Likiardopoulos v R
[2010] VSCA 344
•17 December 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 0673 2009
| DIMITRIOS LIKIARDOPOULOS |
| v |
| THE QUEEN |
| S APCR 0696 2009 |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DIMITRIOS LIKIARDOPOULOS |
| S APCR 0855 2008 |
| JOHN LIKIARDOPOULOS |
| v |
| THE QUEEN |
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JUDGES: | BUCHANAN, ASHLEY and TATE JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 28 October 2010 | |
DATE OF JUDGMENT: | 17 December 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 344 | |
JUDGMENT APPEALED FROM: | [2009] VSC 217 (Curtain J); [2008] VSC 387 (Lasry J) | |
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Criminal law – Conviction – Murder – Joint criminal enterprise – Whether ‘presence’ required at the time of act(s) causing death – Counselling and procuring – Whether applicant must know/believe that death will result from acts of principal(s) – Whether requirement that procuring be a cause of the principal’s conduct – Acceptance by Crown of pleas of guilty by principals to manslaughter – Whether abuse of process for Crown to argue that applicant counselled or procured others to commit murder – Application for leave to appeal refused.
Sentence – Crown appeal – Whether sentence of 20 years imprisonment with non-parole period of 17 years manifestly inadequate – No complaint of specific error – Murder involved prolonged torture, humiliation and degradation of the victim – Appeal dismissed.
Sentence – Manslaughter – Youthful offender – Plea of guilty – Offending influenced by father – Mitigating factors of less significance by reason of gravity of the offending – Sentence of 12 years’ imprisonment with a minimum term of nine years’ imprisonment not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant Dimitrios Likiardopoulos | Mr M J Croucher with Mr A P Halphen | Lewenberg and Lewenberg |
| For the Applicant | Mr T Kassimatis | Balmer & Associates |
| For the Crown | Mr J D McArdle QC | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA
ASHLEY JA
TATE JA:
Christopher O’Brien died on 8 March 2007. At the outset, a number of men, and one woman, were charged with his murder. The men included the applicants Dimitrios and John Likiardopoulos, and Hakan Aydin.
The Crown later accepted pleas to manslaughter by John Likiardopoulos and Aydin and pleas by Shalendra Singh, Constantine Likiardopoulos and Darren Summers to being accessories after the fact to manslaughter.[1] Pleas were made on behalf of John Likiardopoulos and Aydin on 17 July 2008 and the two men were sentenced on 30 September that year. The former was sentenced to 12 years’ imprisonment with a non-parole period of nine years.[2] He seeks leave to appeal against the severity of his sentence.
[1]Crimes Act1958 (Vic) s 325(1).
[2]Aydin, who had undertaken to give evidence against the applicant, was sentenced at the same time – to six years’ imprisonment with a non-parole period of three years and six months.
Dimitrios Likiardopoulos stood trial for murder in the Supreme Court in February 2009. After a nine day trial, followed by very short deliberations, the jury returned a verdict of guilty of murder. On 5 June 2009, he was convicted and sentenced to 20 years’ imprisonment with a non-parole period of 17 years. It was ordered that he serve this sentence concurrently with another sentence which he was then undergoing.[3] Now he seeks leave to appeal against conviction; whilst the Director of Public Prosecutions appeals against sentence.
[3]In June 2006, the applicant had been sentenced to 12 months’ imprisonment, 248 days of which had been suspended for an operative period of 18 months. The suspended portion had been restored as from 7 May 2009 – that is, a date after the jury verdict, but before sentence.
The circumstances generally
We should describe, in general terms, the case advanced by the Crown. We begin with some uncontroversial facts.
Dimitrios Likiardopoulos – commonly called ‘Jim’ or ‘Jimmy’ in the evidence[4] – is a man born 10 February 1960. He was thus aged 47 at the time of O’Brien’s death.
[4]And in the record of interview conducted on 12 August 2007.
John Likiardopoulos is the son of Dimitrios Likiardopoulos. He was living with his father at premises in Noble Park at the time of O’Brien’s death. He was then aged 19.
Aydin was also living at that premises at the time of the killing. He had gone to live there not long after his release from prison in late November 2006. He was aged 28 at time of sentence. So he was aged 26 when O’Brien was killed.
A second and younger son of Dimitrios Likiardopoulos, Con Likiardopoulos, at times stayed at the home. He did so with his girlfriend, Antoinette Villela.
O’Brien was aged 22 at the time of his death. He had an intellectual age of about 14. In 2006, he had been living in a Special Care residence in Chandler Road, Noble Park. In October that year, he had moved into premises occupied by Darren Summers. Those premises were not far from the house occupied by Dimitrios and John Likiardopoulos and Aydin.
Illegal drugs were regularly and freely available at the Likiardopoulos home. Visitors attended from time to time, apparently to purchase drugs. Shalendra Singh was one such visitor. So was Summers.
In early 2007, Summers alleged that O’Brien had taken a bracelet belonging to his girlfriend from the home where they were living. He challenged O’Brien. The bracelet reappeared. Summers went further. He informed the Likiardopoulos family about the matter.
Also in early 2007, a man named Nearhos alleged that his mobile phone had either been stolen or lost at the Likiardopoulos home. Suspicion fell on Shalendra Singh. Over a two day period, he was detained and assaulted by members of the household. He eventually satisfied his attackers of his innocence. Apparently as recompense for the beating, and to eliminate (or at least reduce) the risk of him reporting what had happened to the police, he was invited to live in the premises at small cost. He took up the invitation.
Singh having been exonerated, suspicion with respect to the disappearance of the mobile phone fell on to O’Brien. He was summoned to the Likiardopoulos home. The precise date upon which he attended is not clear. It was probably around 6-8 March 2007. There, over a period of about two days, he was viciously, cruelly and repeatedly attacked. The attacks were perpetrated by a number of persons, amongst whom the Crown identified Dimitrios and John Likiardopoulos and Aydin.
The attacks included - (1) punching the victim’s head and face; (2) kicking his body; (3) assaulting him with weapons including ashtrays, sticks, and a hammer (the last-mentioned being used along his spine, neck, elbows and ankles); (4) forcing him to drink household detergent; (5) forcing him to eat chilli flakes; and (6) subjecting him to humiliating and degrading acts.
Not all of those who attacked O’Brien were always in the house throughout the entire period of the assaults. At times, also, particular offenders slept. Characteristically, having awakened, they used a variety of drugs, and consumed alcohol, in temporal conjunction with further attacking their victim.
Dimitrios Likiardopoulos was not present in the immediate vicinity at all times when O’Brien was under attack. At times he slept. For a period, he was not in the house. It was during this period, it appears, that the victim was made to drink the detergent. At other times, he used drugs – sometimes, but not always, when in the immediate presence of O’Brien whilst the latter was under attack.
Towards the end of the sustained assault, O’Brien lost control of his bowels and Dimitrios Likiardopoulos directed that he be taken to the bathroom to be cleaned up.[5] When he returned, he could not walk unaided. He was placed on a chair but, unable to sit upright, he slid to the floor and commenced convulsing. His pulse was undetectable. Attempts to revive him by cardiopulmonary resuscitation[6] failed.
[5]This was not the first time that he had been taken to the bathroom for such a purpose.
[6]Performed by Aydin and Villela.
There was evidence that Dimitrios Likiardopoulos refused a request by Aydin and Villela to take the victim to hospital, and dump him there so that he could receive treatment. There was evidence also that Villela suggested calling an ambulance, but that Dimitrios Likiardopoulos was adamant this not be done.
O’Brien died at the home. There was evidence that Dimitrios Likiardopoulos became enraged about this turn of events. He produced a gun, threatened the others that if anyone talked he would kill them, and said that he was not going back to prison for ‘this fucking dog’. Then, so the evidence went, he gave directions for disposal of the body. It was put into a sleeping-bag which he supplied. The intention was that John Likiardopoulos and Aydin bury it. But this was not done, because daylight intervened and the offenders panicked. They ultimately discarded the victim’s body by throwing it into the Dandenong Creek at Bangholme.
Then the house was extensively cleaned, and incriminating items were removed and burnt. The Crown’s case was that this was done at the direction, and under the supervision, of Dimitrios Likiardopoulos.
The Crown case was further that he required the others to give up their mobile phones, and that this was done. There was a suggestion that some of the assaults had been photographed using of one or more of the phones.[7]
[7]The phones were eventually recovered from the premises of a long-time associate of Dimitrios Likiardopoulos, Larry Polacko. According to Polacko, a briefcase in which police found the phones was delivered to him by John Likiardopoulos in August 2007, together with a broken-down shotgun (although the gun was wrapped, and the witness claimed not to have seen what was inside the wrapping). Another witness, Paul Gavagan, gave evidence that in March 2007 the applicant gave him a gun to mind.
The circumstances which we have outlined were relied upon by the Crown to underline the extent of the control exercised by Dimitrios Likiardopoulos over the other persons involved in the killing.
Following the attendance of a person at the Springvale police station on 11 August 2007 concerning this affair, persons including Dimitrios and John Likiardopoulos were interviewed and then released. On 14 August, Aydin was interviewed. Later that day, he led police to the place where the victim’s skeletal remains were discovered.
Following discovery of the remains, Dimitrios Likiardopoulos and others were arrested. He was questioned on the evening of 14 August, and on two occasions in the early morning of 15 August. On the first of the occasions on 15 August, allegations were put to him about the events leading up to O’Brien’s death. The interview was not quite of the ‘no comment’ variety. Dimitrios Likiardopoulos dismissed various allegations as the products of wild imagination, and ridiculed other police questions. He also offered the police gratuitous advice which hinted at the involvement of Aydin and Summers. At the second interview on 15 August, he made ‘no comment’ answers to questions about a briefcase, mobile telephones and a shotgun which had been recovered from Polacko’s house.[8]
[8]See n 5.
Post mortem examination could not establish the precise cause of the victim’s death. What it could establish was that there were fractures of vertebrae, shoulders, ribs and nose, and that two of the victim’s teeth had been knocked out. It was certainly open to the jury to conclude that these various injuries[9] had been inflicted in the course of the assaults. It was also open to the jury to conclude, having regard to all the evidence, that the victim’s death had been caused by the assaults – although no particular act, done at any particular time, could be ascribed to any particular individual as being causative of death.
[9]Or at least most of them; because there was some evidence of post-mortem ‘scavenging’.
The conviction application
The case against Dimitrios Likiardopoulos
The Crown advanced its case against the applicant in two alternative ways: First, that he acted together with others in a joint criminal enterprise – that is, to beat O’Brien with the intention of inflicting really serious injury. Second, that he counselled and procured others to beat O’Brien with that intention. In either event, the Crown contended, O’Brien’s death was the end result, and the applicant was guilty of murder. It did not matter whether he had performed any, and if so which, acts of assault. Nor did it preclude him being found guilty of murder that he had not always been immediately present when the victim was being attacked.
It was not the Crown case that the intention of any of the offenders had been to beat the victim so as to kill him; but rather that there had been an intention to inflict really serious injury.
At a factual level, the Crown relied upon (we do not presently discriminate between the two ways in which the Crown advanced its case) – (a) a body of evidence to the effect that the applicant was the dominant, domineering person in the household (in which description we include the various persons who participated in the attack); (b) evidence that he had repeatedly incited others to attack O’Brien; (c) evidence that he had himself participated in the attack – by ‘king hitting’ the victim in the face and mouth, and by kicking him; (d) evidence of what were said to be admissions by the applicant of his participation in the murder of the victim.
As to the first of the evidentiary aspects just mentioned, the Crown relied (as appears from the prosecutor’s opening) not only upon the applicant’s conduct with respect to the attack on O’Brien,[10] and with respect to the aftermath of the latter’s death, but also upon his role as ringleader in instigating the attack on Singh, and then in bringing that attack to an end.
[10]It included, for instance, Dimitrios telling O’Brien at one stage lick (or kiss) Singh’s backside –which he did – at other stages instructing younger offenders to take O’Brien to the bathroom and clean him up, and, when O’Brien was seen to be near death, saying words to the effect ‘I don’t want this cunt dying in my place’.
Concerning the third evidentiary aspect, there was evidence that when the applicant king-hit O’Brien, one of the latter’s teeth was knocked out and the applicant cut his own hand. His reaction was to scream at the victim words to the effect ‘You better not have any fucking diseases, you dog’; and then to strike him again.
With respect to the first and second evidentiary aspects, the detail of the evidence as to what was done in the attacks on the victim, by whom, and when, did not coincide. All of the persons most closely involved in the assaults claimed to have been drug-affected at the time. Other lay witnesses, associates of the applicant, claimed to have difficulty with recollection because of brain injury[11] or confusion.[12] The evidence given by a number of those involved, both principally and peripherally, in this disgraceful offending reveals, in our view, a desire either to minimise their role, or else to assist the applicant.
[11]Riza Vula.
[12]Raymond Crouch.
In the circumstances just described, applicant’s counsel was able to submit in this Court, inter alia, that there was evidence that – (a) the attack on O’Brien was not instigated by his client; (b) his client had not been present when the victim was made to drink the detergent; (c) his client had been away from the premises for a period when particular assaults had been committed; (d) the applicant had, by words, at one stage attempted to restrain John Likiardopoulos and Aydin from attacking the victim. As well, counsel contended that the intent which should be inferred from the evidence was intent to do the victim injury, as distinct from really serious injury.
Further, as we have already noted, no-one could say that any particular assault, by any particular person, had caused the fatal injuries; and thus no-one could say that the applicant had been present when the fatal injuries were inflicted.
The submissions and circumstances which we have noted at [32] and [33] are of limited assistance to the applicant. The notice of application for leave to appeal originally included an ‘unsafe and unsatisfactory’ ground. But that ground was abandoned. The application proceeded as a challenge to two aspects of the charge. Unless that attack succeeded, on a permissible view of the facts the finding of guilt on the count of murder was open.
Matters not in issue at trial
It was not in issue that the victim was dead, or that whoever had caused his death had done so by conscious, voluntary and deliberate act. Nor was it in issue that the killing was without lawful justification or excuse.
The applicant’s response
The applicant’s case, as conducted at trial, involved a denial that he had murdered the victim, or that he was guilty of manslaughter. Counsel invited the jury to return a verdict of guilty to assisting a principal offender: vide s 325(1) Crimes Act1958.
Appropriately in those circumstances, the trial judge directed the jury that if it found the applicant not guilty of murder then it should consider manslaughter; and that if it found him not guilty of manslaughter, then it should consider the s 325(1) offence. That was in accordance with her Honour’s discussions with counsel. She gave full directions with respect to each of those offences.
The Trial
The Crown called 19 witnesses and tendered exhibits. The applicant did not give evidence, and called no witnesses.
Grounds of Appeal
The appellant ultimately relied upon two grounds of appeal:
Ground 2: The learned judge erred in her directions on ‘joint criminal enterprise’; and in particular her Honour erred:
·(a) in failing to direct that liability by way of ‘joint criminal enterprise’ requires proof that the applicant was present at the time the act or acts causing death were performed and in directing that proof of presence was not required;
·(b) in leaving the case on the basis of ‘joint criminal enterprise’ when it was not open to exclude the possibility that the applicant was absent when the act or acts causing death were performed.
Ground 3: The learned judge erred in her directions on ‘counselling and procuring’; and in particular her Honour erred:
·(a) in directing that the applicant need not know or believe that death will result from the acts of the principal/s;
·(b) in directing that the alleged acts of counselling or procuring need not in fact cause or even encourage the principal/s to commit the offence;
·(c) in leaving to the jury this derivative form of liability for murder when none of the alleged principals had been convicted of murder and indeed the Crown had accepted pleas of guilty from those offenders to offences other than murder.
Ground 2
Two matters were addressed under cover of this ground. First, counsel submitted that ‘joint criminal enterprise’ is, in substance, another term for acting in concert. The latter requires the presence of the offender when the relevant act is done. But the judge had directed the jury that it was unnecessary for the applicant to be present when the critical act or acts were done. That was an error. Second, because no one could say what act or acts had caused death, and because the applicant had not been present throughout the assaults, it was not open to the jury to have found guilt on the joint criminal enterprise basis, and that case should not have been left for the jury’s consideration.
Ground 2 – the direction
The learned judge directed the jury extensively with respect to the Crown case based upon joint criminal enterprise. This is what she said in the major segment of her charge which addressed that matter:
If a number of persons engage in a joint enterprise to commit a crime and in fact, commit it, then all of them are guilty of the crime regardless of what part each played in the commission.
In order to find Dimitrios Likiardopoulos guilty of murder by operation of this doctrine, the Crown must prove to your satisfaction beyond reasonable doubt, one; that two or more people reached an agreement to pursue a joint criminal enterprise and that that remained in existence at the time the offence was committed. Two; that the accused participated in that joint criminal enterprise in some way. Three; that in accordance with the agreement one or more of the parties to the agreement performed all of the acts necessary to commit the offence charged and that the accused had the state of mind required for the commission of the offence at the time he entered the agreement.
The first element the Crown must prove is that the accused made an agreement with others; here, Hakan Aydin, Shalendra Singh and Johnny Likiardopoulos, to pursue a joint criminal enterprise; and here to inflict really serious injury upon Christopher O'Brien and that the agreement remained in existence; it remained on foot. The Crown does not have to prove that he entered into an agreement with all of those people, but it has to be at least with one of those people and it has to be with any of those persons whose act you are considering, the accused must have entered into an agreement with that person. Do you understand? So when I am referring from time to time with the others, I am talking about the others being the people that the accused man entered into an agreement with.
The second element the Crown must prove is that the accused participated in the joint criminal enterprise in some way. Here the Crown allege that by striking Christopher O'Brien to the mouth twice, causing the two teeth to be dislodged as asserted by Shalendra Singh and Hakan Aydin, and by slapping and kicking him as asserted by Paul Gavagan and Daniela Veselinovic, the accused man was physically engaged in the beating of Christopher O'Brien.
The third element that the Crown must prove is that in accordance with that agreement, that the parties to the agreement between them, performed all of the acts necessary to commit murder. That is, in striking, hitting and punching the deceased they did so with the intention to kill or to cause really serious injury to him and that the acts were done without lawful justification or excuse and that the acts were conscious, voluntary and deliberate, and in that way that such acts were the cause of the death of the deceased.
The fourth element which the Crown must prove is that the accused had the state of mind necessary to commit murder. That is, that Dimitrios Likiardopoulos intended either to kill or to inflict really serious injury to Christopher O'Brien. Here the Crown says that you would be satisfied that at all relevant times, Dimitrios Likiardopoulos' intention was to inflict really serious injury to Christopher O'Brien. Do you understand?
So as to the first element, the Crown must prove that the accused made an agreement with the other people to pursue a joint criminal enterprise and the agreement must have remained in existence; that is, must have been on foot at the time that Christopher O'Brien was killed. Such an agreement may be expressly stated or it may be inferred from the circumstances. Such an agreement might be the result of a carefully worked out plan or it might be made without a word spoken and on the spur of the moment.
In this case as I understand it, the Crown says that you can infer from the evidence that there was an agreement between Hakan Aydin, Johnny Likiardopoulos and Shalendra Singh and that the accused was at least intending to inflict really serious injury to Christopher O'Brien. The Crown say that because if you look at all the facts and circumstances of the case as you find them to be, that they were all acting with the one mind, and that was to inflict a severe beating on Christopher O'Brien.
The second part of the element requires that the agreement must be in existence when the murder was committed. If there is a possibility that the agreement has been called off or that Dimitrios Likiardopoulos has withdrawn from the agreement, then that first element will not be met.
As to the second element, the Crown must prove that the accused participated in the joint criminal enterprise in some way. Thus you must be satisfied that the accused engaged in some conduct, and here it is alleged that by kicking and punching Christopher O'Brien the accused contributed to the commission of the crime.
The third element which the Crown must prove, is that in accordance with the agreement the parties to the agreement did between them all of the acts necessary to commit murder, and there are two parts to this element.
First, you must be satisfied that all of the necessary acts were committed by the parties to the agreement. That means that you must be satisfied that Christopher O'Brien was kicked, punched, slapped, beaten by the parties to the agreement with the intention to kill or to cause him really serious injury, and that those acts were a cause of death and that they were performed without lawful justification or excuse, and that the persons performing those acts each did so consciously, voluntarily and deliberately.
You do not need to find that each party to the agreement committed each of those acts. Even if they only played a minor role, this part of the second element will be satisfied as long as all of the necessary acts have been committed by the parties to the agreement.
The second part of that element requires that the commission of the offence is within the scope of the agreement. To determine whether the acts alleged are within the scope of the agreement, you simply look at the nature of the agreement at the time it was entered into, and the Crown here allege that the agreement was to at least cause really serious injury to Christopher O'Brien, because the Crown says that he was to be subjected to a severe beating because he had stolen that mobile phone.
Provided you are satisfied that the parties to the agreement between them did all the acts that were necessary to commit murder, and that the commission of that offence, that is the murder was within the scope of the agreement, the agreement being to beat him severely with the intention to cause really serious injury, then that element will be met.
The fourth element which the Crown must prove is that the accused had the necessary state of mind to commit murder when he entered into the agreement, that is he must have intended to kill or to at least inflict really serious injury to Christopher O'Brien. I always speak in terms of the intention to kill or to inflict really serious injury, because either of those two elements are essential to found the crime of murder, but you will appreciate here that the Crown is saying really that it is an intention to inflict really serious injury, and if you are satisfied of that, that is sufficient for the purposes of murder. Do you follow?
The accused must himself, must have had that intention, he must have been of that state of mind, and that is that he must have intended that really serious injury be inflicted to Christopher O'Brien. It is not sufficient to prove that other parties to the agreement had that state of mind at the time of entering into the agreement, the accused must also have had it.
There, her Honour said nothing about the significance or otherwise of the applicant not being present throughout the attack. But later, she did address that matter. This is what she said:
Now, there is evidence before you that the accused man was not always present during the course of the attack on Christopher O'Brien. Daniela Veselinovic says he was not there at the start; and other witnesses have him in other rooms of the house at various times; and Paul Gavagan says that he was called to the house and that he saw Christopher O'Brien sitting with a towel over his head when he was sitting in the chair, and that he rang the accused and he went to collect the accused from Mulgrave and brought him back to the house at Heatherton Road.
He then says, I think, at that point Christopher O'Brien was coming out of the bathroom and Paul Gavagan said that the accused then made certain statements to him about what he had done to the accused (sic), and you will recall also Daniela Veselinovic's evidence that at the time that he had been brought out of the bathroom, and he fell onto her feet, that after that point various assaults were perpetrated on Christopher O'Brien, including the accused man striking him and that the accused man was present at that time.
The law says the accused's presence or absence whilst the deceased was being attacked does not determine his liability. If you are satisfied that Dimitrios Likiardopoulos was participating in a joint criminal enterprise; that is, in a common purpose to inflict really serious injury to Christopher O'Brien or to inflict injury less than really serious injury to Christopher O'Brien, then it does not matter that he was not present throughout.
The issue is whether he was a party to the agreement, pursuant to which the acts were done, either with the intention of causing really serious injury, murder, or with the intention of causing injury less than really serious injury, manslaughter. That is, you look to the purpose of the conduct and whether he was a party to it. So that evidence of Dimitrios Likiardopoulos's whereabouts, including his absence from the house, is relevant in determining whether he was participating in a common purpose; that is, in the joint criminal enterprise.
The question to be determined is, that is, the question you ask yourself is: am I satisfied beyond reasonable doubt that what was done to the deceased was done with the agreement or complicity of Dimitrios Likiardopoulos in the pursuit of a purpose which he had in common with those who inflicted the injuries? If your answer to that question is ‘Yes’, then the accused is liable, irrespective of whether he was present in the room while Christopher O'Brien was being attacked or elsewhere in the house or, indeed, in another suburb.
So you look to see if he was, if you like, if there was a unity of purpose; if he was ad idem with the common purpose of those who were doing the acts to Christopher O'Brien. Whether that be to inflict really serious injury or to inflict injury less than really serious injury. Do you understand?
So you ask yourself the question, ‘Am I satisfied beyond reasonable doubt that what was done to the deceased was done with the agreement of Dimitrios Likiardopoulos in pursuit of a purpose that he had in common’ whether that purpose be to inflict really serious injury or injury less than really serious injury, with those who inflicted the injuries; with those who performed the acts. If you answer to that question is, ‘Yes’ then the accused is liable, irrespective of whether he was present in the room when Christopher O'Brien was being attacked, or elsewhere in the house or indeed, in another suburb.
However, you would look at that evidence of whether the accused was present in the house or in the room where Christopher O'Brien was being attacked, or in another suburb to determine that issue of whether he was ad idem with the others in acting in pursuit of the common purpose. But the fact that he is not present does not determine the issue of liability.
Later still, she returned to the matter, giving this direction:
Firstly as to the question of presence. If your view of the evidence is that the accused was not present at the start of the attack on Christopher O'Brien, but that he jointed in it at a later stage, then provided you are satisfied that he joined in the agreement …
and –
The act or acts of the accused must be a cause of the death of the deceased. The issue of causation is addressed by the application of the doctrine of joint criminal enterprise and/or the accused acting as a counsellor and procurer to those persons whose acts caused the death of the deceased.
And, making the same point with respect to manslaughter –
So again that question of causation, the act or acts of the accused causing the death of the deceased, is again addressed by the application of joint criminal enterprise and/or the counselling and procuring. Because you can do that in respect of murder and you can do it in respect of manslaughter.
Her Honour’s directions were in accordance with the Bench Notes and Charge referable to joint criminal enterprise in the Victorian Criminal Charge Book.
Ground 2 should be rejected
In our opinion, for the reasons which follow, the attack on this aspect of the charge should be rejected.
First, the nomenclature used to describe ways in which more than one person may be liable as a principal offender[13] for a criminal venture has presented a recurring problem. So, in McAuliffe v The Queen,[14] the High Court said:
The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms — common purpose, common design, concert, joint criminal enterprise — are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime. The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party: in the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of a principal in the second degree where that party, being present at the scene, aids or abets its commission. But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission.[15]
[13]We do not include a person who is to be so treated by operation of s 323(1) of the Crimes Act.
[14](1995) 183 CLR 108, 113–114.
[15]Footnotes omitted.
The same problem of nomenclature was obliquely noted by McHugh J in Osland v The Queen[16] when, after referring to a passage in the judgment of Hunt J in the New South Wales Court of Criminal Appeal in R v Tangye,[17] his Honour said
[74]In accordance with the New South Wales practice, the Court referred to ‘carrying out a criminal enterprise’ rather than acting in concert. The principles, however, are the same.[18]
[16](1998) 197 CLR 316, 343 [73].
[17](1997) 92 A Crim R 545.
[18]See n 12, [73]. See also the reasons for judgment of Gaudron and Gummow JJ, dissenting at 327 [22].
The problem with nomenclature has its roots, at least in part, in historical distinctions which are now long past. But it has also been added to, in more recent times, by recognition of a distinction between what is sometimes called ‘traditional common purpose’ and ‘extended common purpose’. The latter had its origins in Johns v The Queen.[19] Its existence was confirmed in McAuliffe, and later in Gillard v The Queen.[20] Despite academic criticisms – and the minority opinion of Kirby J – it withstood attack, in the context of murder convictions, in Clayton and Hartwick v The Queen.[21]
[19](1980) 143 CLR 108.
[20](2003) 219 CLR 1.
[21](2006) 81 ALJR 439.
The principles of extended common purpose have no immediate relevance. The case against the applicant was not put on that basis. Their only present relevance is that they show, if there could be any doubt about the matter, that the terms referred to in McAuliffe in the passage cited above embrace a variety of circumstances in which persons may be held complicit in an offence.
Second, against the background of problems with nomenclature, three varieties of circumstances have been typically encountered, and each has been given a label: ‘concert’, ‘joint criminal enterprise’ and ‘extended common purpose’.
‘Concert’ was described this way by Smith J in his charge to the jury in Lowery and King:[22]
The law says that if two or more persons reach an understanding or arrangement that together they will commit a crime and then, while that understanding or arrangement is still on foot and has not been called off, they are both present at the scene of the crime and one or other of them does, or they do between them, in accordance with their understanding or arrangement, all the things that are necessary to constitute the crime, they are all equally guilty of that crime regardless of what part each played in its commission. In such cases they are said to have been acting in concert in committing the crime.
[22]R v Lowery and King (No 2) [1972] VR 560.
Applicant’s counsel fixed upon the passage. He submitted that the concept of ‘joint criminal enterprise’ was no more than a synonym for ‘concert’ thus described.
That submission was unsound. In Lowery and King, Smith J addressed a specific situation – that is, one in which both offenders were present – at least, sufficiently ‘present’ for the purposes of concert – when the victim was killed, and in which it was in issue whether one (and which) or both offenders had inflicted the fatal injuries. His Honour’s charge did not need to explore other circumstances.
The point was made in R v Morgan,[23] where the Court of Criminal Appeal noted a submission that ‘presence’ was always required in a case of alleged joint criminal conduct, and made this response –
Counsel for the applicant also submitted that the Crown failed to establish, by virtue of the evidence of McGee, that the applicant was present at all times when the deceased was attacked. He referred to R v Jensen and Ward [1980] VR 194 and R v Lowery and King (No 2) [1972] VR 560, at 561. It was said that the statements of this court in Jensen and Ward support the proposition that the Crown was required to prove the presence of the applicant when the acts constituting the crime were committed.
The submission overlooks that neither Smith J in Lowery and King nor this court in Jensen and Ward purported to make an exhaustive statement of the law governing the liability of persons engaged in a joint criminal enterprise.
[23][1994] 1 VR 567, 570.
Morgan was criticised by counsel for the applicant as having confused principle. We will consider that criticism later in these reasons. But whether or not it had any force, the Court’s observation – that the cases cited did not address anything other than the situation in which the offenders were present at the critical time - was surely correct.
Third, the submission for the applicant that ‘joint criminal enterprise’ is the equivalent of King and Lowery ‘concert’ and requires presence, was not aided by reference to authorities in which concert of that kind was alleged. Osland was such a case. Mrs Osland and her son were present when only the son inflicted the fatal injuries upon Mr Osland. The Crown alleged that the killing was the product of an agreement or understanding between them. The references by McHugh J to the fact that both offenders could be primarily liable in such circumstances[24] do not mean that the boundary of joint criminal enterprise (other than extended common purpose) ends with concert of the King and Lowery kind. Indeed, as his Honour observed[25] -
Where the parties are acting as the result of an arrangement or understanding, there is nothing contrary to the objects of the criminal law in making the parties liable for each other's acts and the case for doing so is even stronger when they are at the scene together.
[24]For instance, 342 [72], 343 [73] (referring to Tangye), 345 [79], 346 [80], 353 [93].
[25]At 350 [93].
Further, in their dissenting judgment, Gaudron and Gummow JJ, having referred to the passage in McAuliffe which we cited at [46], said this:
It is to be observed that in this passage reference to presence at the scene was made with respect to the case of a principal in the second degree. The reference was not repeated when dealing with liability established by reason of a common purpose. Rather, in a footnote, the Court, by way of comparison, referred to the statement of principle by Smith J in R v Lowery and King [No 2]. Smith J did propound the principle in terms involving a presence at the scene of a crime.[26]
[26]Osland v The Queen (1998) 197 CLR 316, 328 [24]. Footnote omitted.
Their Honours also said this:
… principle dictates the conclusion that those who form a common purpose to commit a crime together are liable as principals if they are present when the crime, or any other crime within the scope of the common purpose, is committed by one or more of them. The crime having been committed in accordance with the continuing understanding or arrangement, all are equally guilty as principals regardless of the part played by each. That result follows from the reasoning in McAuliffe v The Queen. Indeed, that reasoning would appear not to require presence at the scene of all parties to the continuing common purpose if the criteria specified in that reasoning otherwise are satisfied.[27]
[27]Ibid 329–330 [27]. Footnotes omitted.
Fourth, a key feature of concert of the Lowery and King and Osland kind is that multiple offenders may be convicted as being criminally complicit when only one of them engages in the offending conduct. That is to be contrasted with the circumstances which are required for proof of guilt in the case of what is called, in Victoria, ‘joint criminal enterprise’. In the latter connection, there are a number of authorities pertaining to joint offender which do not fit King and Lowery concert, which do not fall within the principles of extended common purpose, and which are not explained as cases of aiding and abetting, counselling or procuring: R v Clarke and Johnstone,[28] R v Morgan,[29] R v Franklin[30] and R v Lao and Nguyen.[31] To greater or lesser extent they support the existence of a kind of joint offender liability having the elements described by the judge in the present case. Unlike King and Lowery concert, these authorities have not required presence of all offenders at the time of commission of the offence, but they have required participation in the criminal enterprise. By participation is meant the taking of a step or steps to further that enterprise.
[28][1986] VR 643.
[29][1994] 1 VR 567.
[30](2001) 3 VR 9.
[31](2002) 5 VR 129.
Applicant’s counsel did not deny that there is a kind of criminal complicity as described. To that extent, he departed from his contention that ‘concert’ and ‘joint criminal enterprise’ are synonymous. But he submitted that this kind of complicity is to be confined to a particular factual situation. He further submitted that it had not and could not be applied to murder cases. Finally, he submitted that one of the authorities – Morgan – confused principle.
In Clarke and Johnstone, the Court of Criminal Appeal said this: –
We turn then to the complaint that the Judge did not direct the jury as to ‘concert’ and failed to tell them what was the meaning of ‘joint enterprise’. The short answer to the complaint is that the case was not put as one of concert as that term is understood in this State. In consequence the standard direction to be found in R v Lowery and King (No 2) [1972] VR 560 and approved by this Court in R v Jensen and Ward [1980] VR 194 was not required to be given. The Judge at no time mentioned the expression ‘concert’ in his charge. Nor did he intend to do so. That category of culpability in the criminal law in this State is dependent for its application upon the presence of the co-offenders at the scene at the time of the commission of the offence. This concept of the contemporaneous presence of each of those with a part to play in the perpetration of the crime can have no sensible application to the commission of an offence that consists of a deemed trafficking arising from possession for sale which possession in turn is deemed to exist by reason of an occupation of land on which the drug of dependence is to be found - especially when the drug has come into existence over a period of time required for its planting, growing, tending and nurturing. This is the kind of offence where a number of offenders may be expected to be involved and that the parts played by some such as financing and marketing will never bring them onto the land where the drug is being cultivated.
The offence can be (and usually is when conducted on a large scale), and in this case truly was, a ‘joint venture’. Still less is the offence as charged and presented by the Crown a mere case of conspiracy. The gist of the offence was actual participation in some aspect of the trafficking - not merely an agreement to traffick.[32]
[32]R v Clarke and Johnstone [1986] VR 643, 652–653.
R v Lao and Nguyen,[33] like Clarke and Johnstone, involved different offenders having separate and distinct involvement in different stages in the offence of drug-trafficking. The principles of joint criminal enterprise fit that situation well. King and Lowery concert would not have application in such a case. It is again the fact that the principles of extended common purpose would not apply. Further still, the principles of accessorial liability would have no obvious application. All this means that the principles of joint criminal enterprise as expounded in cases such as Clarke and Johnstone have an important part to play in the kind of factual situation which there arose.
[33](2002) 5 VR 129.
But none of this confines the application of joint criminal enterprise principles to the factual circumstances epitomised by Clarke and Johnstone and Lao and Nguyen. There is no reason that we can see why those principles should not be extended to a case such as the present if the facts permit their application. The contention that the principles could not be applied to a case of murder echoed a submission made for the applicants, in the context of extended common purpose, in Clayton and Hartwick v The Queen.[34] The submission failed in that case, and in our opinion it has lesser force still in the present context. For here, as the relevant principles have been developed, the Crown must prove the accused’s continuing agreement to engage in particular conduct, participation by the accused, performance of all the conduct necessary to commit the offence by one or more of the parties to the agreement, and that the accused had the requisite mens rea.
[34]Clayton and Hartwickv The Queen (2006) 81 ALJR 439, 443 [15] (Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ), 446 [41] and 447–448 [46] (Kirby J).
Counsel for the applicant particularly criticised Morgan. This was understandable because, on its face, Morgan applied joint criminal enterprise principles to a case of manslaughter in circumstances not unlike the present.
The substance of counsel’s criticism was that there the Court had wrongly concluded that the King and Lowery charge did not exhaustively state the requirements of concert, so concluding by reference to Johns, which was an extended common purpose case.
In our opinion, the criticism lacked force.
It is true that Johns was concerned with accessorial liability; and, in that connection, with the question of criminality arising from possible rather than probable, consequences of the execution of a common purpose. On the other hand, Mason, Murphy and Wilson JJ, speaking of ‘the doctrine of common purpose’, said this:
The object of the doctrine is to fix with complicity for the crime committed by the perpetrator those persons who encouraged, aided or assisted him, whether they be accessories or principals. Broadly speaking, the doctrine looks to the scope of the common purpose or design as the gravamen of complicity and criminal liability.
The Court of Criminal Appeal relied upon that broad statement of principle in its analysis in Morgan.[35] It led the court to say:
Thus, in our opinion, the question is one of complicity of the applicant in the commission of the crime rather than one whether he was present throughout the entire time when the injuries were inflicted. Here the crime is one of manslaughter not committed by a single, unlawful and dangerous act but by a large number of acts, which were dangerous in totality, committed over a number of hours. But the purpose was singular. It was, the Crown said, to exact punishment on the deceased for the death of Cooper. So understood, it was clearly open to a reasonable jury to conclude that what was done to the deceased was done with the complicity of the applicant in pursuit of a purpose which he had in common with those who inflicted the injuries and that it was not to the point whether in the last period of the deceased's life the applicant was present when the final blows were struck. This is not to say that his absence was irrelevant but rather that his absence was merely a consideration to be taken into account by the jury in determining whether the Crown had satisfactorily proved that what was done to the deceased in the absence of the applicant was within the scope of the plan or arrangement to which he was a party.[36]
[35]The Court also cited passages in the judgments of Barwick CJ and Stephen J to similar effect.
[36]R v Morgan [1994] 1 VR 567, 574.
We should also mention R v Franklin.[37] That was another case where the victim’s death was the consequence of multiple injuries inflicted by the accused and others over a long period. At times the accused had not been present. In what was evidently an attempt to simplify the jury’s task, the trial judge directed the jury that the accused was criminally responsible for his own acts and for the acts of persons under his control. It was held that the ‘control’ direction was a misdirection, but that there had been no miscarriage because the evidence compelled a conclusion that the accused was guilty of murder. That was because the evidence left it inescapable that injuries inflicted by the accused made a substantial contribution to the victim’s death.
[37](2001) 3 VR 9.
Because of its unusual forensic circumstances, Franklin is not of direct relevance. But Ormiston JA did say this, strictly obiter dictum:
The difficulty in the present case may have been seen to be the applicant’s significant participation in the carrying out of the assaults on [the victim] and yet his absence from the scene for a number of not inconsiderable periods. So it was contended that he could not have been prosecuted and convicted on the basis that he was acting in concert with the other offenders inasmuch as he was not present at the scene, a requirement seemingly insisted on by all the authorities with the possible exception of the judgment of Gaudron and Gummow, JJ in Osland. That contention would appear to ignore the existence of authority suggesting that continuous presence is not essential: see R v Standley, Bingley’s Case, R v Kirkwood, R v Dade, R v Jordan, R v Sheppard and R v Kelly.[38]
[38]Ibid 55, [135]. Footnotes omitted.
His Honour’s observations as to presence are compatible with the citation, in Clarke and Johnstone, of the following passage from Russell on Crime[39] -
All the facts of the case must be taken into account so that where it appears that there is a joint enterprise afoot between two (or more) persons in which each has an active part to perform in order to effect the criminal purpose then each participant is equally a principal in the first degree ... So also there may be joint action in cases of stealing and other crimes. In certain circumstances each of the participants may do his part in the absence of the others and even may not know by whom the other parts were executed.[40]
[39](12th ed), Vol 1, pp 131–132.
[40]The author supported that proposition by reference to an old case not cited by Ormiston JA – R v Hurse and Dunn (1841) 2 M and Rob 36.
Fifth, the applicant’s argument did not sit comfortably with the principles of extended common purpose. Although persons implicated under those principles have generally been present when the offence was committed – at least, ‘present’ in an extended sense – the principles as described do not necessitate presence.
Sixth, implicit in the applicant’s submission was a narrow conception of presence. But it is a mistake to think, in the King and Lowery context, that ‘presence’ has a narrow meaning. The example which Smith J gave the jury – of three persons who would be guilty of housebreaking despite two of them not entering the house, one being physically further distant from the house than the other, shows the elasticity of the concept. The same is true of the bank robbery example often given to juries. Note also that Professor Sir John Smith, in Reshaping the Criminal Law: Essays in Honour of Glanville Williams,[41] said this about the historical distinction between aiders and abettors and principals, resting on presence or absence from the commission of the crime:
Presence was interpreted very broadly. A person who was many miles away could be regarded as ‘constructively’ present if he was assisting at the time of the commission of the offence; so that the test, in substance, was one of time rather than place.[42]
[41]1978.
[42]Ibid p126.
So, in the present case, if presence had been required, it could not be said, in our opinion, that the applicant was necessarily not present only because at some stage he was not in the room of the house where the victim was then being beaten, as distinct from being in the house. Perhaps, depending on the circumstances, the same might be said of a time when he had left the house. But those matters do not need to be canvassed. They would only arise if the charge was defective and if it became necessary to consider what order the Court should make.
Because there was no defect in the charge, the second matter addressed under cover of this ground does not require consideration.
Ground 3
The Direction
The judge directed the jury as follows:
The law says if someone [counsels or procures] another to commit an offence then they will be equally guilty of that offence, regardless of the fact that they did not commit the crime themselves. This is one of the situations where the law holds the person responsible for the actions of other people.
In order for Dimitrios Likiardopoulos to be guilty of committing murder by counselling and procuring, there are three elements, each of which the Crown must prove to your satisfaction beyond reasonable doubt. The first element the Crown must prove is that someone committed the offence of murder, that somebody murdered Christopher O'Brien, and throughout these directions I will call that person, that is the person who committed the offence of murder, whoever that be, the principal offender.
The second element the Crown must prove is that the accused knew or believed in the essential circumstances needed to establish the crime of murder.
The third element the Crown must prove is that the accused intentionally assisted or encouraged the principal offender to commit murder.
Before you can find Dimitrios Likiardopoulos guilty of murder by counselling or procuring, you must be satisfied of all of those three elements beyond reasonable doubt. Now, I will explain them to you in more detail.
The first element is that the Crown must prove that someone committed the offence of murder. This requires you to be satisfied that all of the elements of the crime of murder have proved beyond reasonable doubt, in respect of the acts performed by the others, and it does not matter if it is one or all of them or any number of them. This is looking at the acts performed by the others.
That is, the Crown must satisfy you that whomever performed those acts, the principal offender, killed Mr O'Brien by a conscious, voluntary and deliberate act done with the intention of either killing him or inflicting really serious injury to him, and done without lawful justification or excuse.
The second element which the Crown must prove is that the accused knew all of the essential circumstances needed to establish the offence of murder, or believed that those essential circumstances existed. The essential circumstances that are needed to establish murder are: that the principal offender or offenders, being the persons who committed the acts or acts on Mr O'Brien, had at least the intention to really seriously injure him and, as I said, they performed those acts consciously, voluntarily and deliberately, and without lawful justification or excuse.
The accused does not need to know or even believe that death will result from those acts. It is sufficient if he knew that the principal offender, that is, the person or persons who committed those acts was going to commit those acts which, ultimately, caused death and he knew that with the necessary state of mind; that is, that he intended that the acts be inflicted with the intention of really serious injury.
The Crown says here that you would be satisfied that he knew those principal offenders were going to commit those acts; that is, that they were going to administer the severe beating to Christopher O'Brien and that they were going to do so with the intention to inflict really serious injury, because he was present at the time when that was being done.
The third element which the Crown must prove is that the accused intentionally assisted or encouraged the principal offender to commit murder, and in this case it is that the Crown alleges that Mr Likiardopoulos did this by what is called ‘counselling and procuring’. A person counsels or procures the commission of an offence if he urges, advises or solicits the principal offender; that is, the actors, the people performing the acts, to commit the offence. Or he encourages or supports him or them to commit it, and this can be done by words or actions or both; and for this element to be met, you do not need to be satisfied that Mr Likiardopoulos's words or actions caused the principal offender to commit the crime. A person can counsel or procure someone to commit an offence even if the other person already intended to commit that offence. You follow?
So even if any of the actors intended to inflict really serious injury to Christopher O'Brien, if you are satisfied that Mr Likiardopoulos's words and actions by directing them, exhorting them, encouraging them, telling them to strike Mr O'Brien, to hit at Mr O'Brien; if you are satisfied that those words encouraged them to commit the offence, then that is sufficient for the purposes of counselling and procuring, irrespective of whether the actor intended to do it themselves in any event.
You also do not need to be satisfied that the principal offender was actually assisted or encouraged by the accused's behaviour. As long as the accused endeavoured to assist or encourage him, in the circumstances where the principal offender, that the actor or actors could potentially have been assisted or encouraged, then this element will be met. In other words, you do not have to be satisfied that they were, in fact, encouraged or egged on by Mr Likiardopoulos because, as it says, they may have been going to do it themselves, in any event. You only have to be satisfied that it was his intention to encourage and assist them to inflict really serious injury to Mr O'Brien.
But you must be satisfied that Mr Likiardopoulos intentionally counselled or procured the commission of murder; that is, you must be satisfied that by saying and doing what he did he intended to assist and/or encourage the principal offender to commit the offence. That does not mean that you should find that Mr Likiardopoulos intended that Mr O'Brien should die; this element is satisfied if you find that the accused intended to assist or encourage the actors to commit the conduct which, ultimately, caused death. So assisted or encouraged; that is - and this is where the Crown relies upon him - directing, telling the ringleader, [the prosecutor] has described him, assisting or encouraging those that were performing the acts on Mr O'Brien; that he was assisting and encouraging them to perform those acts. He does not have to intend that that conduct, ultimately, caused Mr O'Brien's death.
In this case, it is alleged that Mr Likiardopoulos counselled or procured the actors to commit murder by exhorting, directing and encouraging and urging them to do acts with the intention of causing really serious injury to Mr O'Brien. It is only if you are satisfied beyond reasonable doubt that Mr Likiardopoulos intentionally or assisted or encouraged those people who were assaulting Mr O'Brien to commit those acts with the intention of really causing serious injury to Mr O'Brien, by counselling and procuring the commission of that offence, that that element will be met.
So to summarise, before you can find the accused guilty of committing murder by counselling and procuring, the Crown must prove to your satisfaction beyond reasonable doubt that someone committed murder; that the accused knew or believed in the essential circumstances needed to establish the crime of murder and that the accused intentionally assisted or encouraged the principal offender or offenders to commit murder by counselling or procuring the commission of that crime.
Those directions accorded with the Bench Notes and Charge contained in the Victorian Criminal Charge Book.
In our opinion, for the reasons which follow, each aspect of ground 3 should be rejected.
Paragraph (a)
Paragraph (a) of ground 3 asserts that the judge erred by directing the jury that the applicant need not know or believe that death will result from the acts of the principal(s). Applicant’s counsel submitted that the jury should have been charged that the applicant ‘must be shown to have intentionally counselled or procured the principal(s) to assault the deceased knowing or believing that the actions of the principal(s) would cause death.’ The actus reus, counsel submitted, was not just the assault(s) but assault(s) causing death. Counsel relied upon a passage in the judgment of Wilson, Deane and Dawson JJ in Giorgianni v The Queen.[43] He referred also to passages in judgement in the non-homicide cases of Yorke v Lucas,[44] Edwards v The Queen[45] and McGhee v The Queen.[46]
[43](1985) 156 CLR 473, 506–507.
[44](1985) 158 CLR 661, 667 and 676.
[45](1992) 173 CLR 653, 658.
[46](1995) 183 CLR 82, 85–86 (Brennan J).
Counsel for the Crown responded that the argument was a variation on a theme unsuccessfully advanced in cases such as R v Le Broc.[47]He further submitted that authorities in Victoria,[48] New South Wales[49] and England[50] did not support the applicant’s contentions. The actus reus was the beating. Legal consequences flowed from the result of the beating – that is, death.
[47](2000) 2 VR 43, [56]–[63].
[48]R v Vollmer [1996] 1 VR 95.
[49]R v Stokes and Difford (1990) 51 A Crim R 25.
[50]R v Powell; R v English [1999] 1 AC 1 and R v Rahman [2009] 1 AC 129.
Paragraph (a) addresses what the judge described as the second element of the counselling or procuring way in which the prosecutor put its case. The question raised by the applicant is this: what were the essential circumstances of the offence of which the applicant must have had knowledge? Specifically, was it enough that he knew or believed that the principal(s) must commit assaults with an intention of doing the victim really serious injury? Or must he have known or believed that the action of the principal(s) would in fact cause death.
In our opinion, the former of those alternatives is the correct one. As we have said, applicant’s counsel relied principally upon a passage in the judgment of Wilson, Deane and Dawson JJ in Giorgianni v The Queen[51] which he unsuccessfully called in aid in R v Le Broc.[52] The passage is as follows:
For the purposes of many offences it may be true to say that if an act is done with foresight of its probable consequences, there is sufficient intent in law even if such intent may more properly be described as a form of recklessness. There are, however, offences in which it is not possible to speak of recklessness as constituting a sufficient intent. Attempt is one and conspiracy is another. And we think the offences of aiding and abetting and counselling and procuring are others. Those offences require intentional participation in a crime by lending assistance or encouragement. They do not, of course, require knowledge of the law and it is necessary to distinguish between knowledge of or belief in the existence of facts which constitute a criminal offence and knowledge or belief that those facts are made a criminal offence under the law. The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence. He need not recognize the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it. It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which he is assisting or encouraging are such, whether he realizes it or not, as to constitute the factual ingredients of a crime. If that were sufficient, a person might be guilty of aiding, abetting, counselling or procuring the commission of an offence which formed no part of his design. Intent is required and it is an intent which must be based upon knowledge or belief of the necessary facts. To the extent that Reg v Glennan suggests the contrary, it is not, in our view, in accordance with principle and does not correctly state the law.[53]
[51](1985) 156 CLR 473, 506-507.
[52](2000) 2 VR 43, 61 [57].
[53]Footnote omitted.
The facts of the case, and the direction given by the trial judge, need to be understood. They were as follows:
On 18 May 1979 a truck, leased by Guiseppe Giorgianni and driven by his employee, one Renshaw, collided with other vehicles when its brakes failed, causing the death of persons in them. Giorgianni was not present at the time of the collision. He was charged with culpable driving causing death pursuant to ss. 52A and 351 of the Crimes Act 1900 (N.S.W.). At his trial in the District Court before Judge Torrington and a jury, there was evidence that Giorgianni and Renshaw had worked on the truck about ten days before the accident, and that they had noticed nothing wrong with the brakes. But there was police evidence, based on the defective condition of the brakes after the collision, from which it could be inferred that a person who had worked on the vehicle ten days before would, or at least should, have noticed those defects. In the course of his charge Judge Torrington said that the prosecution had to show that Giorgianni ‘knew when he procured the use of the vehicle by Renshaw on 18 May the brakes were defective and could fail and could constitute driving in a manner dangerous to the public or he acted recklessly not caring whether the facts existed or not’.
The reference to ‘recklessness’ in the passage cited by appellant’s counsel thus had a particular import. The question was whether, as Gibbs CJ put it:
… is it necessary to prove that the person sought to be made liable as a secondary party had knowledge of all essential facts, or is it enough to prove that he should have had knowledge of those facts or that he acted recklessly not caring whether those facts existed or not?[54]
[54]Our emphasis.
The application of the passage relied upon by applicant’s counsel has been considered in a number of subsequent authorities.
Applicant’s counsel sought to link reference to ‘attempt’ in the passage cited from Giorgianni with the statement by Brennan J in McGhee v The Queen[55] that ‘an attempt to commit a crime must have, as its mental element, an intention that death be caused.’ Since ‘attempt’ and the offences[56] of ‘aiding and abetting and counselling and procuring’ were themselves treated as analogous in the cited passage in Giorgianni, it was said to follow that the Crown must show, in a case of aiding and abetting, that the aider and abettor knew that the ‘forbidden result’ – in the present case, death – would result.
[55](1995) 183 CLR 82, 85–86.
[56]Whether the s 323(1) Crimes Act basis for establishing the liability of an offender should now be described by use of the word ‘offences’ need not be considered.
There was, with respect, no particular logic in that submission, ingenious though it was. As with other aspects of the submission made under cover of paragraph (a), it would yield the result, if accepted, that proof of guilt of murder of an aider and abettor would face a higher test than the test for guilt of a principal offender. Counsel accepted that this would be a ‘form of asymmetry’. He sought to justify it by a submission that it ‘strikes an appropriate correlation between legal responsibility and moral culpability’. In our opinion, the suggested rationalisation lacks merit.
Counsel for the applicant next relied on Yorke v Lucas.[57] There, the question was what was required to be proved in order that a person be held to have aided, abetted, counselled or procured a contravention of s 52 of the Trade Practices Act 1974 (Cth). In a business sale, the vendor had misrepresented turnover and profit. The trial judge found that the corporate selling agent had unwittingly contravened s 52. He dismissed a claim against the selling agent’s managing director, holding that the man had made every proper enquiry and had no reason to suspect that information which he provided to the purchaser was incorrect. The purchaser’s appeal against judgment in favour of the managing director failed. The judgment of Mason ACJ, Wilson, Deane and Dawson JJ, referring to reliance upon the aider and abettor position, said this:
a person will be guilty of the offences of aiding and abetting or counselling and procuring the commission of an offence only if he intentionally participates in it. To form the requisite intent he must have knowledge of the essential matters which go to make up the offence whether or not he knows that those matters amount to a crime.[58]
and –
If par. (a) of s. 75B imports the requirements of the criminal law, it is clear in the light of Giorgianni v. The Queen that [the director] could only be brought within that paragraph if he intentionally aided, abetted, counselled or procured a contravention by the Lucas company of s. 52 of the Trade Practices Act. Upon the findings of the trial judge, however, [the director] lacked the knowledge necessary to form the required intent. A contravention of s. 52 involves conduct which is misleading or deceptive or likely to mislead or deceive and the conduct relied upon in this case consisted of the making of false representations. Whilst [the director] was aware of the representations — indeed they were made by him — he had no knowledge of their falsity and could not for that reason be said to have intentionally participated in the contravention.[59]
[57](1985) 158 CLR 661.
[58]Ibid 667.
[59]Ibid 667–668.
Their Honours held, we add, that the aider and abettor sub-section should be given its criminal law meaning.
We understand the reference to ‘intentionally’ aiding and abetting in the second passage to be explained by the requirement, expressed in the first passage, that to be guilty of aiding and abetting by intentional participation is meant participation with knowledge of the essential matters which go to make up the offence.
Counsel relied, however, upon a passage in the judgment of Brennan J. Speaking of what Wilson, Deane and Dawson JJ had said in Giorgianni, his Honour stated –
Their Honours confine the requirement of intention, and thus the requirement of knowledge, to ‘the commission of the acts which constitute’ the offence. Another question, which their Honours considered earlier in their judgment, is the requirement of intention in a secondary participant with respect to the result of the acts which constitute the offence when the occurrence of the result is an element in the offence — e.g., death in the crime of involuntary manslaughter. Whether a secondary participant is criminally liable in all such cases without knowledge of the result if the offence is so defined that knowledge or foresight of the result is not required of the principal offender is a question which does not now arise.[60]
[60]Ibid 676.
There was cold comfort for the applicant in the passage relied upon. The position which Brennan J held was expressed in the language ‘whether … in all such cases’.
Counsel relied next upon Edwards v The Queen.[61] A company director was charged with making improper use of his position to cause detriment to a company. Another man was charged with being knowingly concerned in the director’s conduct. The relevant provision concerning the second man was s 38(1) of the Companies and Securities (Interpretation and Miscellaneous Provisions) (Western Australia) Code, which provided –
A person who aids, abets, counsels or procures, or by act or omission is in any way directly or indirectly knowingly concerned in or party to, the commission of an offence against any relevant Code shall be deemed to have committed that offence and is punished accordingly.
[61](1992) 173 CLR 653.
The second man was convicted. His appeal to the High Court succeeded because the trial judge had not directed the jury that the accused knew that the director’s purpose was to cause the company detriment. That purpose was an element of the offence preferred against the director, and so was an ‘essential element’ of which the appellant must have known. A direction that the appellant had to know that the director’s conduct would cause detriment was not the same as a direction that he had to know that the director had a purpose of causing detriment.
The distinction was a fine one. But it was logically possible that the director’s conduct would cause the company detriment though that was not the director’s purpose; and the High Court had decided in Chew v The Queen[62] that purpose to cause detriment was the gist of the director’s offence.
[62](1992) 173 CLR 626.
In our opinion, there is nothing in Edwards which assists the applicant. It represents a conventional application of statutory construction.
Counsel for the Crown relied upon R v Le Broc,[63] a case concerning the offence of recklessly causing serious injury. One of the ways in which the matter was put against the applicant was that he had aided and abetted a co-offender to commit the offence. The Court rejected the submission that the applicant must have known or believed that the assault would in fact result in serious injury.[64] That was not the mental element of the offence viewed from the standpoint of the principal offender. No graver mental element must be within the knowledge or belief of the aider and abettor. Yet the applicant’s contention in the present case, if accepted, would require proof of knowledge not simply of an intention sufficient to make out murder if death ensued, but of a consequence of conduct done with sufficient intent.
[63](2000) 2 VR 43.
[64]Ibid, 62-64, [56]-[61].
The Court noted in Le Broc that -
in manslaughter and culpable driving cases it is not necessary to show knowledge on the part of the aider and abettor that death (or grievous bodily harm) would result.[65]
[65]Ibid 62, [58].
Mason J, and Wilson, Deane and Dawson JJ, made observations to that effect in Giorgianni.[66] Whilst the impact of statute in the case of culpable driving means that the proposition must to an extent be qualified, Le Broc supports a conclusion that it is enough that an aider and abettor knows that the principal is doing an act with an intent which will, by combination of act and intention, make out the offence if the consequence of death ensues.
[66](1985) 156 CLR 473, 495 (Mason J), 502–503 (Wilson, Deane and Dawson JJ).
R v Stokes & Difford,[67] cited in Le Broc, does not assist the applicant’s argument either. It concerned a man found guilty as an accessory, by aiding and abetting, of maliciously inflicting grievous bodily harm.
[67](1990) 51 A Crim R 25.
We need only refer to a few passages in the judgment of Hunt J (with whom Wood and McInerney JJ agreed). His Honour said that the Crown must establish, inter alia –
(3)that (subject to an exception which I discuss later) the accused knew all the essential facts or circumstances which must be established by the Crown in order to show that the crime was committed by the principal offender (whether or not the accused knew that they amounted to a crime) …
He then observed that –
Although some of the older authorities suggest that the accused need be aware of only the physical acts done by the principal offender, it is now clear that he must be aware also of the existence of any state of mind on the part of the principal offender which must be established by the Crown to show that the crime was committed by him.
The exception to which I have referred in the third proposition is discussed in Giorgianni at 502-503; 184. The required intention and knowledge of the accessory does not extend to the consequences of the principal offender's act.
and –
In relation to an accessory to the crime of maliciously inflicting grievous bodily harm without intent, therefore, the Crown must establish (in addition to the commission of that crime by the principal offender) that such accessory present at the time (aiding and abetting) knew or was aware:
(i)of the principal offender's intention to do the act which caused the grievous bodily harm (but not that it would in fact cause such harm), and
(ii)that that act would be done by the principal offender maliciously.
And, having discussed the content of ‘maliciously’ –
Accordingly, what the Crown had to establish in relation to Difford's state of mind as an accessory was:
(1) that Difford knew (or was aware):
(a)of the intention of [the principal offender] to hit [the victim], and
(b) that [the principal offender]:
(i)intended thereby to inflict some physical injury upon [the victim], or
(ii)realised the possibility that some such injury might result but he nevertheless intended to go ahead and hit [the victim]; and
(2)that, with that knowledge, Difford intentionally assisted or encouraged [the principal offender] to commit the crime of maliciously inflicting grievous bodily harm upon [the victim].
Counsel for the Crown also relied upon the English authorities which we mentioned at footnote [50]. They were not directly relevant.
Paragraph (b)
Paragraph (b) contends that the judge erred by directing the jury that the alleged acts of counselling or procuring need not in fact cause or even encourage the principal(s) to commit the offence. Applicant’s counsel submitted that ‘a counsellor or procurer’s behaviour must in some sense be causative of the principal’s crime’. He relied upon the statement by Professor Sir John Smith in Reshaping the Criminal Law: Essays in Honour of Glanville Williams,[68] that ‘procuring’ requires causation, by contrast with ‘counselling.’
[68]1978.
Counsel for the Crown submitted that Sir John Smith’s essay, in which the author differentiated between the concepts of ‘abet’ and ‘counsel’ on the one hand, and ‘procure’ on the other, did not represent the law in this country. He referred to R v Russell,[69] R v Wong & Ors[70] and Giorgianni v The Queen.[71] He cited also R v Lam and ors,[72] and referred to Archbold’s Criminal Pleading Evidence and Practice,[73] and Smith and Hogan, Criminal Law.[74]
[69](1933) VLR 59, 77 (Cussen ACJ).
[70](2005) 202 FLR 1 (Kellam J).
[71](1985) 156 CLR 473, 493 (Mason J).
[72](2005) 159 A Crim R 448, 472 [76], at first instance; and on appeal, (2008) 185 A Crim R 453, 477 [89].
[73](2010), para 18-20 – 18-24.
[74](12th ed), 2008, pp202 and following.
Paragraph (b) addresses a direction which the judge gave with respect to the third matter that the Crown needed to prove to establish the applicant’s guilt in reliance upon s 323(1) of the Crimes Act. The gist of what her Honour said was that this aspect could be made out even if the particular offender already intended to commit the offence – that is, intended to assault O’Brien with intent to cause him really serious injury.
In his essay in Reshaping the Criminal Law, referring to the words ‘aid’, ‘abet’, ‘counsel’ and ‘procure’, Sir John Smith stated, having referred to the ordinary meaning(s) of those words -
So defined, the meanings overlap and there seems to be little distinction between ‘abet’ and ‘counsel.’ ‘Procure’ stands apart in that it requires a causal connection. One may give help, support or assistance, or incite, instigate, encourage or advise without producing any result. A person advised to commit a crime has been none the less ‘counselled’ (in the ordinary use of the word) to do it because he rejects the proffered advice. The use of ‘procure’, however, seems inapt unless the result is actually brought about. This was accepted in Attorney-General’s Reference where the court said ‘You cannot procure an offence unless there is a causal link between what you do and the commission of the offence.’
A first difficulty with that approach is that, in Australia, the collocation of words now found in s 323(1) of the Crimes Act 1958 (Vic) – ‘aids, abets, counsels or procures’ – have been held to convey a single, composite concept. That was what Cussen ACJ said in R v Russell[75] albeit that his Honour did not refer to ‘procuring’ amongst the verbs which he mentioned.
[75][1933] VLR 59, 66–67.
His Honour’s statement was referred to with approval by Mason J in Giorgianni v The Queen.[76] That approval was in turn cited by Redlich J in R v Lam.[77]
[76](1985) 156 CLR 473, 492–493.
[77](2005) 159 A Crim R 448 [19].
A second difficulty is that in, Lam, Redlich J ruled[78] (and this Court agreed)[79] that it was unnecessary for the prosecutor to prove that the act or acts there relied upon to establish aiding and abetting in fact assisted or encouraged the principal in the first degree to commit the offence.[80]
[78][77]–[78].
[79](2008) 185 A Crim R 453, 477 [89].
[80]Which was not to say that encouragement, as distinct from assistance, could be unknown to the principal.
Redlich J did identify cases in other jurisdictions which had given a different answer to the question whether causation must be established. But they were indiscriminate as to whether the person charged was alleged to have aided, abetted, counselled or procured the principal offender. Thus, although they stand for requiring encouragement in fact, they were incompatible with the distinction drawn by Sir John Smith.
Applicant’s counsel submitted that Lam left open the question whether a causative element was required when ‘procuring’ was relied upon by the Crown. So to submit involved, as we see it, the contention that what Australian courts have held to be the unity conveyed by verbs ‘counsel’, ‘procure’, ‘aid’ and ‘abet’ is incomplete. There is no warrant for such a conclusion. The verbs have been said to have a particular meaning in the criminal law; assuming the availability of a dictionary meaning of ‘procure’ to different effect, it does not touch the meaning which is relevant for present purposes.
For completeness, we should mention the passages in Archbold and Smith and Hogan to which counsel for the Crown referred us. We agree with the submission of applicant’s counsel that in part the former does not assist the Crown’s argument. It represents the English position, which as we have said is not on all fours with the position in Australia. The latter is not, in our view, of clear assistance to either party.
Because of the view we take as to the state of the law concerning the required knowledge of one who counsels or procures a principal offender, it is unnecessary to consider whether the reference in the judge’s charge to assistance and encouragement by ‘counselling and procuring’, rather than by to ‘aiding and abetting’ was apposite.[81] If it was not, it could only have been worse for the applicant.
Paragraph (c)
[81]The old distinction between conduct antecedent to the commission of the offence (counselling or procuring) and conduct at the time of commission of the offence (aiding and abetting) may be outmoded.
Paragraph (c) contends that the judge erred by leaving ‘this derivative form of liability for murder’ when none of the alleged principals had been convicted of that offence; and when, indeed, the Crown had accepted guilty pleas to lesser offences by those persons. Counsel contended that whilst it is true that an accused found not guilty of murder in his own trial may be regarded as having been guilty of that offence in the trial of another, the Court ‘should not tolerate a murder conviction sustained in … circumstances’ where the Crown had presented a case ‘based in part on an allegation that [the applicant] had counselled or procured others to commit murder … when none of the alleged principals had been convicted of murder and indeed the Crown had accepted pleas of guilty from those other offenders to offences other than murder.’ He described what the Crown had done as ‘an abuse of process’. Counsel acknowledged that the decision of the Privy Council in Hui Chi-ming v The Queen[82] appeared to stand in the way of his submissions. But he sought to distinguish that decision on the basis that here the Crown had accepted pleas to lesser offences, whereas in Hui Chi-ming the jury had returned a verdict of manslaughter in the case of the main offender. He submitted also that Hui Chi-ming was presented as what would be called in Australia a case of extended common purpose; not as a case of counselling or procuring.
[82][1992] 1 AC 34.
Counsel for the Crown argued, to the contrary, that Hui Chi-ming could not be meaningfully distinguished. He also referred to the judgment of McHugh J in Osland.[83]
[83]R v Osland (1998) 197 CLR 316, 345 [78].
The first matter which the Crown had to prove, to establish the counselling or procuring way in which it put its case, was that one or more of the others had murdered the victim. In circumstances where it could not be shown who had inflicted the fatal wound(s), or when, the Crown sought to satisfy the jury simply that some act or acts by the others, done with intent to cause really serious injury, had caused the death. That some act or acts had done so was inescapable. Thus, from a factual standpoint, the only issue was whether the Crown could prove relevant intent.
Central to the applicant’s argument in this Court was the proposition that the Crown should be denied the opportunity of proving the only real question in dispute. It should not have been allowed to put its case on a counselling or procuring basis at all, because it had accepted pleas of guilty by the others who had taken a leading role in the beating to offences which required a lesser mental element. As we noted earlier, the submission was founded upon an asserted abuse of process.
No argument was raised at trial that the counselling or procuring way of putting the Crown case involved an abuse of process, and should not be permitted. No argument was raised that the pleas to manslaughter and assault offences meant that the Crown could not lead evidence in an attempt to prove that one or more of the particular offender(s) had murdered the victim.
Although failure to take a point at trial is not fatal where the point is shown to be a good one, it has often enough been said by this (and other) appellate courts that failure to take a point at trial may well say something about its likely substance. That, in our opinion, is the situation here.
There is, we think, no doubt that had John Likiardopoulos and/or Aydin and/or Singh gone to trial, and been found guilty of manslaughter, the applicant could nonetheless have been later presented on a count of murder; and an attempt could have been made to prove his guilt, inter alia, by assertion that he counselled or procured the others to commit that offence. Whether that could have been established would have depended upon the evidence admissible against the applicant. There may be contrasted the remarkable situation in Surujpaul v R,[84] discussed by Callinan J in Osland v The Queen,[85] where in the one trial all five accused (including the appellant) were acquitted of murder but the appellant was found guilty of being an accessory before the fact to murder.
[84](1958) 1 WLR 1050.
[85](1998) 197 CLR 316, 406 [233].
The question, then, is whether the Crown’s acceptance of pleas to lesser offences by the others was a decisive consideration, so as to constitute the applicant’s trial an abuse so far as the Crown relied upon a particular means of proving guilt.
We cannot agree that it was. Hui Chi-ming v The Queen[86] stands in the way. There, a group of six men, one of whom was armed, ‘went looking for’ a man who had attempted to intimidate the girlfriend of one of the men. They found the wrong man, but that did not stop the armed offender from bashing the wrong man to death. The Crown presented four of the men, including the attacker, on counts of murder. The attacker was found guilty of manslaughter, two others pleaded guilty to manslaughter and their pleas were accepted, and one was acquitted by direction. Then the applicant and a sixth man were charged - initially with manslaughter, but later with murder. The Crown accepted a plea to manslaughter by the sixth man. The appellant refused an opportunity to plead to manslaughter, went to trial and was found guilty of murder. The case against the appellant, as with the cases against the other men, were founded on what would be called, in Australia, the principles of extended common purpose.
[86](1992) 1 AC 34.
On appeal, it was submitted for the appellant that –
‘The decision of Crown counsel to substitute the original charge of manslaughter with a charge of murder was oppressive and an abuse of the process of the court in the following circumstances: (1) the primary party had been acquitted of murder and convicted of manslaughter; (2) the pleas of the three other participants, of guilty to manslaughter, had been accepted by the Crown; (3) there was no evidence that the [defendant] had played any particular part or struck any particular blow in the incident; (4) Crown counsel was at all times prepared to accept a plea from the [defendant] of guilty to manslaughter; (5) the only reasonable inference to be drawn from (1) to (4) above, is that the purpose of charging the [defendant] with murder was to put unfair pressure upon the [defendant] to plead guilty to the lesser charge; (6) the [defendant] in advancing his defence of non-participation, was unfairly put at risk of a conviction of a capital offence; (7) the result is that the [defendant] has been sentenced to death, while his co-accused, including the primary party, received merely prison sentences varying between three and six years.’[87]
[87]Ibid 54.
It was further submitted that the trial judge, or the Hong Kong Court of Appeal, though not requested to do so, ought to have intervened to prevent an abuse of its procedure.
Lord Lowry, speaking for the Judicial Committee, expressed these conclusions:
Having reviewed the facts, their Lordships find no aspect of the case which can credibly be described as an abuse of process, that is, something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all respects a regular proceeding. There can be no suggestion that the defendant was the victim of a plea bargaining situation since he did not plead guilty to the lesser offence. There was no sign of fraud or deceit and, as between the Crown and the defendant, the charge was fair.
Their Lordships recognise that it would be permissible to ask whether the Crown should have persisted in seeking a verdict of guilty of murder when a finding of manslaughter would have produced equality among the accused. There seem to be two answers. One is that, provided the case was conducted with propriety, it is difficult to see how the judge could properly have intervened to prevent counsel from seeking or the jury from returning a verdict which was justified by the evidence. The other answer is that, if it was not an abuse to indict and prosecute for murder, it could scarcely be an abuse to seek a verdict which was justified by the evidence.
That a serious anomaly occurred cannot be denied, but
‘As long as it is possible for persons concerned in a single offence to be tried separately, it is inevitable that the verdicts returned by the two juries will on occasion appear to be inconsistent with one another.’ Reg. v. Andrews-Weatherfoil Ltd [1972] 1 W.L.R. 118, 125, per Eveleigh J.[88]
[88]Ibid 57.
Counsel sought to distinguish Hui Chi-ming on the footing that in that case joint criminality was alleged, rather than criminal liability for counselling and procuring an offence. He submitted, as we understood it, that alternative verdicts were available in the first situation, but that it was otherwise where an accused’s guilt was based upon counselling or procuring an offence. He also submitted that it was significant that here the Crown had accepted pleas to manslaughter, whereas in Hui Chi-ming the attacker had been found guilty of manslaughter. His argument was, as we understood it, that the Crown had adopted an inconsistent position with respect to the others on the one hand and the applicant on the other.
In our opinion the first point of distinction was no point. Different verdicts are possible not only in the case of joint offenders but also in the case of a joint offender and an accessory.
The second point of distinction disappears when one has regard to the matters raised on Hui Chi-ming’s behalf. The appellant relied not only upon the attacker having been acquitted of murder, but also upon the fact that the Crown had accepted pleas of guilty from three others.
We should add three matters. First, there was ample evidence to support the applicant’s conviction so far as it rested upon another, or others, having murdered O’Brien. That is so despite the fact that, faced by difficulties of proof in respect of individual offenders, the Crown was prepared to accept pleas of guilty to lesser offences by those other persons. Second, the abuse of process was said to consist of permitting the Crown to argue its case in a particular way; not that there was an abuse of process in presenting the applicant on a count of murder. There was even less reason than in Hui Chi-ming to conclude that an abuse of process was made out. Third, emphasising the point just noted, it was not contended for the applicant that it was an abuse of process for the Crown to have argued its case (as it did) on the footing of joint criminal enterprise.
The Director’s appeal
The Director of Public Prosecutions appeals against the sentence passed upon
Dimitrios Likiardopoulos, pursuant to s 567A of the Crimes Act 1958.[89] He contends that the sentence and non-parole period are manifestly inadequate in all the circumstances.
[89]Section 567A was repealed pursuant to s 422(4) of the Criminal Procedure Act 2009 (as amended by s 54(h) of the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009). The repeal was effective as of 1 January 2010, but it left unaffected appeals against sentences which were imposed before that date. Sentence was passed upon Dimitrios Likiardopoulos on 5 June 2009 and this appeal was commenced by the Director by notice of appeal filed 30 June 2009.
We have already described the general circumstances of the offending. We need only add a little more in that connection.
First, as to the respondent’s personal acts of violence, there was evidence that he inflicted two ‘king hits’ on O’Brien (which, on the evidence of Aydin and Singh, caused a tooth to come out on each occasion),[90] that he punched his victim in the mouth which caused bleeding, and that he kicked him. On the evidence of Paul Gavagan, an associate of the respondent, the latter laughed about having knocked out a tooth.
[90]This was corroborated by the forensic pathologist’s evidence that two of O’Brien’s teeth were missing (see R v Likiardopoulos [2009] VSC 217, [11]).
Second, Gavagan gave evidence that he implored the respondent to let O’Brien go, stating, ‘You’re going to kill this kid, mate’. He gave evidence that O’Brien’s appearance was then as follows:
All his teeth were knocked out. He had a laceration from his neck here right through to his chin. He was just bruised all down his leg. His face was out, his eyes were dilated that bad, you could see what was coming.
We turn to the respondent’s personal circumstances. He was 49 years of age at the time of sentencing and had 16 prior matters and convictions from five court appearances. On 2 June 2006, he had been sentenced to a total effective sentence of 12 months’ imprisonment for being a prohibited person in possession of an unregistered firearm and possession of a drug of dependence, and nine summary offences; 248 days of that sentence had been suspended for 18 months. He was thus serving a period of suspension when he committed the murder.
The respondent’s prior criminal history, apart from a conviction for common assault, did not involve any offences of violence. The sentencing judge considered that his prior convictions were of limited significance.
A pre-sentence report was provided by Dr Anthony Cidoni, consultant psychiatrist at Forensicare. Tendered on behalf of the respondent were two reports by Ms Carla Lechner,[91] a report by Dr Adam Deacon, consultant psychiatrist at Forensicare,[92] and the respondent’s medical history.
[91]Dated 20 March 2006 and 13 April 2009.
[92]Dated 5 April 2006.
The reports revealed that the respondent’s family life had been unhappy, marked as it was by his father’s physical abuse. The respondent had a very limited education, having left school in Year 8 at the age of 15. He had worked in a number of unskilled positions and had come to Melbourne at the age of 18 and worked at Dunlop Tyres for 12 months. Over the years, the respondent had moved between Victoria and South Australia and worked at various jobs, his last job finishing, it appears, some nine years before being sentenced for the murder of O’Brien. At the time of offending, he was in receipt of a disability pension.
The respondent was married for 20 years. The marriage produced three sons, two of whom, John and Con, were involved in this affair. He had a daughter by another relationship. That child was aged nine at the time of sentencing.
According to Ms Lechner’s 2006 report, the respondent presented with a dual diagnosis of clinical depression and marijuana dependency, he used marijuana to self-medicate and, from a clinical perspective, he required psychiatric review and management.
In her 2009 report, Ms Lechner assessed the respondent as being in the low average/borderline range of verbal intelligence, with approximately 91 per cent of the adult population performing better. In her view, the respondent was a concrete and utilitarian thinker with a tendency to interpret the world around him in an egocentric subjective manner. The respondent gave a history of suicidal ideation, with attempts from an early age, and episodic depression. He reported in April 2009 to Ms Lechner that he was a regular user of marijuana since the age of 27 and that, before being remanded for the instant offence, he was using about three grams of marijuana per day.[93] He also reported using amphetamine and heroin intermittently.
[93]Although he reported a usage of up to 5 grams per day to Dr Cidoni.
Ms Lechner considered that the respondent presented with symptoms consistent with a diagnosis of clinical depression and that he had features of a borderline personality disorder.
Dr Deacon reported in 2006 that the respondent appeared moderately to severely depressed and that he required ongoing psychiatric review.
Dr Cidoni concluded, in 2009, that the respondent presented with a history consistent with a depressive disorder best described as a dysthymic disorder with co-morbid anxiety which fitted the pattern of generalised anxiety disorder. In his opinion, the respondent had borderline personality traits such as impulsivity, mood instability and anger, related to his history both of abuse as a child and poly-substance abuse. Both Dr Cidoni and Ms Lechner reported that the respondent was at risk of suicide and that his anti-depressant medication should be re-established.
We turn to the judge’s sentencing remarks. Her Honour took into account in the exercise of her sentencing discretion the fact that the respondent had been diagnosed as suffering depression and anxiety, that both Ms Lechner and Dr Cidoni considered that he required psychiatric review to stabilise his mood, and that he was at risk of suicide.
Consistently with the case which the Crown had presented, her Honour sentenced the respondent, not on the basis of an intention to kill but on the basis of the lesser intention of causing really serious injury. Nevertheless, she considered that ‘the circumstances in which Christopher O’Brien met his death make this a serious example of the most serious of offences’, describing it as:
a brutal, callous, merciless beating and assault culminating in death, which occurred over a protracted period of time, perpetrated on a totally innocent, vulnerable and defenceless intellectually disabled young man in circumstances which must have been terrifying and frightening for him and where no humanity, decency or compassion was shown to him.
Further, it was a homicide ‘in circumstances totally devoid of any humanity, compassion or moral compass’.
Her Honour took into account the ‘cruel way’ with which the respondent directed the body to be dealt with after death as compounding his culpability, as did the fact that the offence was committed during the operational period of a suspended sentence.
She noted that the respondent had not expressed any remorse, maintaining that he was not involved in the assaults, and she concluded that his prospects for rehabilitation ‘must be said to be qualified.’
The judge referred to a number of Victim Impact Statements, observing that they spoke of
the tragedy of [Christopher O’Brien’s] cruel and untimely death and the disposal of his body which consequently deprived [the family] of laying his body to rest.
In sentencing the respondent to 20 years’ imprisonment with a non-parole period of 17 years, the judge took into account the fact that at the age of 49 the respondent would be serving a substantial period of imprisonment and that he was said to be at risk of suicide in prison. She also took into account the respondent’s unhappy early life, limited education, limited verbal IQ, depression and anxiety. She further took into account the sentences imposed upon the respondent’s co-offenders, in particular, his son, John, and Aydin (who both pleaded guilty to manslaughter, the latter receiving a substantial discount for his considerable cooperation with the police).[94]
[94]He gave evidence in the applicant’s trial. John Likiardopoulos did not do so.
The judge said to the respondent:
Any sentence I impose must serve to punish you and act in denunciation of your conduct and signal to other members in the community that such conduct is totally unacceptable in a civilised society and will always be met with stern punishment. Any sentence imposed must also serve to specifically deter you from re-offending.
Because of the substantial term of imprisonment imposed, consideration of principles of totality, and the need to avoid the imposition of a crushing sentence, the sentencing judge did not order any cumulation of the sentence upon the restored balance of the suspended sentence which the respondent was by then serving.[95]
[95]See above, [3].
The Director appeals on the basis that the sentence and non-parole period were manifestly inadequate. He contends that the sentencing Judge
(1) failed sufficiently to punish the [respondent] to an extent which is just in all the circumstances;
(2) failed sufficiently to deter the [respondent] or other persons from committing offences of the same or a similar character;
(3) failed sufficiently to manifest the denunciation by the court of the type of conduct in which the [respondent] engaged;
(4) failed to have sufficient regard to the maximum penalty prescribed for the offence (that being life imprisonment);
(5) failed to have sufficient regard to the nature and gravity of the offence (including the fact that although the victim was 22 he had an intellectual age of 14), and in particular, failed to fix a sentence commensurate with the characterisation of the offence as a ‘very bad example’;
(6) failed to have sufficient regard to the [respondent’s] culpability and degree of responsibility for the offence;
(7) failed to have sufficient regard to the impact of the offence on the victims (O’Brien’s family);
(8) failed to have sufficient regard to aggravating features of the offending and in particular:
· the defenceless and vulnerable nature of the victim;
· the brutal, callous and merciless assault inflicted on O’Brien leading to his death;
· the prolonged period of offending, extending into a third day;
· the sustained nature of the assaults;
· the absence of any mercy from the [respondent] when he learned that his co-offenders further brutalised O’Brien;
· the [respondent’s] role in both participating in the attacks and encouraging others to assault O’Brien;
· the lack of remorse displayed by the [respondent] following the assaults;
· the [respondent’s] role as an instigator of the assaults;
· the [respondent] being the controlling and dominant force, the ‘head honch’, who instructed others, in wanton disregard of the body, to dispose of it, and ordered the removal of any incriminating forensic evidence; and
· the offence was committed while the [respondent] was on a suspended sentence;
(9) gave too much weight to mitigating factors concerning the [respondent], in particular:
· the diagnoses of depression and anxiety;
· the risk of suicide in the prison environment; and
· matters personal to the [respondent].
The notice of appeal does not complain of specific error.
The submission for the Director was in substance that although the sentencing Judge referred to, and took into account, all of the relevant considerations, and in particular each of the aggravating features of the offending, the sentence which her Honour imposed did not reflect the assessment she made that the offence was ‘totally devoid of any humanity, compassion or moral compass’. Whilst the judge correctly characterised the murder as one where the circumstances made it a ‘serious example of the most serious of offences’, the sentence imposed was not commensurate with that characterisation.
Counsel for the Director argued that as the murder involved the prolonged torture, humiliation and degradation of an innocent and helpless victim (all of which were recognised by the judge, as the Director acknowledged), the case was a more serious example of a prolonged assault leading to death than that found in R v Franklin,[96] where the offender was sentenced to 20 years’ imprisonment for the murder in similar circumstances of a 14-year-old boy.
[96](2001) 3 VR 9 (appeal against conviction).
Reliance was also placed by the Director on R v Beckett,[97] one of the worst examples of murder found in this State. There, the Court of Appeal upheld a life sentence with a minimum of 35 years for a prolonged series of rapes followed by murder. Beckett’s co-accused, Camilleri, was sentenced to life imprisonment with no minimum term.[98]
[97][1998] VSCA 148.
[98]R v Camilleri (2001) 119 A Crim R 106.
Reliance, again, was placed upon the sentences passed in R v Andrakakos and Arkan,[99] and to remarks made by Ormiston JA on the appeal in those matters.
[99][2003] VSCA 170.
As this Court recently re-emphasised in Hudson v The Queen,[100] a day after the High Court published its judgment in Hili v The Queen,[101] there is considerable inhibition upon the use of, and usefulness of, so-called ‘comparable cases’ and ‘worst cases’ in an appellate (and indeed in a trial) context.
[100][2010] VSCA 332 [27]-[37] and [38]-[39].
[101][2010] HCA 45.
The Director’s submissions, with respect to Franklin, were in our opinion at least unhelpful, if not impermissible. His submissions with respect to Beckett and to Andrakakos and Arkan were even less useful.
These conclusions may be illustrated by reference simply to the sentences passed on Beckett and Camilleri. They committed offences which involved the abduction, multiple rapes and ultimately the intentional and barbaric slaughter of two teenage girls. They were sentenced on the footing that they had intended to kill their victims. We do not accept the Director’s submission that, in a murder such as this, the fact that the applicant’s intent was not to kill or cause the death of O’Brien but to cause him really serious injury can make little discernible difference to moral culpability. It was for the Crown to choose whether to allege an intention to kill or a lesser intention.
Under the legislation which determines the fate of this appeal, the circumstances in which this Court should allow a Director’s appeal are confined. The threshold is a very high one for the Director to meet.
No point of general principle was identified by the Director. The matter turns on alleged manifest inadequacy of sentence. But it cannot be said, in our opinion, that the sentence imposed was so disproportionately inadequate as to shock the public conscience. Indeed, we consider that the sentence does not go close to demonstrating manifest inadequacy. Nor does it reveal any inconsistency in sentencing standards. To the extent that sentencing statistics are useful, they are incompatible with the submission for the Director.[102] Even if a heavier head sentence had been imposed, we add, a non-parole period of 17 years would have been well open to the sentencing judge in all the circumstances
[102]They show that the most common sentence imposed for murder in Victoria in the period 2003-2004 to 2007-2008 was 18 years’ imprisonment and that the median term was 19 years’ imprisonment. Further, the non-parole period of 17 years imposed by the judge is higher than the 15 years median period. Again, the non-parole period of 17 years was 85 per cent of the head sentence.
In our opinion, the appeal should be dismissed.
Application by John Likiardopoulos to appeal against sentence
The applicant fully participated in the prolonged physical abuse that caused O’Brien’s death and added his own touches by forcing the victim to drink toxic substances taken from under the kitchen sink and eat chilli flakes and wielding a hammer with which he struck the victim’s spine, neck, elbows and ankles. The pathologist who examined the remains of the deceased found a large number of fractures to the right and left scapulae, a number of vertebrae and a number of ribs. John Likiardopoulos and Aydin disposed of the corpse.
The marriage of the applicant’s parents broke up when he was 14 years’ old. The applicant resided with his father. The applicant left school in year 10. He worked as a market gardener, car detailer and security guard. The applicant began drinking at about the age of 15 years and used cannabis and ice. The applicant had prior convictions from the Children’s Court, which the sentencing judge described as ‘not significant’.
A report by a psychologist was tendered in the course of the plea. The psychologist said that the applicant was a man of good intellect and was not psychotic. The psychologist observed that the applicant ‘has extremely strong feelings of loyalty to his father’ and ‘would not accept any suggestion that his father had had a negative influence on him’.
The grounds of the application are as follows:
The learned sentencing judge erred by failing properly to synthesise, and attaching insufficient weight to, the:
(a) appellant’s youth; and
(b) fact that, and extent to which, the appellant’s offending was influenced, and overseen, by his father.
The sentencing remarks show that his Honour was conscious of the matters now relied upon by the applicant. He also took into account the plea of guilty and that the applicant’s behaviour on remand demonstrated some prospects of rehabilitation. As to the applicant’s youth, the sentencing judge said:
Of course it is relevant that at the time of this offending you were 19 years of age and thus a youthful offender. Normally considerable significance is accorded to that fact but this is one of those occasions when it must, to some extent … give way to the achievement of other objectives of the sentencing law … Whilst consideration, indeed special regard, is allocated to youthful offenders, the nature of the conduct of the offender and the crime committed are of greater importance. However, I have not dismissed your youth as a consideration. This, though, is an offence where general deterrence must be emphasised and whilst I have taken account of your youth, I consider that given the nature of your conduct the sentence cannot be significantly reduced because of it.
His Honour described the applicant’s conduct in the following terms:
I have struggled to think of a worse case of manslaughter. Your conduct over the extended two-day period was nothing short of cowardly, disgusting and brutal … but for your plea of guilty and the other matters in your favour to which I have referred, I would have imposed a significantly heavier sentence for this conduct leading as it did to the death of an innocent person.
As to the influence of Dimitrios Likiardopoulos, the sentencing judge said:
The evidence suggests that the person who oversaw this offending and who controlled the attempts to conceal it was your father, Dimitrios Likiardopoulos. However, beyond the issue of that relationship, this form of manslaughter is, in my opinion, in the worst category and you played a significant role in the cause of Christopher O’Brien’s death.
Counsel for the applicant submitted that the sentence was significantly higher than the average or median sentence for manslaughter: indeed, but for two other cases,[103] it was the sternest head sentence ever imposed for the offence of manslaughter in Victoria. The most common head sentence for the offence of manslaughter was seven years and the most common non-parole period was five years. He submitted that those statistics, taken together with recognition that the species of manslaughter here was manslaughter by unlawful and dangerous act, invited close scrutiny of the sentence imposed and raised the question of what discernible measure of mitigation was attached to the applicant’s youth.
[103]R v McMaster [2007] VSC 133 and R v AB (No 2) (2008) 18 VR 391.
As we have said in our reasons for disposing of the Director’s appeal, using what are described as ‘worst cases’ as a starting point and comparing the circumstances of those cases to the present case is to be deplored. Comparable cases at best are a general guide. A particular sentence is the result of the exercise of a judicial discretion in which the circumstances of the offence and the character and antecedents of the offender are of central importance.
In our opinion, his Honour’s treatment of the applicant’s youth and the influence of his father was appropriate in the light of the circumstances of the offending. The imposition of a sentence slightly more than half the maximum sentence for this crime was not manifestly excessive. As Batt JA said in Director of Public Prosecutions v Lawrence:[104]
[W]ith an instance of [an offence] as grave as this one, the offender’s youthfulness and rehabilitation, achieved and prospective, whilst not irrelevant in the instinctive synthesis which the sentencing judge must make, were of much less significance than they would have been with a less serious offence. As has been said, youth and rehabilitation must be subjugated to other considerations.
[104](2004) 10 VR 125, 132.
Accordingly, we would dismiss the application for leave to appeal against sentence.
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