McEwan v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0229
STEPHEN McEWAN	Applicant
v
THE QUEEN	Respondent
S APCR 2012 0244
JAMES ROBB	Applicant
v
THE QUEEN	Respondent
S APCR 2012 0283
NORMUNDS DAMBITIS	Applicant
v
THE QUEEN	Respondent

---

JUDGES	REDLICH, COGHLAN JJA and DIXON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	11–12 September 2013
DATE OF JUDGMENT	20 December 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 329
JUDGMENT APPEALED FROM	[2012] VSC 417 (Kaye J)

---

CRIMINAL LAW – Murder – Conviction – Joint criminal enterprise – Three applicants convicted of murder, defensive homicide and manslaughter respectively – Whether verdicts inconsistent – Whether verdicts unsafe and unsatisfactory – Whether trial judge erred in failing to direct the jury that if one applicant to the agreement was acting in self-defence, another applicant could not be convicted of murder – Whether the applicant convicted of defensive homicide could have been party to the acts causing death – Open to the jury to find the applicants guilty of three different offences because of a different intent or a defence special to themselves – Verdicts explained by each applicant’s involvement in the offence – No withdrawal – Osland v The Queen (1998) 197 CLR 316; White v Ridley (1978) 140 CLR 342 applied – Leave granted – Appeal dismissed.

CRIMINAL LAW – Sentence – Defensive homicide – Whether manifestly excessive in light of applicant’s courageous conduct and personal circumstances – Whether trial judge erred in finding that applicant convicted of manslaughter had physically participated in the assault – Creamer v The Queen (2012) 221 A Crim R 284 – Leave to appeal refused.

---

Appearances:	Counsel	Solicitors
For the Applicant McEwan	Mr D Grace QC with Mr Z Zayler	Melasecca Kelly Zayler
For the Applicant Robb	Mr L C Carter	C D Traill Lawyers
For the Applicant Dambitis	Mr D A Dann	Turnbull Lawyers
For the Crown	Mr P B Kidd SC with Mr P Doyle	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA

COGHLAN JA
DIXON AJA:

The applicants, Stephen McEwan, Normunds Dambitis and James Robb all pleaded not guilty in the Supreme Court to the charge of murdering Scott Shaw. After a 41 day trial, the jury found McEwan guilty of murder, Dambitis not guilty of murder but guilty of defensive homicide, and Robb not guilty of murder but guilty of manslaughter.

McEwan was sentenced on the charge of murder to 16 years and six months’ imprisonment, with a non-parole period of 12 years and six months. Dambitis, on the alternative charge of defensive homicide, was sentenced to 11 years’ imprisonment with a non-parole period of eight years’ imprisonment. Robb, on the charge of manslaughter, was sentenced to eight years’ imprisonment with a non-parole period of five years and six months.

Each of the applicants seeks leave to appeal against their conviction. For the reasons that follow we would grant leave on a number of grounds but would dismiss each appeal against conviction. That the jury returned different verdicts for each applicant illustrates the fact, if proof be required, that juries are capable of following relatively complex instructions in dealing with difficult factual questions of complicity and intent which called for careful analysis of the evidence in order to draw sound and sophisticated distinctions between the roles of the applicants.

It was the Crown’s case that each of the applicants, as a party to a joint criminal enterprise, disarmed and then participated in a brutal assault on Shaw, in the course of which he sustained severe head injuries. The applicants’ appeals primarily require consideration of the following three questions. First, whether it was open to the jury to be satisfied in each applicant’s case that he inflicted, or was complicit in the infliction, of the fatal injuries to the victim. Second, whether the judge adequately directed the jury as to the principles of joint criminal enterprise. Third, whether the different verdicts against each applicant were open and consistent, as the jury must have found by their verdicts that each applicant had a different state of mind at the time the fatal injuries were inflicted. Fourth, whether the acts of one applicant after the others had departed the scene could be attributed to the other applicants.

At the beginning of the hearing of the appeal McEwan abandoned grounds of appeal 2 and 4 and Dambitis grounds 2 and 3. The remaining appeal grounds pursued are as listed in the applicants’ notice of appeal.

The Crown case

The facts of this case require a detailed exposition.

On 12 September 2009, Shaw, aged 24, was driving home in a blue Commodore with his friend Troy Broughton from a fishing trip in Western Port Bay and Phillip Island. They had been drinking alcohol and consuming cannabis. Shaw was later found to have a blood alcohol content of 0.14–0.16 and cannabis in his blood.

As they were driving they saw two 17 year-olds on Lawless Drive, Cranbourne North. They exited the car and either Broughton or Shaw punched one of the boys in the face. As they drove up the road to the corner of Lawless Drive and Huon Park Road, they approached two 15 year old boys, Jacob Wellington and Chris Stilo, who were soon joined by a third boy, Tipene Wellington, aged 16. Shaw got out of his car and attempted to punch Tipene Wellington, who fought back. Shaw called out to Broughton to ‘get the machete out of the car’. Shaw armed himself with the machete and chased the boys as they fled towards Lawless Drive and hid in the bushes.

The applicants, along with their friends Burgess and Gillespie, had attended a 50^th birthday party nearby. McEwan was 37 at the time of the offence, Dambitis was 39 and Robb was aged 50. They were all travelling in McEwan’s red Chrysler when, upon reaching the intersection of Huon Park Road and the South Gippsland Highway, they saw Shaw chasing and swinging a machete at the boys. They drove towards the altercation, and one of the men in the car yelled out words to the effect of ‘Leave them alone’. Shaw ran towards the vehicle and struck the passenger side of the Chrysler two or three times with the machete.

Stephen Rowe was with the Wellingtons and Chris Stilo. He saw the incident with Tipene Wellington and the people in the blue Commodore. He then saw a red car arrive and a lot of people get out of that car. They appeared to be in their 20s. He saw the guys from the red car near the blue car and one of them yelled ‘Get out of the fucking car you little shit or I’ll fucking kill you’. The guys in the red car had baseball bats or pieces of wood and were hitting the blue Commodore. Mr Rowe could describe two of the men in the red car, one had a crew cut and the other had a buttoned up white shirt and blondish hair.

McEwan was the only one of the applicants to give evidence. McEwan gave evidence that as he opened the driver’s side door, Shaw ran towards him with the machete, raised it in the air and began chasing him. He said that a man, presumably Broughton, appeared with a fishing rod and hit him across the back. As they wrestled, the fishing rod broke, leaving McEwan holding half. Shaw swung the machete at him again and then ran off towards the highway. McEwan, followed by Dambitis and Robb, set off after Shaw. As Shaw ran across the southbound lanes of the highway, he accosted two cars, while still holding the machete. Both drivers sped off through a red light away from him.

A bus was travelling on the South Gippsland Highway towards the intersection of Huon Park Road. CCTV footage from the bus captured the next sequence of events. The footage showed Shaw move in front of the bus and wave it down. The driver applied the brakes and moved into the left-hand turning lane. Once the bus came to a stop, Shaw could be seen brandishing the machete. McEwan was moving quickly a few seconds behind him, holding part of a fishing rod, and Dambitis followed soon after, holding a lump of wood. Eyewitnesses had observed a man breaking a branch from a tree at the side of Huon Park Rd near the South Gippsland Highway intersection. At this point Robb could be seen following the group, but trailing some distance behind.

Shaw turned, then disappeared from view proceeding along the driver’s side of the bus towards the rear, followed by McEwan and Dambitis. Dambitis then returned to the front of the bus and moved towards its passenger side. The window in the front door of the bus could be heard breaking as Dambitis approached the front left-hand corner of the bus. Immediately after the sound of breaking glass, Robb, who was by then in front of the bus, lifted his right arm and threw a beer can. Dambitis and Robb then disappeared from view on the passenger side, moving towards the rear of the bus. The bus was driven forward a short distance before stopping.

The CCTV footage showed that a short time after the applicants Dambitis and Robb were last seen on the passenger side of the bus moving in the direction of the rear of the bus, there was some discernible movement of persons leaving the scene in the direction from which Dambitis and Robb had come. Some seconds then elapsed between those persons leaving the scene and another figure departing the scene, at which point the bus driver alighted from the bus.

Footage from inside the bus showed the only two passengers, Kahlee Sawyer and Nicole Merriman. After the window was broken, figures could be seen through the windows of the bus moving quickly down the outside of the bus towards the rear. Merriman asked, ‘What happened?’. Sawyer replied, ‘Smashed him, bro’. Merriman asked, ‘Who smashed him?’. The Crown contended that Sawyer then replied, ‘Them, them three’. The trial judge directed the jury that what they heard was a matter for them.

The attack on Shaw was also witnessed by the bus driver, Kevin Hillyer. Hillyer’s evidence was that he saw a group of people, all with weapons, chasing a person. The person being chased was caught and dragged to the ground. He said that ‘four or five people’ kicked him while he was on the ground and hit him in the head with weapons. Hillyer later identified McEwan as one of the attackers from a photoboard. According to Hillyer, all of the attackers ran off when Hillyer got out of the bus, except for McEwan, who was still bashing the deceased’s head.

The remaining attacker stopped and ran into the bushes. Hillyer yelled, ‘Don’t go too far’.

Merriman made a statement that was read to the jury. She said that she saw the deceased run at the door at the front of the bus. He banged on the front doors and then ran to the back of the bus, then another guy followed him and smashed the front door of the bus. She ran to the back of the bus and saw three guys, all in their 20s, standing over the deceased, laughing and hitting Shaw with weapons and their fists.

Sawyer gave evidence that she saw three people running after two people. Of the two people, one went around the bus and the other went to the front of the bus and tried to get on. The three pursuers all ran down the same side of the bus. The guy who tried to get on the bus ran down the side of the bus and the three people, including the person with the baseball bat, hit him. He fell down instantly. After that, they hit him constantly. The three guys circled and hit him with a pool stick, a baseball bat and a fishing rod. She could not describe the men hitting the deceased, but said they were all over the age of 18.

Karem Lopez saw the assault on Shaw from her car, which was stationary in Huon Park Road. She heard a man screaming and she looked over and saw a guy trying to get on the bus. He was hitting the front door. She saw three other guys near the bus. One had a bottle in his hand and he raised it, but she did not see him throw it. She heard glass smashing. The guy being chased ran to the shoulder of the road and stopped. The three guys following him then hit him and he dropped to the ground. The lights changed, Ms Lopez turned right and as she drove past she saw the guy lying on the ground. One person, with blonde hair, was looking in the pockets of the guy on the ground. The others had gone.

Dael Caulcutt was in a car being driven by Lisa Wiley down South Gippsland Highway when they stopped behind the bus, which had its hazard lights on. She saw a gentleman in a white hooded top run from what appeared to be the front of the bus into the bushes and down South Gippsland Highway towards the city. She then saw two or three others wearing dark clothing and running as a group from the same spot but down Huon Park Rd. Another person was running about five to ten seconds behind the group. After seeing the last man running, Caulcutt saw the deceased on the ground.

A broken piece of fishing rod was found next to the deceased, which had the deceased’s blood on it and McEwan’s DNA. A piece of wood was found underneath Shaw when he was turned on his side, and a fragment of wood was found in his nostril. A large piece of wood was found on the grass verge, near the fishing rod and near where the victim lay.

The Crown also relied on evidence of flight by the three applicants as demonstrating consciousness of guilt. Hillyer gave evidence that the three assailants ‘took off’ after the assault and ran through the grassland to the left of the highway. Caulcutt saw three men running south down the highway and turn left into Huon Park Rd. Sawyer saw two attackers go one way while a third went a different way, but they all met up and jumped in a dark coloured car on Huon Park Drive.

Burgess gave evidence that McEwan and Dambitis were running back to the car when he saw them return. Robb arrived back to the car first and was walking when Burgess saw him. Burgess said that after getting in the car, McEwan told his friends ‘not to talk about this to anybody’. The Crown relied on this statement as evidencing a consciousness of guilt.

As part of their defence, Dambitis and Robb raised the possibility that a man named Clayton Foelmli was responsible for the murder of Scott Shaw. A witness named Sharni Clark gave evidence that Foelmli had told her he had been in a fight on the night in question and that the man he hit was in a coma. She concluded from Foelmli’s description of his victim that it was Shaw, and she accused him of being responsible. According to Clark, Foelmli threatened her not to go to the police and told her he was going to New Zealand.

In his evidence, Foelmli denied being involved. He said he had been involved in a fight at the Robin Hood Tavern in Frankston, which had resulted in his cousin getting ‘dropped’ during the fight. A friend, Bobby Tai, gave evidence that he dropped Foelmli off at the Robin Hood tavern that night. The Crown’s case was that there was simply no evidence to contradict Foelmli’s alibi, no evidence linking him with the assault on Shaw or placing him anywhere near the vicinity of that assault on the night in question.

Shaw was airlifted to the Alfred Hospital after the assault. He sustained at least three applications of blunt force to the left side of the head with two consequent skull fractures. He sustained a substantial right side brain bleed, with significant pressure resulting in irreversible brain damage. He died six days later on 18 September 2009.

On 14 November 2009, McEwan was arrested at his premises and taken to the police station, and was then released without charge, pending further investigation. On 9 June 2010, he was again arrested and charged with the murder of Scott Shaw. Robb was arrested and charged with murder on 15 June 2010. Dambitis was later charged with murder on 21 June 2010.

At trial, McEwan gave evidence that after the confrontation with Shaw and Broughton at his car, he followed Shaw down Huon Park Road to the South Gippsland Highway. He did not know where Robb or Dambitis were at that time. His concern was to disarm Shaw, who was swinging the machete at passing cars. When Shaw reached the bus, Shaw headed along the driver side of the bus to the rear, around the back of the bus and along the passenger side of the bus towards the front. McEwan followed him about six to eight feet away. He testified that he saw two men in the bushed area. They were in their early 20s. One was wearing a white top. In cross-examination, McEwan said the two men he saw in the bushed areas were in the grassed area over towards the left of the highway. He did not see the two men move and could not say if they attacked the deceased.

McEwan saw Shaw take a swing at the bus door and smash it. McEwan said that Shaw ran at him and took a swing at him. The machete hit McEwan’s arm, causing him to drop the fishing rod. McEwan then punched the man with his left hand to the chin. The man fell to the ground and dropped the machete. A couple of seconds later he saw Dambitis, and then Robb and said ‘Let’s go’. He did not see Robb hit anyone, nor did he see any weapon in Dambitis’ hand or see him do anything physically to the deceased. They all headed back to the car. He said that he hit the man in self-defence because he was frightened he was going to be attacked again with the machete. McEwan denied having killed the deceased.

Robb and Dambitis did not call or give any evidence. As will be discussed further below, each of the applicants relied heavily on the fact that none of the eyewitnesses were able to identify Robb or Dambitis, and that the eyewitnesses believed the assailants to be young men in their 20s. Caulcutt, Sawyer and Merriman all believed that at least one of the assailants was wearing a hoodie. For Dambitis, it was also observed that he was a tall man — at least 6 foot 4, and yet none of the eyewitnesses had identified this salient feature of any of the attackers. Their defence was that it was not the applicants who had assaulted Shaw, and that it was someone else that had caused Shaw’s death.

Joint criminal enterprise

The applicants McEwan and Dambitis contend that the principles of joint criminal enterprise did not permit the jury to return different verdicts in their respective cases and that the trial judge failed to properly direct the jury as to those principles. Only a brief discussion of most of the relevant principles within the concept is necessary. It is now settled that complicity under a joint criminal enterprise will arise if the prosecution establishes the following:[1]

(1) That the accused has reached an agreement or understanding with one or more other persons to pursue a joint criminal enterprise that remained in existence at the time the offence was committed.
(2) That the accused participated in that joint enterprise in some way.[2]
(3) That in accordance with the agreement, one or more parties to the agreement performed all of the acts necessary to commit the offence charged, in the circumstances necessary for the commission of that offence.
(4) That at the time of entering into the agreement[3] the accused had the state of mind required for the commission of the relevant offence.[4]

[1]The principles are helpfully set out in the Victorian Criminal Charge Book, Bench Notes, [5.3.1].

[2]Likiardopoulos v The Queen (2012) 247 CLR 265; McAuliffe v The Queen (1995) 183 CLR 108. See also R v Morgan [1994] 1 VR 567; R v Franklin (2001) 3 VR 9; R v Lao & Nguyen (2002) 5 VR 129; R v Tangye (1997) 92 A Crim R 545; R v Cavkic [2005] VSC 182; Johns v The Queen (1980) 143 CLR 108. Cf Likiardopoulos v The Queen [2010] VSCA 344; Smith, Garcia & Andreevski v The Queen [2012] VSCA 5; Croxford v The Queen (2011) 34 VR 277.

[3]Osland v The Queen (1998) 197 CLR 316; Hui Chi-Ming v The Queen [1992] 1 AC 34; R v O’Flaherty, Ryan & Toussaint [2004] 2 Cr App R 20.

[4]R v Clarke & Johnstone [1986] VR 643; Johns v The Queen (1980) 143 CLR 108; McAuliffe v The Queen (1995) 183 CLR 108; R v Taufahema [2007] HCA 11; Likiardopoulos v The Queen [2010] VSCA 344; Arafan v The Queen [2010] VSCA 356.

If each of these matters is established, the actions of all parties to a joint criminal enterprise will be attributed to all other parties to that enterprise so that each person pursuing the joint criminal enterprise will be liable for the criminal acts of the others.[5] That will be so even though a party may not be present for the entire time all acts are committed by other parties to the enterprise in pursuance of the agreement.
[5]R v Clarke & Johnstone [1986] VR 643; Gillard v The Queen (2003) 219 CLR 1; R v Cox & Ors [2005] VSC 255; Osland v The Queen (1998) 197 CLR 316; McAuliffe v The Queen (1995) 183 CLR 108; Likiardopoulos v The Queen (2012) 247 CLR 265; Huynh v The Queen (2013) 295 ALR 624.

On the appeal, the question arose during argument whether at the time of the agreement the parties to the agreement must necessarily share the same intent or mens rea with respect to the acts that they agree or understand will be performed. It was accepted by the Crown and other parties to the appeal that proposition (1), though expressed in conventional terms,[6] was too narrow, in that it required the existence of a common intent by the participants. As will appear from the reasons that follow, this is not the occasion to resolve that question.
[6]See for example R v Lowery & King [1972] VR 560.

The fourth proposition is critical to much of the applicants’ arguments and necessitates further explication. Under that principle, the jury is required to separately ascertain whether the accused has agreed to acts which would constitute the offence and whether his agreement is accompanied by the necessary mens rea for the principal or some lesser offence. So long as the Crown establishes the accused’s continuing agreement to engage in particular 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, the accused may be convicted of the crime the subject of the joint enterprise. Where the participant has that necessary state of mind at the time of forming the agreement, it continues unless the accused withdraws from the agreement. A participant will not escape liability merely by leaving the scene shortly before the offence is completed, or by attempting to withdraw when it is too late to stop the offence.[7]
[7]White v Ridley (1978) 140 CLR 342; R v Whitehouse [1941] 1 DLR 683; R v Rook [1993] 1 WLR 1005.

In Osland v The Queen,[8] it was not in issue that Heather Osland’s son, David Albion, had struck the blow which killed the deceased. The Crown alleged that in doing so, Albion had acted in concert with his mother. Both accused relied on defences of self-defence and provocation. Osland was convicted of murder. The jury were unable to reach a verdict in respect of Albion. He was later retried and acquitted. McHugh J (Kirby and Callinan JJ agreeing) found there to be no inconsistency between the jury’s finding that Osland was guilty of murder, and the jury having had a reasonable doubt as to whether Albion had acted in self-defence. McHugh J provided an analysis of why a jury may convict one party to a joint criminal enterprise of one offence and another party of a lesser offence.[9] His Honour’s exposition of these principles was recently adopted by the High Court in Huynh v The Queen.[10] McHugh J said:

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. If any of those acting in concert but not being the actual perpetrator has the relevant mens rea, it does not seem wrong in principle or as a matter of policy to hold that person liable as a principal in the first degree. Once the parties have agreed to do the acts which constitute the actus reus of the offence and are present acting in concert when the acts are committed, the criminal liability of each should depend upon the existence or non-existence of mens rea or upon their having a lawful justification for the acts, not upon the criminal liability of the actual perpetrator. So even if the actual perpetrator of the acts is acquitted, there is no reason in principle why others acting in concert cannot be convicted of the principal offence. They are responsible for the acts (because they have agreed to them being done) and they have the mens rea which is necessary to complete the commission of the crime.[11]

[8](1998) 197 CLR 316.

[9]Osland v The Queen (1998) 197 CLR 316; R v Howe [1987] AC 417; R v Stewart; R v Schofield [1995] 3 All ER 159.

[10](2013) 295 ALR 294.

[11]Osland v The Queen (1998) 197 CLR 316, 350 [93].

Later in his reasons McHugh J observed:

Neither as a matter of law or logic is there any inconsistency in finding that David Albion was acting in self-defence or under provocation and at the same time acting pursuant to an understanding or arrangement. After all, the whole basis of their case was that they agreed to kill Frank Osland because that was the only way that they could defend themselves from the attack that they feared would kill one or both of them. Moreover, as I have pointed out, the doctrine of acting in concert permits the conviction of the person present at the scene even if the actual perpetrator is acquitted. Nor would there be any inconsistency in finding that David Albion was acting under provocation and acting pursuant to the agreement.
…
Nor is there any inconsistency in the jury failing to agree on whether David Albion was acting in self-defence while convicting Mrs Osland. His act or acts are consistent with him acting in self-defence and in accordance with the agreement or understanding even though Mrs Osland was not acting in self-defence when she entered into the understanding and was present at the scene while David Albion struck the fatal blow or blows. The jury's conviction of Mrs Osland was consistent with the trial judge's directions that they could convict Mrs Osland of murder even though they acquitted David Albion.[12]

[12]Ibid 360 [129]–[130].

There is no obstacle to a jury finding that two persons who are party to a joint criminal enterprise are guilty of different offences because one of them has a defence that is not available to the other or has a different mens rea or intent.[13] The other party may be guilty of the principal offence if that person has the relevant mens rea, the actus reus being attributed to him by reason of the agreement. It will not matter that another party cannot be convicted of that crime because he has a defence for some reason special to himself or lacks the necessary intent. It is the acts, not the crime, committed by another who was party to the joint enterprise, or the mens rea of that party, which is attributed to the other persons participating in the joint enterprise.[14] The jury must therefore separately assess the state of mind of each accused who is party to the joint criminal enterprise. The jury may find that parties to the joint enterprise are guilty of different offences because they have a defence special to themselves or have a different intent.
[13]Croxford v The Queen (2011) 34 VR 277, 292 [81] (Ashley JA and Ross AJA, Maxwell P agreeing).
[14]Oslandv The Queen (1998) 197 CLR 316, 344 [75].

McEwan — Conviction Appeal

Ground 5

The verdict of guilty on the charge of murder is unreasonable or cannot be supported having regard to the evidence; and in particular the verdict is inconsistent with the verdict of not guilty of murder but guilty of defensive homicide returned against the applicant’s co-accused, given the evidence and the way in which the prosecution case was conducted and the jury was directed.

The applicant McEwan submits that the verdict of guilty on the charge of murder was unsafe and unsatisfactory. Counsel for McEwan put the argument in two ways during the hearing. First, that the jury could not have been satisfied beyond reasonable doubt that it was the three applicants, and not someone else that had struck the fatal blows to Shaw. Second, that the verdict of guilty on the charge of murder was irreconcilable with the jury’s verdict in respect of Dambitis, who was found not guilty of murder but guilty of defensive homicide.

The first proposition — that the Crown could not exclude the hypothesis that persons other than the three accused inflicted the fatal injuries

In respect of the first basis for the contention that the verdict was unsafe, the applicant submits that in light of the evidence suggesting that other persons inflicted the injuries sustained by Shaw, it was not open to the jury to find beyond reasonable doubt that the acts causing death were perpetrated by the three applicants. In support of that contention, the applicant relied on the following evidence.

Hillyer claimed to see five or six people on the road, with one being chased by the others. During evidence-in-chief and under cross-examination, he maintained that there were four or five people assaulting the one man on the ground. He said that each of the assailants were holding weapons. He said that the assailants looked like ‘younger teenagers more or less, or early…20s’. In a previous witness statement, he had described the assailants as all young males, between 17–25 years old.

Caulcutt saw a man in a ‘white hoodie’ running from the front of the bus and into a treed area. She then saw two or three people running towards Huon Park Rd and then another person running 5-10 seconds behind. She could not tell much about the group, except that they were wearing dark clothing.

In Sawyer’s witness statement taken on the night of the incident, she described one of the attackers as 20 years old with blonde hair and a white hoodie and blue jeans. She said that another of the attackers was 20 years old with dark hair, wearing a dark top and pants with a pool stick. The third man was also 20, with dark hair, dark top and pants and carrying a fishing rod. She was unable to give evidence at trial as to the description of the three assailants, other than that they were men and all looked over the age of 18. During cross-examination, she agreed that there had been no man in a white hoodie with a baseball bat on the CCTV footage, but that the footage did not show everything she saw. She agreed that she had witnessed a very dramatic scene and could have been confused to some extent.

Merriman described the first assailant as about 26 years old, with a stocky build, bleached blond hair and wearing a dark jumper and jeans. The second attacker, who Merriman claimed was the person who smashed the window of the bus, was also stocky, was wearing a hoodie and baggy tracksuit pants or jeans and looked about 22 to 24 years old. The third attacker had dark hair or was wearing a hoodie and was holding either a pool cue or a fishing rod.

McEwan’s evidence was that he punched Shaw once on the chin, knocking him to the ground and causing him to drop the machete. He then said ‘Let’s go’ to Dambitis and Robb, and ran off into the bushes. McEwan testified that when he was at the back of the bus, he saw two people in the bushes in the grassed area towards the left. He described the two men as probably in their early 20s, one wearing a white top and dark coloured pants. He said he had seen these men when he was chasing the deceased. He noticed them on his left when he got to the corner of the passenger side of the bus.

Forensic officer Lisa Federle gave evidence of the DNA analysis she conducted on the fishing rod handle found near the bus. Federle stated that the DNA sampled contained a mixed profile of at least three contributors. Neither McEwan nor Broughton could be excluded as contributors of the DNA, but there was further DNA which would not be accounted for by either McEwan or Broughton but which could be accounted for by a third unknown person. The donors of each of the other reference samples, including Robb and Dambitis, were each excluded as contributors to that DNA. There was therefore strong evidence that the DNA on the fishing rod came from Broughton, McEwan and one other person.

In our view, it was open to the jury to find beyond reasonable doubt that the applicant was guilty of murder.[15] From the CCTV footage and McEwan’s own account, he, Robb, and Dambitis were at the scene chasing Shaw. While Hillyer believed there to be four or five people attacking the victim, he also identified McEwan as the last person to be assaulting Shaw after the other attackers had fled. The inconsistencies in the eyewitness accounts and the uncertainties in the DNA evidence do not in my view serve to cast doubt upon the jury verdict. The only evidence as to the possibility that other people had struck the fatal blows to the deceased was Hillyer’s evidence, the evidence of Merriman and Sawyer that the attackers were in their 20s and McEwan’s implausible assertion that there happened to be other people lurking in the bushes at the time Shaw fell to the ground next to the bus and that they emerged and attacked the deceased as soon as the applicants departed the scene. It was plainly open to the jury to reject this evidence.
[15]M v The Queen (1994) 181 CLR 487, 492–3.

The contention that the jury were bound upon the whole of the evidence to entertain a reasonable doubt as to whether McEwan attacked Mr Shaw by the bus and participated in the infliction of injuries to Mr Shaw which proved fatal, is without merit.

The second proposition — Inconsistency of verdicts of McEwan and Dambitis

The second strand of McEwan’s submission that the verdict was unsafe and unsatisfactory is as follows. The jury found that Dambitis was guilty of defensive homicide. The jury were not satisfied that the Crown had negatived a belief by Dambitis that an assault on Shaw with intent to kill or cause really serious injury was necessary for the purpose of defending McEwan or Robb, as distinct from himself. As Dambitis and McEwan were parties to a joint criminal enterprise, there was no reasonable basis for the jury to convict the applicant of murder in the face of its finding that Dambitis was not guilty of murder but guilty of defensive homicide. The applicant thus submits that as the evidence against the applicant and Dambitis was, in material respects, the same, the verdicts are inconsistent.

The principles governing a joint criminal enterprise to which we have earlier referred are relevant to this ground. Of particular relevance is the proposition that the participants to a joint criminal enterprise may be guilty of different offences either because a particular participant may have a defence available to him which is not available to other participants or because a particular participant may lack the requisite intent for the principal offence. The argument advanced by the applicant rested in part upon a misconception of this principle. However it was also contended under this ground that there was no factual basis for distinguishing between McEwan and Dambitis. It is this latter argument that we now turn to address.

In order to set aside a verdict on the ground that it is inconsistent with a verdict returned against a co-accused, it must be shown that they are an affront to common sense and cannot logically stand together. It must be shown that no reasonable jury applying their mind properly to the facts of the case could have arrived at the same conclusion. The respect which the law justly assigns to juries and the experience of the law that juries do follow directions to consider the case against each co-accused separately, means that the court is reluctant to find inconsistency unless the case is clear. Consequently, if there is some evidence sufficient to sustain the difference, the court is not inclined to substitute its own view for that of the jury.[16]
[16]Mackenzie v The Queen (1996) 190 CLR 348, 366–368; Fattal v The Queen [2013] VSCA 276, [36].

In this case, the different verdicts the jury reached in respect of McEwan and Dambitis are readily reconcilable. There was substantial evidence distinguishing McEwan’s role in the attack on Shaw from the role played by Dambitis. First, it is clear from eyewitness accounts and CCTV footage that McEwan led the pursuit of Shaw from the time the applicants exited Huon Park Rd until they reached the bus. Dambitis sought to run the argument of self-defence at trial on the basis that he was pursuing McEwan in order to protect him.

Second, the evidence strongly supported the inference that McEwan continued the assault on Shaw after Robb and Dambitis desisted and moved away. Hillyer, who recognised McEwan and identified him from a photobook, gave evidence that McEwan continued to ‘belt into the head’ of the deceased after the others had left. Other witnesses saw a sole attacker remain at the scene when the other assailants ran away.

Finally, there was evidence of post-offence conduct distinguishing McEwan from his co-offenders. When he returned to Burgess’ car, he told Burgess and the others in the car ‘not to talk about this to anybody’. The Crown relied on this as evidencing consciousness of guilt by McEwan alone. The jury were specifically directed that they could only use this evidence in the case against McEwan, and that they could use the evidence as showing that McEwan knew he had not been acting in self-defence. The jury, as they were properly directed to do, separately assessed each applicant’s mental state at the time of the offences. On the basis of the evidence distinguishing McEwan’s conduct from that of his co-offenders, the jury was entitled to conclude that Dambitis had, or may have had, a different state of mind to McEwan. They concluded on the evidence that Dambitis believed or at least may have believed, unreasonably, that it was necessary to do what he did in order to defend others. They were satisfied McEwan had no such belief.

The applicant submits that, as Shaw was waving the machete at McEwan and as McEwan was the only person under direct threat, his case for self-defence or defence of another was, if anything, more compelling than Dambitis’ case for self-defence. This submission fails to address the evidence that McEwan led the pursuit, continued to assault Shaw after Dambitis and Robb had ceased to attack him and departed. Shaw was then lying on the ground and was posing no threat. McEwan thereafter demonstrated a heightened consciousness of guilt in warning the others not to discuss the matter with anybody.

This ground of appeal is unsustainable. There is a body of evidence that permitted the jury to distinguish between McEwan and Dambitis. Consonant with the principles we have discussed, there was no error in law in the jury finding McEwan guilty of the principal offence and Dambitis guilty of defensive homicide.

Ground 3

The trial judge erred in failing adequately to direct on the elements of murder and leave the alternative verdict of defensive homicide by failing to direct that, unless the jury excluded the reasonable possibility that the conduct causing death was engaged in by a co-accused who held a belief that the conduct was necessary to defend himself or another from the infliction of really serious injury, none of the accused could have been convicted of murder.

The trial judge provided the jury with a chart outlining the necessary elements for murder, defensive homicide and manslaughter. The jury summary for murder was as follows:

In order that an accused be found guilty of murder (by engaging in a joint criminal enterprise), the prosecution must prove, beyond reasonable doubt, each of the following five elements in respect of that particular accused:
(1)That that accused was a party to an understanding or arrangement, with another accused or the other accuseds, to physically assault Scott Shaw, with the intention of killing Shaw, or causing him really serious injury; and that the accused remained a party to that understanding or arrangement, at the time at which the assault on Shaw took place.
(2)That at the time at which the particular accused became a party to that understanding or arrangement, that accused intended that Shaw be assaulted with the intention of killing him or causing him really serious injury.
(3)That the particular accused participated in the criminal enterprise to assault Shaw in that way, by taking a step or steps to further the carrying out of that assault.
(4)That in accordance with that understanding or arrangement, one or more of the parties to the understanding or arrangement, by a conscious, voluntary and deliberate act or acts, assaulted Shaw and inflicted the fatal blow or blows, which resulted in the death of Shaw.
(5)That in becoming, and remaining, a party to the understanding or arrangement, the particular accused did not believe that such an assault on Shaw was necessary for the purposes of defending himself, or another person or other persons, from the infliction of death or really serious injury.

As is further discussed below, in proposition (1) the element is expressed in conventional terms.[17] We do not need to resolve whether, in stating that the agreement or understanding must be to assault with the intention to kill or cause really serious injury, it went further than was necessary by requiring that each of the participants had a common murderous intent.
[17]See Lowery and King v The Queen [1972] VR 560.

The applicant McEwan submits that the trial judge erred by confining these directions on the joint criminal enterprise of murder and defensive homicide to the particular accused under consideration. The applicant contends that pursuant to the principles governing a joint criminal enterprise, the trial judge was obliged to direct the jury that if any of the applicants had a belief in self-defence, then that belief formed part of the scope of the agreement, such that none of them could have been convicted of murder. In essence, the applicant submits that where the jury was satisfied that Dambitis was acting in self-defence (albeit unreasonably), McEwan as party to the joint criminal enterprise was entitled to ‘the benefit’ of Dambitis’ state of mind.

The submission that the trial judge erred in his written instructions to the jury must be rejected. The argument again reflects a misconception of the principles we have discussed. In accordance with principle it was open to the jury to find that the applicant and Dambitis participated in a fatal assault on the deceased, that both did so with intent to kill or cause serious injury, and that the acts causing death were carried out pursuant to an understanding or arrangement between the applicants. Having found Dambitis guilty of defensive homicide, the jury were not bound to apply their reasoning as to Dambitis’ state of mind as to self defence ‘to the benefit’ of McEwan. A belief in self-defence on the part of a participant in the joint enterprise did not affect the agreement of the participants that Shaw be assaulted. The belief of Dambitis or his intent was not to be attributed to any other participant in the joint enterprise. The consequence of the existence of a joint criminal enterprise is only that the acts committed by each participant are then attributed to the other participants. There is no ascription to other participants in the enterprise of the crime committed by another participant or their intent or belief.

The trial judge specified in paragraph (1) of his written directions that the prosecution must prove that the understanding or arrangement was to physically assault Scott Shaw, with the intention of killing him or causing him really serious injury. Subject to the reservation we have expressed concerning proposition (1), the element obliged the prosecution to establish that the acts were to be committed with the intent to kill or cause really serious injury. His Honour correctly set out in direction (2) the intent which an accused must have possessed at the time of the agreement in order for them to be convicted of murder. His Honour would have been in error had he gone on to instruct the jury under element (4) that none of the joint participants could be convicted of murder if a party to the agreement who had inflicted injuries that might have caused death did not have a murderous intent or had a defence of self defence.

The applicant in his written case had advanced a variation of the argument developed on appeal. He relied upon the following passage from Osland v The Queen,[18] in which McHugh J said:

If there is any possibility in a joint trial that the accused whose acts caused the death was not, at the relevant time, acting pursuant to the understanding with the co-accused, it is ordinarily necessary for the trial judge to direct the jury in accordance with the principle of causation explained above [which declares that the accused person cannot be convicted of murder unless the co-accused whose act or acts caused the death was acting pursuant to the understanding or arrangement that together they would kill the deceased]. In such a case, the agreement or understanding between the accused is not causally connected to the death and the accused who did not perform the act or acts causing death cannot be held responsible for the killing.[19]

[18](1998) 197 CLR 316.

[19]Ibid 340 [66].

As we followed the written argument, the applicant contends that as Dambitis may have inflicted injuries which caused Shaw’s death, and as he was found to have a different state of mind to McEwan, he was not then acting pursuant to the understanding or arrangement with McEwan. That argument also suffers from a number of misconceptions as to principle. Firstly, the finding of defensive homicide meant that Dambitis did possess the necessary intent for murder. He was found to have the same intent as McEwan. As a matter of principle, the fact that the jury returned a verdict of defensive homicide in the case of one participant did not mean that another could not be convicted of the principal offence. Second, the issue of causation and the need for a direction in the sort of case to which McHugh J refers did not arise in the subject trial. Once the jury were satisfied that the death of Shaw was caused by the assault by the applicants, there was no reasonable possibility that the acts causing death were not carried out pursuant to the arrangement between the applicants. The issue at trial was never one of causation, or whether any of the applicants had acted beyond the scope of their agreement or understanding. The issue was only whether any of the applicants had participated in the fatal assault at all. It is presumably for that reason that none of the trial counsel representing any of the applicant sought a direction on causation from the trial judge. Counsel was correct to refrain from doing so.

This ground is unsustainable.

McEwan and Dambitis
Ground 1
The trial judge erred in his directions on murder and defensive homicide by joint enterprise by failing to direct that the jury must be satisfied that the conduct causing death was performed with an intention to kill or commit really serious injury.

Ground 1 of the appeals of McEwan and Dambitis are the same. Both applicants were content for this ground to be decided on the papers. The applicants submit that the trial judge erred in the written directions, the oral directions and the verdict chart provided to the jury on murder and defensive homicide by joint criminal enterprise, by failing to direct that the jury must be satisfied that the conduct causing death was performed with an intention to kill or cause really serious injury.

The trial judge first directed the jury as to murder simpliciter and gave the jury the very oral directions that are said to have been omitted. It was made clear that for an accused to be guilty of murder the prosecution must prove beyond reasonable doubt that at the time at which the particular accused performed the acts which caused the death of the deceased, the accused intended to either kill the deceased or cause him really serious injury. That direction was repeated more than once.

The Crown case as summarised in the charge was that the only conclusion available on the evidence was that the three applicants had jointly assaulted the deceased with the intention of killing him or causing him really serious injury. The prosecutor had submitted at some length in closing that the inference was inescapable from the conduct of each applicant that each applicant possessed a murderous intent at the time that the injuries which caused death were inflicted. The defences raised at trial were that none of the applicants inflicted any of the injuries that caused death. It was said that they left the scene after they had disarmed Shaw. It was not suggested at the trial that if any one of the applicants inflicted any of the injuries, the jury should not infer that they had the requisite intent.

Element (4) of the written directions on joint enterprise set out above and the element set out in the written directions on defensive homicide at element 1(d) were in the following terms:

in accordance with that understanding or arrangement, one or more of the parties to the understanding or arrangement, by a conscious, voluntary and deliberate act or acts, assaulted Shaw and inflicted the fatal blow or blows, which resulted in the death of Shaw.

Despite the way in which the trial was conducted and the oral directions that the jury were given, it is now said that the oral and written directions concerning joint criminal enterprise were deficient in that after the words ‘assaulted Shaw’, there should have been included the words ‘with the intention to kill or cause really serious injury’. Given the discrete evidence of McEwan’s role in the assault on the deceased, it was said that there was a real possibility that the jury considered that the acts of McEwan caused Shaw’s death and that he was then acting in pursuance of the joint criminal enterprise. In those circumstances, whether or not he was acting pursuant to a joint enterprise with the co-accused, it was essential that the jury understood that he could not be convicted of murder unless those acts were performed with an intention to cause death or really serious injury. By failing to so instruct the jury, the applicant submits that the prosecution was relieved of the obligation of proving a fundamental element of murder. The argument for Dambitis is put in the same way.

In the written summary of the elements of murder provided to the jury, the trial judge in defining the first element set out that the understanding or arrangement of the accused with another, was to physically assault Scott Shaw,

with the intention of killing Shaw, or causing him really serious injury, and that the accused remained a party to that understanding or arrangement at the time at which the assault took place (emphasis added).

In so defining the content of the agreement the judge emphasised the existence of the murderous intent by the particular accused at the time of the agreement and when the assault took place. Then, for the second element to be proved, the judge instructed that at the time of becoming a party to the understanding or arrangement, the particular accused must intend that the deceased be killed or really seriously injured. Element (3) required that the particular accused took steps to further the carrying out of the enterprise. The opening words of (4), ‘That in accordance with that understanding or arrangement…’, thus focus upon the agreed act or acts and the murderous intent intrinsic to the arrangement or understanding reached between the applicants. As we have said, even if the instruction in (1) was unduly favourable to the applicants by requiring that the agreement include a common murderous intent by all the participants, that error served only to focus the jury’s attention on the need for a murderous intent by the accused whose case the jury was considering.

The principles of joint enterprise require that the party to the joint enterprise whose case is being considered had the necessary intent at the time that the fatal injuries were inflicted. There must in that sense be a co-incidence of act and intent. If the party whose case is under consideration is the party who inflicted the injuries, he must have the necessary intent to be found guilty.

The absence of explicit reference to intent in element 4 was not an error. His Honour’s reference to the necessary intent in elements (1) and (2) meant that the jury would have understood that to be found guilty of murder or defensive homicide, the applicant whose case was being considered needed to have a murderous intent at the time the fatal blows were struck, regardless of who it was that struck those blows.

We would refuse leave to appeal on this ground.

Dambitis — Conviction appeal
Ground 4
The verdict of guilty on the charge of defensive homicide is unreasonable or cannot be supported having regard to the evidence; and in particular, the verdict is inconsistent with the verdict of guilty of murder returned against the applicant’s co-accused, given the evidence and the way in which the prosecution case was conducted and the jury was directed.

Dambitis contended in his written case that there was no reasonable basis for the jury to convict the applicant of defensive homicide in the face of the conviction of McEwan of murder. It was submitted that McEwan’s conduct was only distinguishable from his co-offenders at the point of time after Dambitis and Robb departed the scene. Thus the conviction of McEwan for murder must be based upon this continuing conduct when McEwan remained at the scene after the others can be seen to depart on the CCTV footage. As the jury found him guilty of defensive homicide and Robb guilty of manslaughter, the verdict of murder returned against McEwan could only have been based on McEwan’s continued assault after Dambitis and Robb had fled. Dambitis thus contends that McEwan’s conduct during those last seconds could not have been part of the joint criminal enterprise between McEwan and Dambitis.

This submission also involves a misconception as to the principles of joint criminal enterprise. Leaving aside our reservation about element (1), the jury were properly directed on the elements of joint criminal enterprise and withdrawal, which included the direction that all the acts of the other parties to the joint enterprise were to be attributed to Dambitis and that his state of mind had to be considered separately. Nothing in the verdicts the jury reached suggests that they confined their consideration of Dambitis’ culpability to those acts committed in his presence.

As discussed under cover of ground 5 of McEwan’s application for leave to appeal, there were a number of reasons why the jury could have concluded that whereas Dambitis may have had a belief in self-defence (which was either unreasonable or resulted in Dambitis responding with disproportionate force), McEwan had no basis for a belief that he was acting in self-defence. McEwan led the pursuit, continued to assault the victim after the others had left when the deceased was lying on the ground and warned the other applicants not to tell anyone what had occurred. Moreover, in Dambitis’ closing address, his counsel invited the jury to view the applicant as having joined in the pursuit of the victim out of concern for McEwan. It was well open to the jury to find that both McEwan and the applicant had participated in the assault on the deceased, but that Dambitis had a belief or might have had a belief that supported self defence.

In oral argument, counsel for Dambitis developed a variation of the argument as to why the conduct of McEwan in the last few seconds of the assault upon the deceased could not have been part of the joint enterprise. If the jury considered the final seconds to have formed part of the joint criminal enterprise, he argued that a verdict of defensive homicide would not have been possible, because the applicant could not have had a belief, even an unreasonable belief, in self-defence, once the applicant had been disarmed and severely beaten. The applicant submits that the jury must have reasoned that the criminal enterprise to which Dambitis was a party did not include those final seconds. As the jury could not have excluded the reasonable possibility that the blows causing the deceased’s death were struck by McEwan and that they did not form part of the joint criminal enterprise, the verdict of defensive homicide was unsafe because it wrongly attributed to Dambitis those acts of McEwan which likely caused the deceased’s death.

It can be seen that, again, the argument rests upon the assertion that the conduct of McEwan in those last seconds was not part of the joint enterprise and must have been so regarded by the jury. As the defences of all the applicants at trial was that the prosecution could not exclude beyond reasonable doubt the possibility that someone else inflicted the fatal blows, the issue of McEwan’s continuing conduct after Dambitis and Robb had fled was not a central question in the trial. Nonetheless, the prosecutor canvassed the issue of withdrawal in his final address, and the trial judge explained the principles of withdrawal to the jury as follows:

[The elements of joint criminal enterprise require] that the prosecution prove that the understanding or arrangement actually remained in existence when the offence in question was committed. So, if there is a reasonable possibility that a party had ceased to become or an accused had ceased to become a party to that understanding or that he had withdrawn from it, then that element will not be met.
In this respect — and I think [the prosecutor] touched on the topic of withdrawal briefly in his final address — you should bear in mind that in order to withdraw from a joint criminal enterprise to which an accused person is a party, by departing from the scene where a particular offence has been committed, an accused must before the offence is complete do more than simply leave. There must be a timely communication by that accused, either express or implied, to the other parties to the enterprise that the accused is thus dissociating himself from the further commission of the offence. So it's no good simply just to leave. If you are a party to an arrangement to commit a crime, you can't get out of it just by leaving. You have to have at least expressly or impliedly made a timely communication to the other parties that you are dissociating yourself from the commission of the crime before it is complete.
Now, remember, however, that if depending on — and this will really depend on your view of the facts — you consider that the issue of withdrawal does arise, it is important to emphasise that it is not for an accused to prove that he did make such a timely communication to the other parties to the arrangement or understanding that he was dissociating himself from further commission of the offence. Rather, if the issue arises the prosecution must prove beyond reasonable doubt the particular accused did not withdraw in the manner I have described to you.

The applicant’s argument implicitly raises the question of what was required to withdraw effectively so as to relieve him of criminal liability. The stringent requirements for communicating withdrawal from a criminal enterprise were referred to in Croxford v The Queen:

A person who aids, abets, counsels or procures the commission of an offence may avoid liability if he expressly withdraws his assistance or encouragement before the offence is committed. It is usually more difficult for an accused to withdraw at the time of the offence, as this will usually require greater conduct on the accused’s behalf to undo the effect of his previous assistance or encouragement.[20]

[20](2011) 34 VR 277, 285 (Ashley JA, Ross AJA, Maxwell P agreeing).

In R v Becerra,[21] three men agreed to break into a house and bring a knife in case of surprise. Becerra handed the knife to Cooper as they entered the house. When an occupant of the house interrupted them during the course of the burglary, Cooper stabbed the occupant to death. Becerra argued that he was not liable because just before the killing he had said ‘Let’s go’ and had jumped out of the house through a window. The Court of Criminal Appeal found that for his withdrawal to be effective, something ‘vastly different and vastly more effective’ was required. In the course of surveying authority on withdrawal, the Court referred to the following passage from the decision of Sloan JA in the Canadian Court of Appeal in R v Whitehouse:

After a crime has been committed and before a prior abandonment of the common enterprise may be found by a jury there must be, in my view, in the absence of exceptional circumstances, something more than a mere mental change of intention and physical change of place by those associates who wish to dissociate themselves from the consequences attendant upon their willing assistance up to the moment of the actual commission of that crime. I would not attempt to define too closely what must be done in criminal matters involving participation in a common unlawful purpose to break the chain of causation and responsibility. That must depend upon the circumstances of each case but it seems to me that one essential element ought to be established in a case of this kind: Where practicable and reasonable there must be timely communication of the intention to abandon the common purpose from those who wish to dissociate themselves from the contemplated crime to those who desire to continue in it. What is ‘timely communication’ must be determined by the facts of each case but where practicable and reasonable it ought to be such communication, verbal or otherwise, that will serve unequivocal notice upon the other party to the common unlawful case that if he proceeds upon it he does so without the further aid and assistance of those who withdraw. The unlawful purpose of him who continues alone is then his own and not one in common with those who are no longer parties to it nor liable to its full and final consequences.[22]

[21](1976) 62 Cr App Rep 212.

[22][1941] 1 WWR 112, 218; R v Sully (2012) 112 SASR 157.

In White v Ridley,[23] the High Court was concerned with the principles of innocent agency. The applicant delivered a box to an air carrier in Singapore for consignment to Australia. The carrier was unaware that the box contained a prohibited import. The applicant became aware he was under suspicion and sent a signal to the carrier instructing the carrier to stop the dispatch of the package. The carrier did not act on the instructions and the package was sent to Australia, where it was apprehended by customs officers. Gibbs J, concluding that the applicant had been properly convicted (Stephen and Aickin JJ agreeing, Jacobs and Murphy JJ dissenting), found that the applicant would not have been criminally liable if he had given a timely and effective countermand. His Honour said:

The countermand must have been manifested by words or conduct sufficiently clear to bring it home to the mind of the agent that the accused no longer desires the agent to do what he was previously asked to do; a vague, ambiguous or perfunctory countermand would not be enough. And the accused must have done or said whatever was reasonably possible to counteract the effect of his earlier request.[24]

[23](1978) 140 CLR 342.

[24]Ibid 351.

Gibbs J after referring to the decisions in Becerra and other authority then said:

The further question raised by Archbold is whether the person countermanding or withdrawing is required, in order to escape liability, to take reasonable steps to prevent the commission of the crime. Professor Glanville Williams (op. cit, p 385) and Professors Smith and Hogan: Criminal Law, 3rd Ed. (1973), p.110, consider that an accused remains liable notwithstanding his communicated withdrawal unless he takes steps to avert the danger which he has helped to create. Professor Howard expresses a similar view: Criminal Law, 3rd Ed. (1973), pp. 282, 283. Professor Glanville Williams cites from the judgment in Eldredge v United States, (20): 'A declared intent to withdraw from a conspiracy to dynamite a building is not enough, if the fuse has been set; he must step on the fuse.' It seems entirely reasonable to insist that a person who has counselled or procured another to commit a crime, or has conspired with others to commit a crime should accompany his countermand or withdrawal with such action as he can reasonably take to undo the effect of his previous encouragement or participation.[25]

[25]Ibid 350.

In Tietie v The Queen,[26] the appellant and two co-offenders kicked and punched a man to death on Oxford St, Sydney. Tietie had held the victim’s legs while the other two offenders attacked the upper part of his body. He stated that when he thought the victim ‘had copped enough, I just stopped getting into him’. He said he called out loudly to the others to stop and when they refused to do so, he ran away to Museum Station and jumped on the first train. The appellant submitted that the trial judge had directed the jury in conventional terms that to

effectively withdraw from a common enterprise upon which he has embarked he must withdraw completely. It must be timely. He must make it known to the others that he was withdrawing and he must, by such acts and words as may be appropriate, do what he reasonably can to dissuade the others from continuing with the unlawful purpose.[27]

[26](1988) 34 A Crim R 438.

[27]Ibid 445.

Lee J (with whom Loveday and Matthews JJ agreed) after quoting extensively from the judgment of Gibbs J in White v Ridley found no error with the trial judge’s direction.[28]
[28]Ibid 446.

The CCTV footage showed Dambitis holding a piece of wood following McEwan and chasing after the deceased. When McEwan followed the deceased along the driver’s side of the bus and around the rear of the bus, Dambitis doubled back across the front of the bus and moved to the passenger side of the bus cutting off any avenue of escape for the deceased. The jury was able to infer that Dambitis in combination with McEwan and Robb then commenced to assault the deceased after McEwan had struck him and he fell to the ground. Their attack was the subject of graphic description by the witnesses in the bus. Police later found a block of wood underneath Shaw when they placed him on his side. A fragment of wood was found in the nostril of the victim. It was open to the jury to infer from the entire conduct of Dambitis that he had reached agreement with his co-offenders to chase and assault Shaw, and that he carried out acts for that purpose.

Once the jury concluded that he had so agreed with the other applicants, all of the acts committed by either of the other applicants, as parties to the joint enterprise were attributable to Dambitis, until such time as he withdrew from the agreement. No evidence was led at trial to show that the applicant gave a timely communication of his decision to withdraw, nor that he did anything to undo the effect of his previous encouragement and assistance in the assault on the deceased. As is clear from Tietie, the mere fact that he departed the scene of the crime whilst another of the applicants continued to assault the victim was insufficient to establish withdrawal. It cannot be said, and was not contended at trial that he met the stringent requirements for withdrawal from a joint criminal enterprise. He remained criminally liable for the further assault carried out by McEwan after he ran from the area.

This ground has not been made out.

Robb — Conviction appeal — Ground 1 — The verdict is unsafe and unsatisfactory

The applicant Robb submits that the verdict of manslaughter is unsafe and unsatisfactory because he played only a limited role in the assault on the deceased.

The trial judge gave the jury the following directions, none of which are the subject of complaint:

You will need to consider manslaughter, firstly, and this is 5(a), if in respect of a particular accused you are satisfied beyond reasonable doubt that that accused was a party to an understanding or arrangement by which Scott Shaw would be assaulted but you are not satisfied beyond reasonable doubt that that understanding or arrangement was that Shaw be assaulted with the intention of killing him or causing him really serious injury.
So if you're satisfied in respect of an accused, ‘Yes, he was party to an arrangement to assault Scott Shaw, but I'm not satisfied of beyond reasonable doubt that it was one to kill him or cause him really serious injury’, you consider manslaughter. That's part of element 1, you will recognise that as being part of element 1 of murder, not the whole, but part of element 1. Or, and this is really the whole of the second element of murder, if you are satisfied beyond reasonable doubt that the accused was a party to an understanding or arrangement by which Scott Shaw would be assaulted, but you are not satisfied beyond reasonable doubt that the particular accused in question intended that as a result of that assault Scott Shaw would be killed or suffer really serious injury. That, in fact, is element number 2 in murder.
So you will be considering manslaughter if you are not satisfied beyond reasonable doubt of the aspect of element 1 of murder that I set out in paragraph 5(a) or if you are not satisfied beyond reasonable doubt of the second element of murder which I have set out in paragraph 5(b).
If you get to that stage you will then need to consider whether the particular accused in question is guilty of the alternative offence of manslaughter by engaging in a joint criminal enterprise.
As I did with murder, can I just tell you a little bit about manslaughter and then I will identify for you the elements of acting in a joint criminal enterprise to commit the crime of manslaughter.
So what I'm about to say to you for the next few minutes is by way of background but it will assist you to understand the elements I outlined to you.
Manslaughter, in fact, is a crime which may be committed in a number of different ways but for present purposes there is only one possible basis on which it might arise in this case and that is this. If a person causes the death of another person by what is termed an unlawful and a dangerous act, then that person may be guilty of manslaughter, and we call it manslaughter by unlawful and dangerous act, unsurprisingly, but that's that type of manslaughter.

The judge then proceeded to instruct the jury as to the elements of manslaughter simpliciter and then repeated the elements for joint criminal enterprise he had given for murder but replacing ‘that the accused would assault Shaw with the intent to kill or cause really serious injury’ with ‘that the accused would assault Shaw in a manner which would be dangerous’.

There were four eyewitnesses to the assault on Shaw — Hillyer, Merriman, Sawyer and Lopez — as well as Caulcutt, who arrived at the scene immediately after the attack took place. Hillyer, Merriman and Sawyer all believed that the assailants were aged in their 20s. The applicant observes that none of these witnesses identified Robb as a participant in the assault. McEwan in his evidence also made no reference to Robb being involved in the assault. The only evidence led to show Robb’s role in the assault on Shaw was the CCTV footage showing Robb throw a beer can in Shaw’s general direction. The applicant submits that the evidence of his purported involvement was not capable of satisfying the jury beyond reasonable doubt that the applicant was physically involved in the attack on the victim.

As a corollary to that argument, the applicant submits that given the lack of evidence of physical participation, the jury in finding Robb guilty of manslaughter could have done so only on the basis that it reasoned that Robb was present at the scene of the assault, but not physically involved.

The trial judge in his sentencing remarks rejected the submission put by counsel for Robb on the plea that he was not physically involved. His Honour said:

On your plea, your counsel, Mr Lewis, submitted that the jury's verdict was consistent with a finding that you did not physically participate in the assault on Scott Shaw, but that you were convicted of manslaughter on the basis that you gave your support and encouragement of the assault of him by your two co-offenders. Mr Lewis submitted that that interpretation of the jury's verdict is consistent with one of the ways in which the prosecution had suggested to the jury that it might find you guilty in respect of your involvement in the assault on Scott Shaw.
I do not accept that submission. I am satisfied beyond reasonable doubt on the evidence that you did physically participate in the assault on Scott Shaw, albeit that your participation was substantially less, both in its duration and in its severity, than that of your two co-offenders.
Two eye witnesses to the assault, Mr Hillyer and Ms Sawyer, each stated that the persons who they saw chasing Scott Shaw near the bus, were the same people who they saw setting upon him and assaulting him. Another witness, Ms Lopez, stated that she saw three men surround Scott Shaw near the front of the bus.
One of those men, who was clearly yourself, had just thrown what she thought was a bottle, in the direction of Scott Shaw. Ms Lopez stated that she saw the same three men catch Scott Shaw and assault him.
Further, I consider that that analysis is more consistent with the jury's evidence in relation to you. At all times from the beginning of the trial, the primary proposition put by the prosecution to the jury, was that the three of you, including you, James Robb, pursued, set upon, and assaulted Scott Shaw beside the bus.[29]

[29][2012] VSC 417, (‘Reasons for Sentence’), [59]–[63].

Those findings of his Honour are unimpeachable.

Largely for the reasons already discussed under the grounds relating to McEwan and Dambitis — both as to the evidence of the assault by the applicants and the principles governing joint criminal enterprises — this ground of appeal cannot succeed. The CCTV footage established that Robb had followed the deceased, McEwan and Dambitis to the bus, next to where the fatal assault took place. There was no dispute that it was Robb on the CCTV footage. The eyewitnesses Hillyer, Merriman and Sawyer, while unclear in their descriptions of the assailants, all agreed that the three attackers were all directly physically involved in assaulting the victim. Burgess gave evidence that Robb returned to Burgess’ car slightly before Dambitis and McEwan.

On that evidence, it was open to the jury to find that Robb was acting in pursuance of the joint enterprise with McEwan and Dambitis, and, more than merely by providing encouragement, was actively involved in the assault. For that reason, both strands of the applicant’s ground of appeal fall away.

This ground fails.

We would grant leave to appeal on ground 3 and 5 of the applicant McEwan’s appeal, ground 4 of the applicant Dambitis’ appeal and ground 1 of the applicant Robb’s conviction appeal. We would otherwise refuse leave to appeal. As none of the applicants’ grounds have succeeded, the appeals of each applicant must be dismissed.

The applicants Dambitis and Robb also seek leave to appeal against sentence.

Dambitis — Sentence appeal
Ground 1

The sentence handed down to the applicant, and the non-parole period, are manifestly excessive.

Dambitis seeks leave to appeal against the sentence on the ground that both the applicant’s sentence, and the non-parole period, are manifestly excessive, particularly having regard to the following:

(a)the circumstances of the offending as found by the sentencing judge that:
(i)the co-accused McEwan, and by inference the applicant, were courageous in deciding to confront a person who posed great danger to members of the public; and
(ii)by the jury verdict, the applicant went to the defence of the co-accused McEwan.

(b)the inconsistency between the jury’s verdict and the sentencing judge’s finding. The sentencing judge found that once disarmed and lying on the ground defenceless, the applicant continued to beat the deceased with a weapon and in particular the wooden branch in the applicant’s possession, which it was argued could not, on any view, constitute defensive homicide. The view more consistent with the jury verdict was that the applicant struck the deceased whilst he was standing, but disarmed, in the wholly unreasonable belief that this was necessary in defence of McEwan.
(c)The personal circumstances of the applicant.
(d)The nature of this offending 2 days after the applicant was released from prison, due to its circumstances, should not have given rise to the extent of concern for specific deterrence, as expressed by the sentencing judge who gave that consideration too much weight.

The sentencing judge was mindful that his findings must be consistent with the verdicts of the jury, that any facts which might be relied on in aggravation of the offence must be established beyond reasonable doubt and that any facts to be taken into account in mitigation of the offence or in mitigation of the sentence may be established on the balance of probabilities.

The sentencing judge stated, after setting out the circumstances of the attack on the deceased –

By its verdict, the jury was satisfied that you, Normunds Dambitis, were also a party to a joint criminal enterprise with your two co-accuseds to assault Shaw, and that you had the intention of killing Shaw, or causing him really serious injury. The jury was not satisfied, beyond reasonable doubt, that you did not believe that such an assault on Shaw was necessary for the purposes of defending yourself, or another person or other persons, from the infliction of death or really serious injury. Accordingly, the jury acquitted you of the charge of murder. By finding you guilty of defensive homicide, the jury was satisfied, beyond reasonable doubt, that you did not have reasonable grounds for a belief that the assault on Shaw was necessary, in order to defend yourself, or another person or other persons, from the infliction of death or really serious injury.
At your trial, it was put on your behalf, that the jury could not exclude, beyond reasonable doubt, the possibility that, in following McEwan to the scene of the assault, and (if the jury so found) in joining in that assault, you were doing so with the intention of defending McEwan from Shaw, who was holding a machete. In my view, that analysis may well reflect the verdicts of the jury in your case. Alternatively, the jury may have considered that there was a reasonable possibility that, in assaulting Scott Shaw, you believed you were acting in defence of yourself. When you came upon Shaw beside the front door of the bus, he was holding the machete. Almost instantly, he smashed the door of the bus with it. Based on those facts, the jury may not have been able to exclude, beyond reasonable doubt, that you believed it necessary to assault Shaw to defend yourself from death or really serious injury. I shall therefore sentence you on the basis that, in joining in the assault on Shaw, you believed that the assault was necessary to protect McEwan, or yourself, from death or really serious injury at the hands of Shaw, but that you did not have reasonable grounds for such a belief.[30]

[30]Reasons for sentence, [51]–[55].

Next, the sentencing judge determined the level of culpability of the applicant. His Honour accepted that at the outset of the incident, McEwan’s concern was to protect young people, who he observed to be physically threatened by the deceased. At that stage in the evening’s events, McEwan had every reason to be concerned, if not alarmed, by the observable conduct of the deceased. In commenting on the courageous nature of McEwan’s actions, the sentencing judge was referring to the events when McEwan distracted the deceased from the violent confrontation which the deceased was then undertaking with three youths. The comment was appropriately confined to the earlier events, prefaced by the rider, ‘if the events had not unfolded as they did’. It was open to the sentencing judge, and perfectly consistent with the jury’s verdict, for him to find that at those initial stages of the incident, an important part of McEwan’s motivation in pursuing the deceased to the service lane was his ongoing concern as to what the deceased might do to others with his machete. It was accepted that a like finding could be inferred concerning the motivation of the applicant Dambitis.

In making those findings, the sentencing judge was not then speaking of the circumstances of the attack on the deceased by the bus. By the time the deceased arrived near the bus, there was no longer any immediate threat to the safety of young people, and none were observed to be physically threatened by the deceased. The sentencing judge was entitled to describe the deceased as being in flight from the applicant and his companions as he ran alongside the driver’s side of the bus, despite still being armed with the machete. As the deceased came along the passenger side of the bus from the rear, Dambitis confronted him near the front door. The finding that the deceased smashed the bus door was not challenged. The deceased then turned from Dambitis to be confronted by McEwan who had followed him. His Honour found that the deceased did not strike any blow at McEwan at that point. McEwan disarmed the deceased. The sentencing judge accepted that the applicant joined in the brutal attack on the deceased. He was then knocked to the ground and beaten around the body, but principally about the head. Dambitis beat the deceased with the lump of wood. The evidence of eyewitnesses described a severe beating with weapons and fists, and which involved the deceased being kicked while he was on the ground.

We reject Dambitis’ contention that the view more consistent with the jury verdict was that the applicant struck the deceased whilst he was standing, but disarmed, in the wholly unreasonable belief that this was necessary in defence of McEwan. There was no evidence that Dambitis struck the deceased with the tree branch whilst he was standing. McEwan gave no such evidence. It was not suggested to any witness in cross-examination that Dambitis so acted in self-defence.

There is no inconsistency between the jury’s verdict and the sentencing judge’s finding that once disarmed and lying on the ground defenceless, the applicant beat the deceased with the tree branch in his possession. The Crown submitted that the sentencing judge was correct to confine his remarks about the quality of the conduct of McEwan, and by inference, the applicant, to the earlier part of the incident. In view of the specific finding of a murderous intent by the jury, the public interest motivation could not mitigate to any significant degree what occurred at the bus. The sentencing judge stated his findings concerning Dambitis’ beliefs at the time of the fatal assault in these terms –

As I have already stated, in your case, Normunds Dambitis, the jury could not exclude, as a reasonable hypothesis, that in following McEwan to the scene of the assault, and in joining in the fatal assault on Scott Shaw, you acted in the belief that it was necessary to do so to defend McEwan, or yourself, from Shaw, who was holding the machete. The question of when you formed the intention to kill Scott Shaw, or cause him really serious injury, is somewhat difficult. By the time you advanced up the highway, you had armed yourself with the block of wood, which was capable of inflicting very serious injury if used on another. On the other hand, the jury’s verdict, that there was a reasonable possibility that you were acting in defence of McEwan, or yourself, in my view, reflects a finding, consistent with the evidence, that you formed the intention to kill, or cause really serious injury to, Shaw, at the time at which you considered it necessary to act to defend Stephen McEwan or yourself. I am, therefore, not satisfied that you formed that intention, until you were close to the passenger side of the bus, and very shortly before you and your co-offenders perpetrated your assault on Shaw.[31]

[31]Ibid [85]–[88].

Later in his sentencing remarks, the judge returned to the issue of Dambitis’ beliefs. His Honour said –

In summary, then, you have been convicted of a very serious offence. Consistent with the jury’s verdict, I am to sentence you on the basis that you believed that it was necessary for you to participate in the assault on Scott Shaw, in order to defend Stephen McEwan, or yourself, from death or really serious injury at the hands of Shaw, but that you did not have reasonable grounds for forming that belief. Indeed, on the evidence, I am satisfied that your belief, that it was necessary to defend McEwan, or yourself, in that way, was wholly unreasonable.[32]

[32]Ibid [200]–[201].

The sentencing judge identified three particular features of Dambitis’ conduct as relevant. Most significantly, his belief that his actions were necessary in defence of McEwan or himself was wholly unreasonable. Secondly, Dambitis had significant relevant prior convictions in Victoria for violent offending. In 2005, Dambitis was sentenced to four months’ imprisonment, wholly suspended for 12 months. He had been convicted and fined on assault police charges in 1999 and 1997 and there were offences committed at an earlier time in Latvia, to which the sentencing judge had little regard. In 2008 he was sentenced to 18 months’ imprisonment with a non-parole period of 12 months in 2008, following a plea of guilty to charges of reckless conduct endangering life, common law assault, recklessly causing injury and criminal damage. On the occasion of that offending, police shot Dambitis. The circumstances were unusual, in that Dambitis assaulted persons who intervened in his suicide attempt, and then threatened police with a bow and arrow. Thirdly, Dambitis had completed this sentence two days prior to the present offending. Quite properly, the sentencing judge considered the principles of general deterrence to be significant, and in the case of the applicant, but not his co-offenders, the principle of specific deterrence was relevant.

On the plea, the sentencing judge heard evidence from Dambitis’ mother of a traumatic upbringing during which he was detained in a Latvian psychiatric hospital at the age of eight years and was unable to return to school for some years. His education was substantially compromised. Later, as a young man, he was sent to a labour camp in Siberia for political protest that was described as hooliganism. As an adult in Australia, Dambitis was depressed and prone to excessive consumption of alcohol. He had attempted suicide on several occasions, which included a suicide attempt on each of two parole releases during his June 2008 sentence. Mr Watson-Munro, a forensic psychologist, reported a diagnosis of major depression, with post traumatic stress disorder.

On the appeal, Dambitis contended that Verdins[33] principles were relevant in two respects. First, the sentence would weigh more heavily on him than it would on an offender in normal health. Second there was a serious risk of imprisonment having a significant adverse effect on Dambitis’ mental health. Mr Watson-Munro recommended appropriate long-term psychiatric treatment for Dambitis during his term of imprisonment.
[33]R v Verdins (2007) 16 VR 269.

It was submitted that the sentence of 11 years was beyond current sentencing practice for this offence, which demonstrated, in and of itself, manifest excess. There are not many sentences for the recently created offence of defensive homicide that establish an appropriate basis for current sentencing practices. The submission was, in effect, that by any fair comparison with those few cases that have dealt with the offence, the applicant’s sentence could be demonstrated to be outside the range. Conveniently, in Creamer v The Queen,[34] Weinberg JA collected those cases and set out the salient features of the sentences in tabular form, and the sentencing judge was familiar with that decision. To that collection may be added the sentences in DPP v Chen[35] and R v Kassab & Moustafa.[36]
[34](2012) 221 A Crim R 284 (‘Creamer’).
[35][2013] VSC 296.
[36][2013] VSC 379.

Counsel for Dambitis submitted that only one sentence was higher than the sentence under consideration. There were six sentences in the range of 10–11 years, which were mostly sentences that followed a plea of not guilty and eight sentences in the range of 8–9 years, which were mostly sentences that followed a plea of guilty.

In Creamer[37] Weinberg JA observed that the essential determinant of the gravity of moral culpability for defensive homicide will be the reasonableness or otherwise of the offender’s belief:

The gravity of this offence must depend, to a considerable degree, upon the strength of the circumstances said to give rise to the belief that self-defence was warranted. Of course, in any case where the verdict is one of defensive homicide, the offender’s belief must have been unreasonable. Otherwise, the jury would have acquitted entirely, on the basis of self-defence. However, there are degrees by which a belief may be said to have been unreasonable. In some cases, the line is just barely crossed. In others, the belief is wholly unjustifiable, almost to the point of being fanciful.[38]

[37](2012) 221 A Crim R 284.

[38]Ibid 293 [49]–[50].

The Crown submitted that this case fell within the latter category and we agree. The sentencing judge described Dambitis’ belief in self-defence or defence of McEwan as wholly unreasonable, a description that was plainly open on the evidence and consistent with the jury’s verdict. The sentencing judge proceeded on the basis that, by this assessment, this was a very serious case of defensive homicide. In our view, no error is demonstrated in that conclusion. It seems clear that his Honour also had in mind the severity of the attack on the deceased after he was disarmed and the proportionality of that response. Dambitis was in company, armed with a dangerous weapon, viciously assaulting a man lying prone on the bitumen.

The applicant contended however that had the sentencing judge given due weight to the matters in mitigation, a lower sentence within the permissible range would have been pronounced.

The test for manifest excess was restated in DPP v Karazisis[39] in these terms:

In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the circumstances. As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.[40]

[39](2010) 206 A Crim R 14.

[40]Ibid 44 [127] (citations omitted).

We reject the contention that giving due weight to the matters in mitigation, the head sentence imposed was beyond a sound exercise of the sentencing discretion. As to the non-parole period of eight years, nothing has been raised on appeal that would suggest that it was other than entirely appropriate.

Leave to appeal against sentence must be refused.

Robb — Sentence appeal

On the hearing of the appeal, counsel for Robb abandoned the ground stated in the Notice of Application for Leave to Appeal against Sentence and sought leave to argue the following additional ground:

2.The judge erred in determining that he could be satisfied beyond reasonable doubt that the applicant physically participated in the assault on Shaw.

It was submitted in support of this ground that as it was not open to the sentencing judge to find that Robb had actually physically participated in the assault upon the deceased, he had been sentenced on an erroneous factual basis. This proposed ground thus mirrored his conviction ground of appeal. Counsel reiterated the submission that the jury may have reasoned that Robb was present but not physically participating in the assault. Counsel for the applicant conceded during oral argument that if the Court rejected the argument on the conviction appeal that the applicant was not physically involved in the assault, then the sentence ground would also fail. For the reasons expressed when dealing with that ground, we consider that the sentencing judge was right to sentence Robb on the basis that he had participated in the physical assault.

The application for leave to appeal must be refused.

---

[2013] VSCA 329

20 December 2013