edwards v R (1993) 178 CLR 113. In the course of that direction he said (at 921):

"Remember of course, at all times, as Mr Richardson [counsel for Stokes] told you, there is [sic]many reasons why people lie. They can be confused, they panic, they can be protecting somebody else, all sorts of motivations which aren't anything to do with guilt. It could be possible so far as lying is concerned."

In the course of summarising Stokes' evidence, his Honour referred to his evidence as to the development of a plan to steal money from the house in Penguin. During that summary, his Honour commented (at 922):

"So as Mr Richardson told you, well, opportunistic, there was no sinister planning in this, it just happened to come about on the night. He gave Mr Lambert the address and Lambert wrote it on his hand. He said he wasn't going to the house and you'd think that with Kylie and Lambert going to Queensland that perhaps Stokes didn't have much interest in the money anyway."

At 923, his Honour reminded the jury of Stokes' evidence to the effect that he knew Lehman McHugh was deaf and that Anthony McHugh took sleeping tablets and would not hear him and Lambert if they entered the house.

At 924, his Honour reminded the jury that, in the course of his cross-examination, Stokes had admitted that he had known the layout of the house.

Later in the summary of Stokes' evidence, at 925, his Honour mentioned evidence that Stokes had gone into the house a second time, as far as the kitchen, and seen Lambert kicking a suitcase. His Honour mentioned at that point that it was Lambert's case that Stokes was "the person involved", ie, the killer.

The learned trial judge provided the jury with a memorandum containing directions of law. At 936, at an early stage in his discussion of that memorandum, he reminded the jury that senior Crown counsel had conceded that there was no admissible evidence that Stokes had wielded the tomahawk or struck the blows. He went on to explain that the case against Stokes was based on instigation and the doctrine of common purpose. His Honour reminded the jury of the Crown's concession again at 965.

In the course of discussing a paragraph in the memorandum relating to common purpose, his Honour said (at 939):

"Now of course the State says that killing was the plan. You know. So that's what they went to do. The defendants [sic] say of course no, that's not right, we didn't intend that to happen at all. That was not, we say, they say, not a probable consequence at all. Never agreed, not likely."

At 952, before reading excerpts from the evidence of Corey Stokes, the learned trial judge said the following to the jury about that witness:

"… and you've heard the criticism of his evidence and you'll obviously take that into account when you're considering it."

At the conclusion of his review of the evidence of that witness, his Honour said the following (at 954):
"Now the evidence has been criticised heavily and obviously you'll take into account that criticism and I'll come to it shortly."

At 957, in the course of discussing the evidence of Kylie Stokes, the learned trial judge said this:

"Kylie admitted that she was fearful of Lambert and the fact, that fact, if you accept it, may be some motivation to be untruthful or to exaggerate or to lie about his involvement. You might think that's a matter for you. She's admitted that she's lied. She was being cross-examined by Mr. Richardson. She admitted that she maintained a somewhat at least outwardly normal relationship despite her fears."

At 958, his Honour said the following about Kylie Stokes:

"And then her history was put to her and you'll recall that she had some convictions. And you'll make of those what you will. They're a fair age. And she apparently on that evidence was content with a plan to rob you might think. Now she admitted receiving some items afterwards from the estate, even though she was aware you might think of the involvement at least to some extent of Lambert and Darryn [Stokes]."

At 959, his Honour reminded the jury of evidence given by Kylie Stokes that she had lied to the police and had encouraged her son to do the same. His Honour went on to remind the jury of evidence she had given of assaults committed upon her by Lambert. He explained that the only relevance of that evidence was that Ms Stokes might have had "some motivation for exaggerating his involvement to escape the relationship in some way." He reminded the jury of evidence of incidents between Lambert and Ms Stokes occurring in Queensland which led up to her making a complaint of assault to the police on 24 December 2004 and Lambert being arrested. He reminded the jury of evidence that she had then begun to hint to the police of Lambert's involvement in the killings. He reminded the jury of evidence that Lambert had taunted her over an affair, and suggested to the jury that that might amount to motivation for her "to exaggerate his involvement".

At 960 his Honour returned to the subject of Corey Stokes' evidence. He reminded the jury of an admission by that witness that he would lie to help his mother, and of an admission in cross-examination that he began dropping hints to the police on 24 December 2004 about Lambert's involvement in the killings. According to the transcript, his Honour continued as follows:

"He denied that he and his mother had discussed what they would tell the police and you've heard comments about that. That their disclosures to police were remarkably similar you might think. Well it's a matter for you what you make of that. … He said he heard some things said that his mother didn't speak of. And one of those he said was when they said that the only way to do it is to kill them, get the money and go. In some explanation he said perhaps his mother didn't believe that they would go on with it. So whether he was trying to protect her in that I don't know. He'd not mentioned someone wearing a red top before. But he did say that in evidence, and you might think - . The suggestion is always if someone hasn't said something before that they're making it up on the spot, that's what the suggestion is. It's a matter for you whether you think that. To Ms Jago he maintained that Lambert had threatened him and that he'd heard a discussion to kill people. And that he was not saying what he was saying because his mother had put him up to it. Now obviously that evidence is important. Obviously it is. It's up to you what you make of it. The State say of course that it's evidence of a plan to rob and murder. In relation to the question of common purpose, it's relevant as to what is a probable consequence. The State's case is the probable consequence is death, murder. The accused say no that's not right at all. If you don't accept the evidence of Kylie and Corey Stokes of course. You may not be satisfied beyond a reasonable doubt of any planned intention to kill at all, any common plan to kill at all. If you don't accept their evidence. If you think it's so unreliable you don't accept it. You may not be satisfied beyond a reasonable doubt about it."

At 964, when discussing the fact that the appellants had taken weapons to Penguin, his Honour reminded the jury of evidence given by Stokes that the weapons were taken in order to scare the McHughs.

At 965, his Honour reminded the jury for a second time that the Crown conceded that there was no admissible evidence that Stokes had inflicted the fatal blows. A little later, he told the jury that it was a matter for them whether they accepted the evidence of Corey and Kylie Stokes that Lambert had the tomahawk.

At 967, the learned trial judge reminded the jury of his accomplice warning. At that point he told them that it would be dangerous to convict on the uncorroborated or unsupported evidence of Kylie and Corey Stokes unless they scrutinised it with great care and, having done so, were satisfied of the truth of the evidence.

At 971, when explaining a passage in the memorandum to the jury relating to the possibility of Lambert being found not guilty of murder but guilty of being an accessory after the fact to murder, the learned trial judge again reminded the jury of the accomplice warning relating to the evidence of Corey and Kylie Stokes.

His Honour's summary of Stokes' factual contentions commenced at 980 and ended at 981. The corresponding summary of Lambert's principal factual contentions appears at 981.

The response of defence counsel to the summing up

Immediately after the learned trial judge had summarised the principal factual contentions of each appellant, he asked defence counsel whether they wanted him to clarify anything or add anything to his summing up. Each defence counsel replied in the negative. There was a little further discussion, as a result of which his Honour took the jury through a list of possible verdicts that appeared in his memorandum. At a later stage, a supplementary direction was given by his Honour as to certain admissions being admissible only against one appellant or the other. However, neither defence counsel sought any supplementary direction to remind the jury of any of his or her arguments.

When a question arises as to whether a summing up has been so defective that a miscarriage of justice has resulted, one relevant consideration is the reaction of defence counsel to the hearing of the portion of the summing up that has been criticised: La Fontaine v R (1976) 136 CLR 62 per Barwick CJ at 72; Lee v Tasmania [2006] TASSC 92 at pars38 – 40. The Crown relies on those cases and contends that the silence of defence counsel should be taken as an indication that they considered that their clients' cases had been adequately put to the jury. Counsel for both appellants submitted that that should not be inferred in this case since the arguments they relied on were referred to at so many different stages during the summing up that it was difficult for them to make an assessment, immediately upon its conclusion, as to whether any important arguments had been missed. I accept that such an assessment would have been very difficult. However defence counsel should not have had any difficulty noticing that the learned trial judge's summaries of their clients' cases covered only their clients' factual contentions, and not their arguments. It is perhaps surprising that no submissions were made about that state of affairs.

The fact that neither defence counsel asked the learned trial judge to summarise their principal arguments is a factor that weighs in favour of the Crown. It suggests that the summing up seemed fair and adequate when it concluded. But that factor is no more than a factor that has to be taken into account in deciding whether the summing up, taken as a whole, was so defective that a miscarriage of justice resulted.

Was the defence case adequately put to the jury?

In a short and simple criminal trial, it might be sufficient for the trial judge, when putting the defence case to the jury, simply to remind the jury of the accused person's principal factual contentions, without reminding them of defence counsel's arguments. This was a three week trial of two accused with the Crown case prosecuted on a number of alternative bases. In my view it would have been preferable for the learned trial judge, in the part of the summing up that he devoted to the putting of the defence cases, to have reminded the jury of defence counsel's principal arguments as well as the appellants' principal factual contentions. That would not have taken long. It would have helped the jury, and it would have been a fair thing to do. But did a miscarriage of justice result from him not doing that?

In my view the learned trial judge adequately put to the jury the principal defence arguments against the contention that the two victims were killed as part of a plan by the appellants for Stokes to receive an inheritance. That contention was based substantially on the evidence of Kylie and Corey Stokes. His Honour repeatedly warned the jury about Ms Stokes' possible reasons to incriminate Lambert, and to exculpate herself, and of the criticisms made by defence counsel of her son's evidence. He also referred to the argument that a lack of precautions and planning suggested that the appellants were intending only to steal, and not that anybody was to be killed.

But, in other respects, I think that the putting of the arguments of defence counsel was inadequate. Whilst his Honour made it clear that it was the case of each appellant that the other was solely responsible for the killings, he said very little as to the arguments advanced by counsel for each appellant as to why the other appellant was more likely to have been the killer. In relation to the proposition that, if the appellants intended only to steal cash from the house, the murder of each victim was not a probable consequence of the prosecution of that purpose, his Honour reminded the jury three times that defence counsel contended that murder was not a probable consequence. However he said almost nothing as to the arguments relied on to support that contention He mentioned once the evidence that the victims were expected to be asleep, and not to wake up because of deafness and the use of sleeping pills, but he did not relate that evidence to any argument. Similarly, he reminded the jury of Stokes' evidence that the tomahawk and the knife were taken to Penguin to scare the McHughs, without relating that piece of evidence to any argument.

For these reasons I think that, in relation to each appeal, the ground relating to the convictions is made out.

The proviso

The Crown relies on the Criminal Code, s402(2). It contends that, even if the learned trial judge did not adequately put the defence case to the jury, "no substantial miscarriage of justice has actually occurred" in relation to either appellant, and that the appeals should therefore be dismissed.

In order to determine whether a substantial miscarriage of justice has actually occurred, this Court must consider the whole of the record of the trial and the fact that the jury returned guilty verdicts; and must also consider whether the evidence properly admitted at trial proved, beyond reasonable doubt, the guilt of both appellants in relation to both charges: Weiss v R (2005) 224 CLR 300 at 317.

In my view the Crown's strongest argument at trial was that each of the deceased was murdered in the prosecution of a common unlawful purpose of the appellants, and that each murder was of such a nature that its commission was a probable consequence of the prosecution of that purpose. Stokes admitted in his evidence that they went to the house for the purpose of stealing cash. Lambert made a similar admission in his police interview. Each admitted that, between them, they were armed with a tomahawk and a knife. Stokes made admissions in both his police interview and his evidence indicating that he contemplated that both men might be killed. Lambert admitted to the police that he had gone to Penguin with full knowledge that there was a strong possibility that one or both of the men would die. On the evidence most favourable to the appellants, this was a domestic burglary during which an intruder was armed with a tomahawk. In such circumstances, a peaceful outcome is far from inevitable. A burglary victim might unexpectedly be awake, might wake up, might get a good look at the intruder, or might even try to fight him. In such a tense situation, the intruder might panic or over-react. An intruder armed with a lethal weapon could use it and inflict fatal injuries, perhaps to overcome resistance, or perhaps to eliminate a risk that the victim would identify him to the police.

Taking into account the whole of the record of the trial including the guilty verdicts, I think that a number of conclusions are inevitable. Having regard to the extent of the injuries to both victims, I think it must be concluded that both men were deliberately killed. Having regard to the admissions of both appellants, I think it must be concluded that no-one but the appellants could have killed them. I think it must also be concluded that both appellants went to the house in Penguin for the purpose of prosecuting a common unlawful purpose – either to steal from the house, or to kill the men so that Stokes could receive an inheritance. If the former purpose was being prosecuted, the killings were no doubt carried out in the prosecution of that purpose, and probable consequences of its prosecution. If the appellants intended only to steal, I think the only rational hypothesis is that the victims were killed in order to facilitate the intended stealing, either to overcome their resistance, or to prevent them from identifying the appellants to the police. In my view, if the appellants' intention was to steal, there is no other likely reason for either of the appellants to have killed either of the deceased. It is true that nothing was stolen, but it would be understandable if the appellants abandoned their plan and simply fled after two horrific killings.

Having regard to the whole record of the trial, but to those matters in particular, I think it should be concluded that the evidence properly admitted at the trial proved, beyond reasonable doubt, the guilt of both appellants in relation to both murder charges.

Counsel for each appellant made a submission to the effect that there is always a miscarriage of justice when a trial judge has inadequately put an accused person's case to a jury. Counsel for Lambert relied on R v Schmahl [1965] VR 745 at 748 – 749, where Winneke CJ held that the defence case had not been properly put to the jury; that that made it dangerous to allow the verdict to stand; and that it was the duty of the Full Court to hold that a miscarriage of justice had occurred. However the trial judge in that case had failed to put the defence case only in the sense that he had not explained to the jury the limited way in which they could use evidence of a prior inconsistent statement by the accused. It by no means follows from that case that, however strong the case against an accused person, a failure to put his or her case adequately to the jury must always result in a miscarriage of justice.

In Weiss (supra) at 317, the High Court said the following:

"… no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt. What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind.
It is unnecessary in this appeal to examine that issue further, or to consider the related question whether some errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of the common form criminal appeal provision with its proviso."

That passage identifies two different kinds of defects in criminal trials, namely a defect resulting in "a significant denial of procedural fairness", and a defect amounting to a "serious breach of the presuppositions of the trial". I think those categories must overlap. I think it is also clear that questions of degree are involved in relation to each type of defect. A denial of procedural fairness will result in a miscarriage of justice only if it is a significant denial. A breach of the presuppositions of the trial will amount to a miscarriage of justice only if it is sufficiently serious. The latter type of irregularity must "go to the root of the proceedings": Wilde v R (1988) 164 CLR 365 per Brennan, Dawson and Toohey JJ at 373. The irregularity would need to be "a fundamental one" or "sufficiently serious to warrant the conclusion that the accused has not had a proper 'trial' at all": R v Hildebrandt (1963) 81 WN (Pt 1) (NSW) 143 at 148; Conway v R (2002) 209 CLR 203 per Kirby J at 241. An unbalanced summing up, in which a jury was not reminded of the accused's arguments, was regarded by the Queensland Court of Appeal as contributing to a significant denial of procedural fairness in R v Zurek [2006] QCA 543.

In this case, the learned trial judge went a long way towards discharging his duty to put the defence case to the jury. He reminded the jury of each appellant's principal factual contentions. He reminded the jury of the most important arguments of defence counsel relating to the primary basis of the Crown case. Having regard to the authorities that I have referred to, I do not think it can be said that the inadequate putting of the defence case was so serious or fundamental a breach of the presuppositions of the trial as to deny the application of s402(2). I accept that such an irregularity in a summing up constitutes a denial of procedural fairness, but in my view the irregularity in this case was not so significant as to have resulted in a substantial miscarriage of justice.

I think it would be appropriate for each appellant to be granted leave to appeal against his convictions, but the convictions must stand.

Appeals against sentences

Convictions for murder should ordinarily result in very long prison sentences. In this case, sentences much longer than the average sentence for murder were called for, because of the following factors:

·Two people were killed.
·Both killings were deliberate.
·Both killings were premeditated. The learned sentencing judge sentenced on the basis that the appellants had planned the killings before setting out from Ulverstone. There is no suggestion that he erred in sentencing on that basis.
·The motive was greed. Both appellants were sentenced on the basis that the murders were committed so that Stokes would receive an inheritance. There is no suggestion that the learned trial judge erred in sentencing on that basis.
·The killings occurred in the course of a home invasion.
·Both men died in horrific and terrifying situations. Both must have been conscious during the attacks, since they both suffered defensive wounds.
·The victims were defenceless men aged 84 and 62.
·There was a lack of mitigating factors. In particular, the appellants showed no remorse, and did not plead guilty.

Both sentences were backdated to 29 December 2004. Lambert was then 28 years old. He will be 56 when he becomes eligible for parole, and 70 at the end of the head sentence. Stokes was 34 years old when sentenced, and will be 62 when he becomes eligible for parole, and 76 at the end of the head sentence. For each man, the head sentence of 42 years is nearly as severe as a sentence of life imprisonment. But, having regard to the factors that I have listed, I do not think a head sentence of life imprisonment would have been manifestly excessive for either of the appellants.

Both appellants contend that the non-parole period of 28 years is manifestly excessive. The intention of parole legislation is "to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence": Power v R (1974) 131 CLR 623 at 629; Deakin v R (1984) 58 ALJR 367. The shortest possible non-parole period is half the period of the head sentence: Sentencing Act 1997, s17(3). The non-parole periods imposed in this case were equal to two thirds of the head sentences. Having regard to the aggravating factors that I have listed, I do not think that 28 years is a manifestly excessive minimum time for either of these appellants to spend in prison.

Conclusion

In each appeal, I would grant leave for the appellant to appeal against his conviction, but I would dismiss the appeal in relation to both conviction and sentence.