Lawrence Michael Duca v The Queen
[2020] VSCA 209
•21 August 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0137
| LAWRENCE MICHAEL DUCA | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, PRIEST and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 20 July 2020 |
| DATE OF JUDGMENT: | 21 August 2020 |
| MEDIUM NEUTRAL CITATION | [2020] VSCA 209 |
| JUDGMENT APPEALED FROM: | [2019] VSC 371 (Taylor J) |
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CRIMINAL LAW – Appeal – Conviction – Criminal procedure – Murder – Statutory murder – Alternative charges – Form of indictment – Common law and statutory murder separately charged – No verdict on common law murder – Guilty verdict on statutory murder – Whether alternative charges – Whether acquittal of common law murder required – Whether open to plead as separate charges – Leave to appeal refused; DPP v Perry (2016) 50 VR 686, R v Ng [2002] VSC 561, LLW v The Queen (2012) 35 VR 372, R v Butcher (1986) VR 46, R v Ryan and Walker (1966) VR 553 considered – Crimes Act 1958 ss 3, 3A, Criminal Procedure Act 2009 ss 159, 166, 239(1) and sch 1.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr O P Holdenson QC | Condello Lawyers |
| For the Respondent | Mr B Kissane QC with Ms E H Ruddle | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
T FORREST JA:
The applicant pleaded not guilty to one charge of common law murder (charge 1) and one charge of murder contrary to s 3A(1) of the Crimes Act 1958 (‘Crimes Act’) (charge 2). On 20 March 2019, the jury returned a verdict of guilty to s 3A murder (colloquially, ‘statutory murder’ or ‘s 3A murder’). The jury had previously indicated that it was unable to return a unanimous verdict on common law murder. The applicant was sentenced to 20 years’ imprisonment with a minimum non-parole period of 16 years.
The grounds of appeal are as follows:
1.The learned trial judge erred in directing the jury that they might return a verdict of guilty on charge 2 on the indictment, charge 2 being an alternative to charge 1 on the indictment, notwithstanding the fact that the jury could not reach a verdict of not guilty on charge 1 on the indictment.
2.The learned trial judge erred in receiving a unanimous verdict of guilty from the jury on charge 2 on the indictment in circumstances where charge 2 was an alternative charge to charge 1 on the indictment and where the jury had not reached a unanimous verdict of not guilty on charge 1 on the indictment.[1]
[1]Emphasis added.
Fundamental to both grounds of appeal is the proposition that charge 2 was available to the jury as a legal alternative to charge 1. The applicant contends that, as charge 2 was so available, the jury could not consider it until they had found the applicant not guilty of charge 1. Only then could they move on to a consideration of charge 2. The respondent contends that, despite the sometimes confusing language employed by all parties, charge 2 is not a legal alternative to charge 1 either statutorily or at common law. The two charges were simply ‘alternative pathways to the same offence’.
It is uncontested that, if charge 2 was a true legal alternative to charge 1, then charge 2 could not be considered unless the jury unanimously found the applicant not guilty of charge 1.[2]
[2]See, eg, R v McCready (1967) VR 325, 329 (Winneke CJ, Adam and Starke JJ); Stanton v The Queen [2003] HCA 29, [24]–[27] (Gleeson CJ, McHugh and Hayne JJ); LLW v The Queen (2012) 35 VR 372, 374–5 [1]–[5], 375–6 [8]–[11], 377 [15]; [2012] VSCA 54 (Maxwell P, Weinberg JA and Williams AJA) (‘LLW’).
Factual history
It will be appreciated that the scope of this appeal is quite narrow. A bare summary of the circumstances of the offending will suffice.
The following factual history is extracted from Taylor J’s reasons for sentence.
·The deceased, Mr Vuong, lived alone in Deer Park and was self-employed as a sewing machinist and masseur. He participated in a Vietnamese community loan scheme. He was known to keep money at home and, at times, loaned money to others with jewellery taken as security.
·The co-offender, Ramos, and the applicant used methamphetamine on the morning of 16 June 2017. They reached an agreement to burgle Mr Vuong’s house. At that stage the agreement did not embrace the use of weapons.
·The applicant travelled to his mother’s house with Ramos. Unbeknown to Ramos, the applicant collected a bag containing a loaded 12-gauge shotgun and spare ammunition. The men then travelled to a rental car company, hired a van, assumed high-visibility clothing, stole licence plates from a parked car, placed them on the hire vehicle, and drove to Mr Vuong’s home.
·
On arrival, both men alighted from the van and approached
Mr Vuong’s front door. Ramos knocked on the door. Before it was opened the applicant produced the loaded shotgun from his bag. Mr Vuong answered the door, apparently saw the shotgun, and attempted to slam the door. Both men then pushed against the door. The prosecution case was that, at that moment, an agreement between the two co-offenders was reached to commit an armed robbery. When the two men succeeded in forcing the door open, the applicant entered the house and fired the shotgun twice in rapid succession at Mr Vuong.
·In total, four shots from the shotgun were fired — two from outside the front door, perhaps accidentally. One shot of this initial volley was said to be fired by each co-offender. The applicant then reloaded his shotgun, entered Mr Vuong’s home, and fired the final two shots, which injured Mr Vuong fatally.
·
Ramos dragged Mr Vuong’s body into the kitchen of his house. The co-offenders searched the house and took items of value. They left the house. Mr Vuong’s body was not found for
10 days. It was established that he died from gunshot wounds to the chest.
The parties’ contentions
Grounds 1 and 2 were argued together. The applicant contended that charge 1 was the ‘principal charge’ and charge 2 was its legal alternative. The applicant cited several examples where charge 2 was described by either the judge or the prosecutor as an ‘alternative charge’.[3] The applicant contended that charge 2 was treated as a separate and distinct charge to charge 1, as opposed to providing a different means of proof to the one allegation of murder. In addition to the language employed, the applicant cited in support of this proposition Director of Public Prosecutions v Perry (‘Perry’).[4]
[3]See below [21]–[22].
[4](2016) 50 VR 686, 699 [45]; [2016] VSCA 152 (Maxwell ACJ, Redlich and Whelan JJA) (‘Perry’).
Charge 1 contained the orthodox elements of common law murder, including the requirement that the applicant, at the time of committing the fatal act, intended to kill or cause really serious injury to his victim. Charge 2 involved different proofs, namely that the accused had agreed with his co-accused to commit an armed robbery and, during the course of that armed robbery, a party to that agreement had committed an act of violence which caused the death of the victim.
The applicant emphasised that the prosecution had sought a verdict of guilty to charge 1 and, in the event that the jury did not agree, had sought ‘in the alternative’ a verdict of guilty on charge 2. In those circumstances, it was said, charge 1 could correctly be described as the ‘principal’ charge and charge 2 the ‘alternative’ charge. The applicant cited LLW v The Queen (‘LLW’)[5] in support of this proposition.
[5]LLW (2012) 35 VR 372, 375 [5], 376 [11], 377 [15] (Maxwell P, Weinberg JA and Williams AJA).
The applicant further submitted that, in addition to the orthodox common law alternative offences (offences that ‘amounted to’, or were included in, the principal offence) and statutory alternative offences, there was a third category of alternative identified in LLW.[6] Even if s 3A was no more than a different means of proving the offence of murder, this indictment with two separate charges fell, so it was submitted, into the third class or category of alternatives identified in LLW.
[6]See ibid 374–5 [4]–[5], 377 [15], 387 [72], [74].
The respondent’s contention was that charge 2 could never be an alternative to charge 1. Charge 2 simply involved a different route by which the one offence of murder could be committed. Assuming this to be correct, no fundamental principle of criminal law was breached in accepting a verdict on charge 2 in the absence of a verdict on charge 1. In support of this argument, the respondent referred to the historical ‘felony murder’ rule, its application in R v Ryan and Walker (‘Ryan and Walker’),[7] and the development of the prosecution practice in a case such as the present of putting two charges on the indictment rather than one. (We deal with this pleading practice in the concluding section of these reasons.)
[7](1966) VR 553 (Winneke CJ, Hudson and McInerney JJ) (‘Ryan and Walker’).
Consideration
For the reasons that follow, we are satisfied that the offence of murder contrary to s 3A(1) of the Crimes Act is not and has never been an ‘alternative charge’ to murder contrary to the common law.
Statutory alternative?
Section 421(1) of the Crimes Act provides as follows:
On an indictment for murder a person found not guilty of murder may be found guilty of:
(a) manslaughter;
(ab) child homicide;
(ac) homicide by firearm;[8]
[8]Since 1 July 2020, inserted by the Crimes Amendment (Manslaughter and Related Offences) Act 2020.
(b)any offence of which he may be found guilty under an enactment specifically so providing;
(c) an offence against section 325;[9] or
(d)an attempt to commit murder or an attempt to commit any offence of which he may by virtue of this subsection be found guilty
but may not be found guilty of any other offence.
[9]As an accessory.
Section 6(2) of the Crimes Act provides that, on an indictment for murder, a woman found not guilty of murder may be found guilty of infanticide.
As can be seen, s 3A murder is not a statutory alternative to common law murder. Nor has it ever been so.
Common law alternative?
At common law, a person might be guilty of murder if he or she caused the death of another by a voluntary act (or omission) intending to kill or cause grievous bodily harm (or really serious injury) to that other person, or caused the death of another by an act (or omission) which he or she foresaw would probably cause death or grievous bodily harm to that other person. Additionally, prior to its abrogation by statute, the common law recognised the ‘felony murder’ rule, whereby a person who unintentionally caused the death of another by an act of violence in the course or furtherance of a felony of violence was guilty of murder.
Section 3A(2) of the Crimes Act — introduced by the Crimes (Classification of Offences) Act 1981 — abolished the felony murder rule with respect to acts done after 1 September 1981. By s 3A(1), the common law rule was replaced with a new statutory rule — statutory murder or s 3A murder. As amended from time to time, the subsection now provides:
A person who unintentionally causes the death of another person by an act of violence done in the course or furtherance of a crime the necessary elements of which include violence for which a person upon first conviction may, under or by virtue of any enactment, be sentenced to level 1 imprisonment (life) or to imprisonment for a term of 10 years or more shall be liable to be convicted of murder as though he had killed that person intentionally.
In R vButcher,[10] the Court explained the reasons for the abolition of the common law rule:
For some time prior to 1981 numerous criticisms of what was loosely called the felony murder rule had been made. The Law Reform Commissioner, Mr TW Smith QC, in his first report to the Victorian Government of August 1974 on the law of murder stated that the felony murder rule offended against ‘basic concepts of justice’ and he instanced in his Report the apparent width of its application and recommended that it be abolished …
Upon the second reading of the Crimes (Classification of Offences) Bill in the House by the Minister, s 3 was amended by omitting the words ‘crime of violence’ appearing in the original Bill and substituting in their stead the present words ‘crime the necessary elements of which include violence’ …
We gather from reading Hansard that the intent of the amendment was to make it abundantly clear that the crimes in the commission of which the felony murder rule as defined in s 3(2) was to continue in force in the State of Victoria were to be of a class having ‘violence as one of its ingredients’ … and that the rule was not to apply simply because the particular crime committed was in fact one which was committed violently. Certain writers, for example Colin Howard in his Australian Criminal Law, had supported the diametrically opposed view of how the felony murder rule should apply because, we believe, of the narrow interpretation that he placed upon the meaning of the word violence.[11]
[10](1986) VR 43.
[11]Ibid 51 (Murphy, Murray and Gobbo JJ) (citations omitted).
It is plain from Ryan and Walker that ‘felony murder’ did not constitute a distinct offence. Rather, the felony murder rule provided an alternative means by which liability for murder might be established. In that case, it was alleged that a prisoner at Pentridge Prison, Ronald Ryan, had shot a warder dead in the course of a prison escape. In its judgment on appeal, the Full Court made clear that the jury had properly ‘founded its verdict on the first basis of express malice — an intention by Ryan to kill or do grievous bodily harm’, or ‘on the second basis, that is of felony murder’.[12] As is also clear, Ryan was presented on only one count, murder — there was no count of ‘felony murder’ — and only a single verdict was taken.[13]
[12]Ryan and Walker (1966) VR 553, 563 (Winneke CJ, Hudson and McInerney JJ).
[13]Ibid.
In R v Ng (‘Ng’),[14] the accused faced a single count of murder, the endorsement on the presentment alleging that the count of murder was ‘contrary to section 3A of the Crimes Act 1958 and to Common law’.[15] The accused was willing to plead guilty to ‘s 3A murder’, but not to murder at common law.[16] In those circumstances, the judge, Teague J, ruled that it was appropriate that the accused should be arraigned, and verdicts taken, ‘as on two counts’. Teague J said:
I do accept that there is only one crime of murder with only one penalty. I accept that the formulation of ss 3 and 3A confirms that that is so. I do accept that there is not a s 3A alternative to ‘common law murder’, in the sense that alternative crimes and verdicts are commonly referred to. So long as it is clear from the presentment that s 3A is being relied on, one charge of murder will suffice. I accept that it would be appropriate to proceed, by arraigning the accused on one count, and taking a verdict on one count. I do not accept that it is the only correct way to proceed. In the circumstances of this case, I consider that it is preferable to proceed by arraigning the accused and taking verdicts as on two counts.[17]
And also:
Having reviewed carefully the several cases dealing with ‘statutory modified felony murder’ as well as some other cases involving considerations as to offences of the same genus with different circumstances, it seems to me that s 3A murder is ‘sui generis’. There is only one crime, with more than one way of committing it. The circumstance that differentiates common law murder from a s 3A murder is a pretty fundamental one. It is whether or not there was murderous intent. The relative importance, in any particular case, of the differentiating circumstance will vary. In the instant case, it is of particular importance. I am satisfied that it should be decided by the jury. That can be done relatively readily. I can perceive no cumbersomeness or other obvious disadvantage in proceeding to obtain verdicts as on two counts. Proceeding in that way will also have the virtue of meaning that I will not have to direct the jury as to the basis upon which they must be unanimous. I am not able to accept that the statutory formulation precludes my moulding the procedure to maximally involve the jury in deciding the factual basis. I am not suggesting that the procedure that I propose should be adopted in this case is the only option. I am only ruling that it is the most appropriate procedure in the circumstances of this case.[18]
[14][2002] VSC 561 (‘Ng’).
[15]Ibid [3].
[16]Ibid [4].
[17]Ibid [7].
[18]Ibid [13].
Language used by the parties
There is an obvious distinction between an alternative means of proof of an offence, and proof of an alternative offence. The applicant pointed to numerous exchanges which took place during trial in support of his contention that statutory murder is a lesser alternative to common law murder. The following is an extract from the trial judge’s opening remarks:
Charge 1 is murder and Charge 2 is murder by killing through an act of violence done in the course or furtherance of a crime of violence. They are given to you as alternatives.
The prosecution does not say that the accused should be convicted of both of the charges, but of one or the other. This is because they have different elements, but they both relate to the same incident. So at the end of the trial, when you are delivering your verdict, you will be first asked for your verdict on Charge 1.
If you reach a verdict of guilty in relation to that charge, you will not be asked for a verdict on Charge 2. It is only if you do not unanimously reach a verdict of guilty on Charge 1, that is, that your verdict is not guilty on Charge 1, that you will be asked to deliver a verdict on Charge 2, and that's because the prosecution is entitled to your verdict on the charge that it puts first on the indictment.
It would be wrong for you to compromise and say, we cannot agree on a verdict on Charge 1, but we agree that the accused is at least guilty of Charge 2. That is not how this process works.
So, when you are listening to the evidence, bear in mind that there are two charges, both of them called murder, but they have different elements and there's only one series of allegations here, and both the charges relate to the same series of allegations. Charge 1 is what you are going to be asked for [a verdict] in relation to first, and it is only if you do not come to a unanimous verdict of guilty on that charge, that you will consider Charge 2.
In addition to these directions, the prosecutor adopted this language in his opening remarks:
[The] prosecution case against Mr Duca is put in two ways as Your Honour has been explaining to you. Common law murder. That is, the Crown sets out to prove that he shot the deceased after a struggle at the door and at the time that he fired the shots into the deceased that killed him, he intended to kill or do really serious injury. That’s something the Crown have to prove to your satisfaction.
In the alternative, the Crown says this was done in the course or furtherance of the crime, the elements [of] which include violence, armed robbery. We’ll go through all that a bit later. But it’s an alternative way of seeking to prove something that the Crown says he’s guilty of. Murder and the real element in the first one is his state of mind, his intention and the second one is a different course of violence, act of violence done in the course or furtherance of a crime, a necessary element of which is an act of violence.
In our view it is plain that both the judge and the prosecutor were using the word ‘alternative’ to signify an alternative or different means of proof of the offence of murder. We are in no doubt that all parties understood this to be so. This becomes clear with reference to further extracts from the proceedings. In a discussion as to how the elements of the offence would be put in the judge’s charge, the following exchange occurred:
HER HONOUR: So, with respect to count one, did he fire the shots and at the time he fired the shots did he do so with murderous intent?
[DEFENCE COUNSEL]: Yes.
HER HONOUR: And if they're not unanimous either way ‑ ‑ ‑
[DEFENCE COUNSEL]: Yes.
HER HONOUR: ‑ ‑ ‑ well that's not right is it. If they're not unanimously guilty ‑ ‑ ‑
[DEFENCE COUNSEL]: Not unanimously guilty.
HER HONOUR: --- they can’t reach a unanimous decision of guilt on count one. They can then consider count two ‑ ‑ ‑
[DEFENCE COUNSEL]: Yes.
It follows that, not only did the judge and prosecutor understand how ‘alternative’ was being used, but so too did defence counsel. In any event, no ground of appeal alleges that any unfairness arose at trial by the use of the word ‘alternative’ either as an adjective or as a noun. The contention is simply that statutory murder is a lesser alternative to common law murder and thus subject to the fundamental rule that an acquittal must be secured on the primary offence before a verdict on an alternative offence may be accepted. The passages referred to by the applicant in his written submissions do not advance his argument.
The ‘red pencil test’
At common law, if a jury finds an accused not guilty of the offence charged, but the allegations in the indicted charge amount to or include, whether expressly or impliedly, an allegation of another offence within the jurisdiction of the court, then the jury may find the accused guilty of that other offence. This common law principle has been incorporated into s 239(1) of the Criminal Procedure Act 2009 (‘CPA’), save for the offences of murder or treason.
This mechanism for identifying alternative offences can involve an application of the common law ‘red pencil test’: an offence will amount to or include another offence if words could be deleted from the particulars of an offence in the indictment in a way that leaves the particulars of the alternative offence.[19] Where an accused is charged with intentionally causing serious injury, for example, an application of the red pencil test would result in the charge of intentionally causing injury being an available alternative.[20]
[19]Mareangareu v The Queen [2019] VSCA 101, [44] (Priest, Hargrave and Emerton JJA).
[20]See, eg, LLW (2012) 35 VR 372 (Maxwell P, Weinberg JA and Williams AJA).
Self-evidently, the common law red pencil test cannot be applied to the primary charge of murder in a way that leaves s 3A murder as an available alternative. It follows that s 3A murder is not included in the primary offence and thus is not a common law alternative to common law murder. It is the same offence, murder, proved by a different means.
Teague J correctly identified the practical advantage of having the one crime alleged in different ways represented by two different counts on the presentment. In Ng, Teague J noted that the difference in the mens rea required for common law murder, as opposed to s 3A murder, was ‘pretty fundamental’.[21] The advantage in making each route to conviction the subject of a separate charge was that, for the purposes of sentence, the jury would determine whether or not there was murderous intent. If only the one charge of common law murder were presented, it would fall to the trial judge to discern the basis of the guilty verdict. His Honour made it plain that there is ‘not a s 3A alternative to “common law murder”’.[22]
[21]Ng [2002] VSC 561, [13].
[22]Ibid [7].
It was not contended on this appeal that common law murder ‘amounts to or includes’ s 3A murder.
The principle in DPP v Perry
When asked about these passages from Ng, Mr Holdenson QC for the applicant described them as ‘history’ and as contrary to Perry, which, he contended, was authority for the proposition that s 3A creates an offence ‘which [was] by definition’ a separate offence. Mr Holdenson relied on para 45 of Perry, which reads:
As already explained, the fact that the death occurs in the course of the foundational crime of violence is treated as supplying the mental element for murder. It may well have been contemplated that s 3A murder would only be charged in a case where the killing could not be proved to have been intentional. But, in truth, the section gives the prosecuting authority an unfettered choice. If a death occurs in circumstances to which s 3A applies, the offence of statutory murder may be charged even if there is a reasonable prospect of establishing that the accused acted with intent to kill or cause really serious injury. Or, as happens not infrequently, both forms of murder may be charged.[23]
[23]Perry (2016) 50 VR 686, 699 [45] (Maxwell ACJ, Redlich and Whelan JJA).
The applicant’s contention as to the effect of Perry should be rejected for two reasons.
First, while the applicant argued, on the basis of the above-quoted paragraph, that the decision in Perry overtakes Teague J’s holding in Ng that ‘there is only one crime of murder with one penalty’,[24] the Perry Court gave no indication that it regarded Ng as wrongly decided. Ng was in fact implicitly approved by the Court, which cited it as a precedent for the practice of charging ‘both forms of murder’ on an indictment, where the requisite intention to prove murder contrary to the common law was uncertain.[25] The Court at no stage indicated that this practice was inconsistent with Teague J’s holding that murder is a single crime.
[24]Ng [2002] VSC 561, [7].
[25]Perry (2016) 50 VR 686, 699 [45].
Secondly, insofar as it discusses the relationship between common law and s 3A murder, Perry can be distinguished from the present case in that its discussion relates, and is confined, to their relative seriousness for the purposes of sentencing. Perry stands only for the proposition that murder proved by way of s 3A is not inherently less serious than common law murder, and does not necessarily require a lesser sentence.[26] The Court had no occasion to consider, let alone provide any statement of principle as to, whether they were separate offences or two forms of the same offence as Teague J described them. If anything, the final line of paragraph [45], adopting Teague J’s description of the ‘two forms of murder’, points to an acceptance of the latter characterisation.
[26]Ibid 690–1 [8], 708–9 [81]–[83] (Maxwell ACJ, Redlich and Whelan JJA).
Key to the Court’s conclusion that ‘statutory murder is not inherently less serious than common law murder’[27] was its holding that murderous intent was immaterial to a finding of s 3A murder, rather than precluding such a finding.[28] This conclusion provides no support for the proposition that the two are separate offences. The Court was there concerned only with different modes of proof of murder. The conclusion that proof of an intention to murder was unnecessary for, rather than fatal to, satisfying s 3A led to the further conclusion that ‘the offence of statutory murder covers the full range of conduct, from the case where the death is an accidental result of the act of violence to the case where the death is the intended result of the act’.[29]
[27]Ibid 690 [8], 699 [48], 708 [81], 709 [83], 717 [117].
[28]Ibid 690–1 [8], 698 [43].
[29]Ibid 691 [8].
Potentially, then, the same course of conduct could simultaneously constitute murder under s 3A and murder under the common law. The effect of s 3A is only to discard the need to prove one element; it does not create a new offence characterised by its absence. Statutory and common law murder are simply alternative pathways to a verdict of guilt, rather than two distinct crimes requiring distinct verdicts. The term ‘alternative’ was used in this way, properly, at trial.
As we have said, the decision in Perry concerned — and resolved — one question only: whether the avenue by which a verdict of guilt for the crime of murder was reached should, of itself, affect the severity of the penalty imposed. Nothing said in Perry disturbs Teague J’s statement of principle in Ng, with which we respectfully agree. Nor does it prevent a jury from producing a single verdict where both forms of the crime are charged.
Construction of s 3A
The conclusion that s 3A does not create a separate offence is, in our view, strongly supported by the text of s 3A(1):
A person who unintentionally causes the death of another person by an act of violence done in the cause or furtherance of a crime the necessary elements of which include violence for which a person upon first conviction may, under or by virtue of any enactment, be sentenced to level 1 imprisonment (life) or to imprisonment for a term of 10 years or more shall be liable to be convicted of murder as though he had killed that person intentionally.[30]
[30]Crimes Act 1958 s 3A(1) (emphasis added) (‘Crimes Act’).
As the emphasised phrase makes clear, an absence of intent is immaterial to proof of the crime of murder in certain circumstances. The subsection does no more than that. Moreover, s 3A is expressly ancillary to s 3(1). The phrase ‘liable to be convicted of murder’ echoes the phrase ‘convicted of murder’ in s 3(1), which specifies the maximum penalty for murder. Section 3A itself makes no mention of penalty. There is nothing in s 3A to support the conclusion that it creates a separate offence.
The ‘third class’ of alternative offence in LLW
Regardless of whether s 3A creates a separate offence, the applicant then contended that s 3A murder fell into a ‘third class or category’ of alternative offence. This characterisation has its genesis in LLW. In that case it was held that, where a second offence on an indictment is neither ‘an included offence within the scope of s 239(1) of the Criminal Procedure Act 2009, nor … a specified alternative in s 425(1) of the [Crimes Act]’,[31] a jury may consider it as an alternative count on the indictment where it is ‘in substance’, if not in form, an alternative count.[32]
[31]In other words, neither a statutory alternative nor a common law ‘included’ alternative.
[32]LLW (2012) 35 VR 372, 374–5 [4] (Maxwell P, Weinberg JA and Williams AJA).
In LLW, the primary charge was rape and, as an alternative, a charge of sexual penetration of a child under 16 was included on the indictment. The latter offence was neither an included offence,[33] nor a specified alternative.[34] The Court held however that ‘in substance … it is an alternative count to rape and it should be treated in the same way for the purposes of the law governing the delivery of alternative verdicts’.[35] Thus, so the applicant’s argument was developed, in the present trial for murder the jury should not have been permitted to return a verdict on charge 2 unless it had acquitted the accused on the ‘principal count’, charge 1.
[33]Within the scope of s 239(1) of the Criminal Procedure Act 2009: LLW (2012) 35 VR 372, 374 [4].
[34]Within s 425(1) of the Crimes Act: LLW (2012) 35 VR 372, 374 [4].
[35]LLW (2012) 35 VR 372, 374–5 [4].
In our view, this argument must be rejected. As we have observed, murder is a single offence, unlike the charges in LLW, which alleged separate offences with an obvious hierarchy. An indictment that contains two counts alleging common law murder and s 3A murder alleges one offence of murder said to be capable of being proved in two different ways. Charge 2 on the indictment was not a legal alternative to charge 1 and there was no requirement that the applicant be acquitted on charge 1 before the jury could consider charge 2.
The form of the indictment
As noted earlier, the indictment contained two charges of murder. They were set out as follows:
PARTICULARS
AND STATEMENT OF OFFENCE
CHARGE 1 The Director of Public Prosecutions charges that LAWRENCE MICHAEL DUCA at Deer Park in Victoria on the 16th day of June 2017 murdered PHUONG THE VUONG
Statement of Offence – Murder contrary to Common Law.
CHARGE 2 The Director of Public Prosecutions charges that LAWRENCE MICHAEL DUCA at Deer Park in Victoria on the 16th day of June 2017 murdered PHUONG THE VUONG by an act of violence done in the course of a crime namely Armed Robbery the necessary elements of which include violence for which a person upon first conviction may be sentenced for a term of 10 years or more.
Statement of Offence – Murder contrary to s. 3A(1) of the Crimes Act 1958.
No complaint was made, either at trial or in this Court, about the form of the indictment. Defence counsel conducted the trial — without demur or apparent difficulty — on the basis of the two charges, as clearly explained to the jury by the judge and the prosecutor. In this Court, the applicant’s submission relied on (without questioning) the pleading of the two charges, which was said to show that s 3A murder was an alternative offence to common law murder.
Priest JA has expressed the view that the practice of pleading two charges of murder in a case such as the present is contrary to law and should cease. It is therefore necessary for us to deal with that issue briefly. As the matter was not the subject of argument, what follows of necessity represents only our provisional views.
It is important, in our view, to emphasise the obvious advantages that flow from the adoption of this form of pleading. First and foremost, it serves the fundamental fair trial principle that an accused person must be informed of the case he or she has to meet.[36] That principle is now enshrined in s 25(2)(a) of the Charter of Human Rights and Responsibilities Act 2006.[37]
[36]PPP v The Queen (2010) 27 VR 68, 80 [42]; [2010] VSCA 110 (Redlich JA).
[37]‘A person charged with a criminal offence is entitled … to be informed promptly and in detail of the nature and reason for the charge’.
As explained earlier in these reasons, the prosecution case against the applicant on common law murder rested on a quite different factual basis from its case on s 3A murder. It was both necessary and appropriate that the applicant be informed that he would have to meet — and the jury would be asked to
consider — both factual bases.
Secondly, this form of pleading was obviously conducive to the jury’s comprehension of the case against the applicant. The fact that there were alternative factual pathways to a guilty verdict might well have created confusion. As it was, the form of the indictment enabled the judge and both counsel to explain clearly to the jury the issues which they had to decide. Simplifying and clarifying the issues for criminal juries is an objective which the Victorian Parliament
has strongly endorsed.[38]
[38]See Jury Directions Act 2015 ss 1(b), 5.
Thirdly, as already mentioned, this practice is conducive to certainty and transparency in sentencing. Where, as here, the charge of murder rests on two alternative modes of proof, it seems to us to be highly desirable that the charges be presented in a form which will leave the judge in no doubt — in the event of a conviction — of the basis on which the jury returned their verdict. As the editors of Archbold Criminal Pleading Evidence and Practice have observed, an indictment should be drafted ‘in such a way as to leave no room for misinterpretation of a guilty verdict’.[39]
[39]R v A [2015] EWCA Crim 177, [47] (Fulford LJ), citing Archbold: Criminal Pleading Evidence and Practice (Sweet & Maxwell, 63rd ed, 2015) [1-245].
We see no advantage — and some risk — in leaving it to the judge to divine the basis of the verdict. On the facts of the present case, we think there would have been a real risk of the judge concluding that the jury had found the applicant guilty of common law murder, rather than of s 3A murder as was in fact the case.
Whether pleading two charges for one offence is, strictly speaking, permissible under sch 1 to the CPA is a question of form rather than of principle. We note that the CPA introduced a quite different approach to compliance with the rules of criminal pleading. Whereas s 370 of the Crimes Act provided that a presentment was ‘not open to objection’ if the Presentment Rules were complied with, s 166(1) of the CPA provides that an indictment ‘is not invalid by reason only of a failure to comply with Schedule 1’. According to the guide to the Act published by the Department of Justice, this new approach was ‘designed to allow decisions as to the validity of indictments to focus on issues of substance rather than of technical compliance’.[40]
[40]Department of Justice (Vic), Criminal Procedure Act 2009: Legislative Guide (Justice Statement, February 2010) 172.
As things stand, there is nothing in sch 1 which either authorises or prohibits the pleading of an indictment in this way. As Priest JA points out, cl 5(2) requires that separate offences be pleaded and particularised in separate paragraphs. Self-evidently, that requirement is designed to ensure procedural fairness to an accused. It would seem surprising if that requirement were held to preclude — by necessary implication — the pleading of two charges for a single offence where to do so serves the same fundamental purpose.
In answer to questions from the Court, the Chief Crown Prosecutor said that this form of pleading — two charges for one offence — was sometimes adopted with a single offence of culpable driving, for example, where one charge on the indictment relied on facts which engaged s 318(b) of the Crimes Act (gross negligence) and another relied on facts which engaged s 318(c) (intoxication). Culpable driving has, of course, an offence-specific pleading provision — s 318(3) — which requires that an indictment specify ‘which form of culpability … is charged’. If it were thought necessary, ss 3 and 3A could be amended by the insertion of an equivalent provision.
These are, however, matters of procedure. Rules of pleading, in criminal proceedings as in civil, are designed to serve the interests of justice, by ensuring procedural fairness.[41] As has often been said, procedural rules ‘are not ends in themselves but means to an end, which is the attainment of justice‘.[42] Since the form of indictment used in this case unarguably advances basic fair trial principles, there is every reason for this pleading practice to continue. If a change in the pleading rules were thought to be necessary, appropriate steps should be taken to
amend sch 1.
[41]See, eg, Wheelahan v City of Casey [2013] VSC 316, [25] (Dixon J).
[42]Union Bank of Australia v Harrison, Jones and Devlin Ltd (1910) 11 CLR 492, 504 (Griffith CJ). See also Bay Marine Pty Ltd v Clayton Country Properties Pty Ltd (1986) 8 NSWLR 104, 108–9 (Kirby P).
Conclusion
The offence of murder, contrary to s 3A of the Crimes Act is not a legal alternative to common law murder. No ‘fundamental rule’ was breached by taking a verdict on s 3A murder after the jury failed to agree on common law murder.
Leave to appeal must therefore be refused.
PRIEST JA:
As Windeyer J observed in Ryan v The Queen,[43] there
was a time when man was guilty of murder, and punished accordingly, if while doing any unlawful act he happened to kill another man, however unexpectedly and unintentionally. This harsh rule became gradually mitigated. By the eighteenth century, although a man who in the course of committing a crime unintentionally killed another might still for that reason be guilty of murder, this was only when the crime was a felony.
[43](1967) 121 CLR 205, 240. For a discussion of the development of felony murder, see David Lanham, Felony Murder — Ancient and Modern, (1983) 7 Crim LJ 90.
It is plain that ‘felony murder’ at common law was not an offence distinct from murder. There was but one crime of murder. The felony murder rule simply provided an alternative means by which liability for murder might be established.
Ryan and Walker provides an example of the practical operation of the felony murder rule. In that case, although the prosecution’s case for murder against Ryan was put on the basis that he intended to kill or do grievous bodily harm, or alternatively on the basis of felony murder, the presentment contained but one count of murder, and the jury returned but one verdict. That verdict might have been founded either on an intention by Ryan to kill or do grievous bodily harm, or alternatively on the basis of felony murder.[44]
[44]Ryan and Walker, 563.
All distinctions between felony and misdemeanour were abolished in this
State by s 322B(1) of the Crimes Act 1958, inserted by s 2 of the Crimes (Classification of Offences) Act 1981 (‘the amending Act’).[45] The practical effect of s 322B(2) was that the law and practice that had been ‘applicable … in relation to misdemeanour’ immediately before the commencement of s 322B was in future to apply to all indictable offences.
[45]At common law, although there were some exceptions, felonies generally were punishable by death, and the felon’s land and goods were liable to be forfeited to the Crown. Further, as Yeldham J observed in Cann v Gray [1978] 2 NSWLR 75, 79, ‘another distinction, which flowed from the fact that felonies at common law were always heinous offences and resulted in forfeiture, was that, whereas justices of the peace who committed a felon for trial always had authority to insist, if they thought fit, on his remaining in prison until his trial, a person committed for trial for a misdemeanour could, at common law, insist upon being released on bail, if he found sufficient sureties’.
Given that certain indictable offences were no longer to be classified as felonies, it is not surprising that the legislature saw a need also to replace the ‘felony murder’ rule with a new statutory rule (which was similar — although not identical — to the common law rule it replaced). There simply was no ‘felony’ to which the common law rule could any longer apply.
Section 3A of the Crimes Act 1958, also introduced by the amending Act, abolished the felony murder rule, and replaced it with what is colloquially termed ‘statutory murder’ or ‘s 3A murder’. Section 3A(1), as amended, now provides:
A person who unintentionally causes the death of another person by an act of violence done in the course or furtherance of a crime the necessary elements of which include violence for which a person upon first conviction may, under or by virtue of any enactment, be sentenced to level 1 imprisonment (life) or to imprisonment for a term of 10 years or more shall be liable to be convicted of murder as though he had killed that person intentionally.[46]
[46]Emphasis added.
As the Court observed in Butcher, in the passage cited in the joint reasons,[47] the obvious intent of s 3A was to make it clear that the new rule was not to apply simply because the particular crime committed was in fact one which was committed violently, but was to apply to a class of offences having ‘violence as one of its ingredients’.
[47]See [18] above.
Importantly, the language of s 3A(1) makes it plain that no separate and distinct offence of statutory murder was created by its introduction. An offender caught by its terms is ‘liable to be convicted of murder’ (as though he had killed the deceased intentionally). Thus, if a person causes death unintentionally by an act of violence in the course or furtherance of a crime having violence as one of its necessary elements, he or she is not convicted of ‘statutory murder’ or ‘s 3A murder’, but of ‘murder’. Indeed, there is no separate penalty set out in s 3A for any offence falling within its terms. One must instead look to s 3(1) of the Crimes Act 1958, which sets out the punishment for ‘murder’.
Once the legislature had determined to abolish any distinction between felony and misdemeanour, there was little prospect that some judicially-crafted common law equivalent to the felony murder rule could evolve.[48] Such a creature would have been of dubious pedigree. It is plain that the legislature intended to fill the void left by the demise of the felony murder rule — that demise rendered inevitable by the removal of the distinction between ‘felony’ and ‘misdemeanour’ — with a very similar statutory rule. But, as I have said, no new offence was created. Rather, the new statutory rule was intended to introduce a new alternative means by which liability for a classical offence might be established.
[48]Section 322D(2) of the Crimes Act 1958 provides that where a person is arraigned after 1 September 1981 on indictment or presentment for a felony committed before that date, ‘the offence shall for the purposes of his trial on that indictment or presentment be deemed always to have been a misdemeanour and, notwithstanding that the indictment or presentment is framed for felony, shall be deemed to be charged as a misdemeanour’.
The provisions introduced by the amending Act also made it plain that it was not intended to effect a wholesale abrogation of existing law and practice, so that the law and practice that had been applicable in relation to misdemeanour was preserved. Importantly, there was nothing in the provisions introduced by the amending Act that would justify the view that legislative sanction was being given to a novel practice which would permit two counts to be included on a presentment or indictment — one under common law and the other under s 3A — for a single offence of murder. Indeed, the opposite is true. Preservation of the law and practice that had been applicable in relation to misdemeanour is a clear indication that it was intended that (among other things) the practice of alleging a single count or charge for a single offence was to continue.
At the time Ryan and Walker was decided, a presentment had to comply with the Presentment Rules in the Sixth Schedule of the Crimes Act 1958.[49] Presently, s 159(3)(c) of the Criminal Procedure Act 2009 (‘CPA’) provides that an indictment must comply with Schedule 1. Clause 5(2) of Schedule 1 largely reflects the former rule 3(2) of the Presentment Rules.[50] It is in the following terms:
(2)If more than one offence is charged in a charge-sheet or indictment, the particulars of each offence charged must be set out in a separate, consecutively numbered paragraph.
[49]The ‘Appendix to Rules’ contained a number of Forms, including for a count charging murder. Form 1 was as follows:
1
STATEMENT OF OFFENCE
Murder
PARTICULARS OF OFFENCE
A.B. on the day of 19 at murdered C.D.
[50]Rule 3(2) of the former Presentment Rules was as follows:
(2) Where more than one offence is charged in a presentment the particulars of each offence so charged shall be set out in a separate paragraph called a count.
Where, in relation to a killing, the prosecution seeks to put its case for murder on alternative bases — common law and s 3A — there is but one offence. It is only if there is more than one offence that each offence must be charged in separate paragraphs. To put two separate charges on an indictment to charge a single offence of murder is not only contrary to principle and inveterate practice, but it contravenes s 159(3)(c) and Schedule 1 of the CPA. Thus, no matter how convenient the procedure adopted by Teague J in Ng might be thought by some to be, I consider that it is contrary to law. In my view, the practice of including two charges on an indictment when the prosecution’s case for murder is alleged in the alternative accordingly should cease. Indeed, it cannot be gainsaid that — although there was no demur to the inclusion of two charges — the presence of two charges on the indictment was the root source of the major difficulty in this case.
Mustering such ingenuity as I have at my disposal, I can think of no other offence, capable of being committed in alternative ways, which may be prosecuted by the inclusion of multiple charges on an indictment; or envisage any method, consistent with principle, by which it would be proper to include two charges on an indictment in order to prosecute a single offence. That, perhaps, is not surprising, since such an approach is so obviously contrary to principle and long-standing practice that ordinarily it would never be contemplated. Even an offence like culpable driving, which can be committed in several alternative ways, and for which s 318(3) of the Crimes Act 1958 requires an indictment to ‘specify which form of culpability … is charged’, only ever results in a single charge. It is common for a charge of culpable driving to include more than one particular — for example, gross negligence and being under the influence of alcohol — but there is only one charge. The jury must be directed that they cannot convict on the charge of culpable driving unless satisfied unanimously that one of the bases of liability has been proven to the criminal standard. But if they convict, their verdict is that the accused is guilty of the offence of culpable driving. It is then for the judge to sentence on a basis consistent with the jury’s verdict.
The main advantage perceived by the proponents of the procedure adopted in Ng is transparency for sentencing purposes. In my view, however, that advantage is apt to be overstated, since it is always open to a trial judge in an appropriate case to ask the jury the basis of their verdict.
By way of example, in Chiro,[51] the appellant, a teacher, had been convicted by a jury of an offence of persistent sexual exploitation of a child, the relevant child being one of his students. Legislation provided that a person committed an act of sexual exploitation of a child if the person committed an act in relation to the child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a ‘sexual offence’ as defined. The information alleged that the appellant committed more than one act of sexual exploitation of the complainant, comprising kissing the complainant on the lips on more than one occasion; touching the complainant’s vagina on more than one occasion; touching the complainant’s breasts on more than one occasion; inserting his finger into the complainant’s vagina; causing the complainant to touch his penis; and inserting his penis into the complainant’s mouth. It was the prosecution case that each of the acts amounted to a ‘sexual offence’, namely, indecent assault or unlawful sexual intercourse.
[51]Chiro v The Queen (2017) 260 CLR 425 (‘Chiro’).
On appeal against conviction, the High Court rejected the contention that — given the peculiar nature of the offence and the requirement of extended unanimity in respect of the underlying acts of sexual exploitation — the trial judge should have taken a special verdict. Kiefel CJ, Bell, Keane and Nettle JJ held, however, that the trial judge should have exercised her discretion to ask the jury to specify which of the particularised acts of sexual exploitation they were agreed had been proved. In joint reasons, Kiefel CJ, Keane and Nettle JJ observed:
In this case, the judge was right not to direct the jury to bring in a special verdict, and the jury’s general verdict of guilty of the offence charged was not uncertain. This was a case, however, in which, after the jury had returned the general verdict, the judge should have exercised her discretion to ask the jury to specify which of the particularised acts of sexual exploitation they were agreed had been proved. …
There was also nothing to prevent the judge directing the jury before they retired to consider their verdict that, if they reached a verdict, they would be asked whether they found the accused guilty or not guilty of the offence charged and, if their verdict was guilty, they would be asked to state which of the alleged acts of sexual exploitation they were unanimously agreed (or agreed by statutory majority) had been proved. It would have been appropriate for her Honour to do so. …[52]
[52]Ibid 448–9 [46]–[47]. See also 455–6 [67] (Bell J).
In a case similar to the present, where murder was put on alternative bases — there being a single charge — it would always be open to the trial judge to inquire of the jury the basis of their guilty verdict.
But even were a judge not to ask the jury the basis of their verdict — common law murder or statutory murder — there is no reason to think that in the ordinary case the sentencing task will be unduly compromised. As the Full Court observed in Harris (a case which has been followed in multiple cases in the almost six decades since it was decided):
The responsibility of awarding punishment once a jury have convicted a prisoner lies solely upon the judge. He has to form his own view of the facts and to decide how serious the crime is that has been committed, and how severely or how leniently he should deal with the offender. The learned judge in forming his view of the facts must not, of course, form a view which conflicts with the verdict of the jury, but so long as he keeps within those limits, it is for him and him alone to form his judgment of the facts … He has presided at the trial and he has seen the witnesses and has seen how the trial has progressed, and he can form his own judgment of the seriousness or other character of the offence.[53]
[53]R v Harris [1961] VR 236, 236–7.
Save for the foregoing observations, I agree with Maxwell P and T Forrest JA that s 3A murder is not an alternative offence to murder at common law, and that no miscarriage of justice resulted from the jury having returned a verdict on charge 2 without also returning a verdict on charge 1. As was made clear in Weeding, the ‘rule that a jury should return a verdict in respect of all counts charged in a presentment is no more than a rule of practice, and should not … be allowed to stand in the way of justice being done in a particular case’.[54]
[54]R v Weeding [1959] VR 298, 304.
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