Mulkatana and Mulkatana v The Queen

[2010] NTCCA 4

Mulkatana & Mulkatana v The Queen [2010] NTCCA 04

PARTIES:  MULKATANA, Ernest

AND

MULKATANA, Grant

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NOS:CA 9 of 2009 (20813202) and

CA 10 of 2009 (20815593)

DELIVERED:  17 June 2010

HEARING DATES:  1 and 2 June 2010

JUDGMENT OF:  MARTIN (BR) CJ, RILEY AND SOUTHWOOD JJ

APPEALED FROM:  REEVES J

CATCHWORDS:

CRIMINAL LAW – APPEAL – APPEAL AGAINST CONVICTION

Ernest Mulkatana:

Convictions for murder, aggravated unlawful entry of premises, aggravated assault – meaning of ‘serious harm’ – relating the relevant law to the facts – expert evidence on causation – intoxication and intention – adequacy of directions – severance – aide memoire – provision of transcript to jury – whether verdict unreasonable – appeal dismissed.

Grant Mulkatana:

Convictions for murder, aggravated unlawful entry of premises, aggravated assault – common intention – aiding and abetting – adequacy of directions – relating facts to the issues concerning knowledge and awareness – appeal allowed – conviction for murder set aside – retrial ordered.

Ladd v The Queen (2009) 229 FLR 386; R v Hofschuster (1992) 65 A Crim R 167; The Queen v Roberts (2009) NTSC 44, cited.

R v Dunn (2006) 94 SASR 177, distinguished.

Chamberlain v The Queen (No 2) (1984) 153 CLR 521; Velevski v R (2002) 76 ALJR 402, followed.
R v Hughes (1980) 7 A Crim R 51; R v Radford (1986) 133 LSJS 110 referred to.

REPRESENTATION:

Counsel:

Ernest Mulkatana:  W F Braithwaite

Grant Mulkatana:  J B Lawrence

Respondent:  Dr N Rogers SC

Solicitors:

Ernest Mulkatana:  CAALAS

Grant Mulkatana:  CAALAS

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    A

Judgment ID Number:  Ril1022

Number of pages:  33

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Mulkatana & Mulkatana v The Queen [2010] NTCCA 04

Nos. CA 9 of 2009 (20813202) and CA 10 of 2009 (20815593)

BETWEEN:

ERNEST MULKATANA

AND

GRANT MULKATANA
Appellants

AND

THE QUEEN

Respondent

CORAM:     MARTIN (BR) CJ, RILEY AND SOUTHWOOD JJ

REASONS FOR JUDGMENT

(Delivered 17 June 2010)

The Court:

1. On 29 July 2009 the first appellant (EM) and the second appellant (GM) were found guilty by a jury of the murder of Tarzan Loo.  At the same time they were each found guilty of the lesser offences of aggravated unlawful entry of premises and two separate counts of aggravated assault upon a female.  The appellants have appealed against their convictions. 

2. The death of the deceased arose out of a confrontation which occurred on 9 May 2008.  On that night the appellants drove to House 13 at Hidden Valley, Alice Springs.  They had both been consuming alcohol.  EM was armed with a branch he had cut from a tree which was variously referred to as a stick, a kudra and a nulla nulla.  It was described as being a metre long and 4 cm to 5 cm thick.  He told people in the presence of GM that he was going to the house "about payback".

3. The appellants travelled to the house with others.  There were three occupants in one car and three or four in a second car.  When they arrived at the house the appellants entered through the unlocked front door (count 1).  EM entered a bedroom where he struck a resident of the house, Donella Hayes, with the nulla nulla.  He raised his arm above his shoulder and on two occasions hit her very hard to the head and forehead (count 2).  She was bleeding and crying.  EM then proceeded to the bedroom occupied by the deceased.  The bedroom door was shut and he banged on the door and said "open the door".  The wife of the deceased, Jennifer Gorey, opened the door and saw EM with the nulla nulla.  EM and GM entered the room.  The deceased was seated on a mattress on the floor.  EM wielded the nulla nulla with two hands above his head and forcefully struck the deceased twice.  EM then pushed Jennifer Gorey onto the bed and said "I am going to hit you too" (count 3).  He then picked up a pedestal fan and, holding it near its base, hit the deceased on the rear of the head.  It was a hard blow.  He then kicked the deceased to the right cheek.  GM threw a DVD player onto the floor smashing it.  The men then left the house.

4. Police and ambulance officers attended at House 13.  The wounds of the deceased and Ms Hayes were treated and they were subsequently admitted to Alice Springs Hospital.  On 10 May 2008 a CT scan was conducted on the deceased and this revealed a 4 cm haemorrhage in the right frontal lobe.  The deceased was evacuated by air to Royal Adelaide Hospital on 12 May 2008 and he remained there in a stable condition until 22 May 2008 when he was returned to the Alice Springs Hospital for rest and rehabilitation.  On 24 May 2008 his condition suddenly deteriorated and he died on 25 May 2008 at the Alice Springs Hospital.  At the time of the autopsy the forensic pathologist, Dr Sinton, found a blood clot measuring about 6 cm in diameter in front of the right hemisphere of the brain.  This was, he said, anatomically close to the area of a healing 5 cm laceration on the forehead.  It was the evidence of the forensic pathologist that a “rebleed” caused the death.  It was common ground that the fatal bleed was a rebleed of that found at the time of the CT scan on 10 May 2008.

5. The cause of death according to Dr Sinton was trauma to the head and subsequent brain damage. 

6. Causation was a significant issue in the trial.  Professor Hilton, who was called on behalf of the defence, raised the issue of whether the deceased died of causes unrelated to the events of 9 May 2009.  He expressed the opinion that it was "a reasonable hypothesis, consistent with the evidence, that the deceased died from a stroke which was not caused by the blows to the head".

7. The Crown Case was that EM was the primary offender and GM was a secondary offender.  It was alleged that GM aided and abetted EM. 

   The appeal of Ernest Mulkatana

8. At the commencement of the hearing EM relied upon 14 grounds of appeal.  Some of those grounds were abandoned during the course of submissions.  At the conclusion of submissions counsel for EM was granted leave to add the additional ground of appeal that the verdict of the jury was unreasonable.

   Ground 1: the learned trial Judge erred in failing to direct the jury as to the meaning of "serious harm" as that term is used in s 213 and s 156 of the Criminal Code.

   Ground 12: the learned trial Judge erred in leaving the jurors to interpret and apply critical sections of the aide memoire themselves, without any assistance to them in his oral charge.

   Ground 14: the learned trial Judge erred in failing to, in his summing up in relation to count 1, relate the relevant law to the facts relevant to count 1.

9. For many years it has been the practice of Judges of the Supreme Court to provide juries with written directions, usually entitled “aide memoire", to assist them in their deliberations.  As in other jurisdictions the provision of written directions is commonplace.  The document takes different forms depending upon the requirements of the particular case but usually includes a description of the offence, an identification of the elements of the offence, the definition of some terms relevant to the proceedings and general guidance as to the matters to be considered by the jury.  The jury is usually taken through the aide memoire by the Judge.  The written directions are part of the overall directions provided to the jury and are to be considered by the jury along with the oral directions delivered by the Judge.  The presentation of a combination of written and oral directions is regarded as an effective method of communicating necessary information to the jury.

10. There is an increasing awareness of the availability of different methods of effectively communicating with juries.  The exercise is always based upon an endeavour to ensure and enhance effective communication with the jury.  It is for the trial Judge to determine how directions to a particular jury in a particular case should be given.  An appellate court would only interfere if the method chosen was not suitable to the task and therefore had a tendency to lead to a miscarriage of justice.  In R v Radford King CJ said:[1] 

    Generally speaking, a clear oral explanation directly related to the facts and issues in the case is more suited to the needs of the jury than a document setting out the law.  Nevertheless it is for the trial judge, not the appellate court, to decide how the direction should be given and, so long as there is no inaccuracy and no tendency to produce a miscarriage of justice, an appellate court will not interfere.

11. Similar observations were made in R v Hughes[2] by Lush J when he said:

    It is not the function of an appellate court to dictate to a trial judge what method he must use for communicating the necessary consequence of a construction of the evidence to the jury.  It is its function to be vigilant to see that the jury is placed, finally, in a position in which it understands the decisions it must take and the verdicts which emerge from those decisions.

12. The decisions in Radford and Hughes were delivered at a time when written directions were not usually provided to juries.  In the Northern Territory they are now almost invariably provided and the older authorities must be viewed in light of changed practices.

13. In the South Australian case of R v Dunn[3] Bleby J reviewed the authorities and came to the conclusion that it is a matter for the trial Judge to decide how directions to a jury should be given.  However, his Honour went on to say that "it would be an error merely to hand the written direction to the jury without more, without reading and perhaps repeating the words written down."[4]  Whilst that may be so in many cases, in our opinion it cannot be said to be a universal requirement.  Usually it will be preferable at least to read the aide memoire and often it will be necessary to give an oral explanation relating the essential facts to elements of an offence that is in dispute.  The extent to which any oral explanation is required will depend upon the circumstances of the particular case.

14. Turning to the present case, the first ground of appeal on behalf of EM is that the learned trial Judge did not explain to the jury the meaning of the expression "serious harm" in the course of his oral directions and he did not relate the law on this element of murder to the facts of the case.  It was submitted that the failure to explain the meaning of "serious harm" and relate it to the facts of the case "vitiates the conviction".   The same submission was made in support of grounds 12 and 14.

15. With the assistance of counsel, the learned trial Judge prepared an aide memoire and then provided it to the jury in the course of his address.  In the document his Honour identified the elements of the charges against each of the appellants and confirmed that EM was alleged to be the primary offender in relation to all charges.  GM was described as a secondary offender who, in relation to the charge of murder, aided or abetted EM and in relation to the remaining charges formed a common intention with EM to commit the offences.  The document included a charge of manslaughter as an alternative to murder.  There was no complaint by either appellant as to the terms of the aide memoire and there was no challenge to its suitability in the circumstances of the trial.

16. It was acknowledged on behalf of EM that "serious harm" was correctly defined in the aide memoire.  In the course of his address to the jury counsel for EM had, himself, read the definition to the jury.  The following day the trial Judge took the jury to the document and drew to their attention various features of it.  In so doing he expressly directed the attention of the jury to the "summary of what serious harm means" without actually rereading the definition.  He went on to refer to a particular part of the definition which related to "the cumulative effect of more than one harm" and directed the attention of the jury to the evidence on that topic.  

17. The definition of serious harm contains ordinary words and concepts.  Those words and concepts do not require further explanation.[5]

18. The Crown case against EM was that he was guilty of the murder of the deceased because, at the time he engaged in conduct which caused the death of the deceased, EM intended by that conduct to cause serious harm to the deceased.  In this Court the submission on behalf of EM tended to focus upon whether serious harm was in fact suffered by the deceased at the time the blows were delivered.  It was argued that the nature of the injuries was such as to allow debate as to whether they amounted to serious harm.  It followed, so it was argued, that there was a need for the trial Judge to examine the evidence relating to the injuries called from two expert witnesses and to relate that evidence to the definition as contained in the aide memoire.

19. An analysis of the issues for the jury to determine reveals that the focus of their deliberations was not whether the deceased in fact suffered serious harm but, rather, whether at the time of inflicting the injuries, EM intended to cause serious harm.  It was the intention of EM rather than the result of his conduct which had to be addressed by the jury.  In those circumstances it was not necessary for the learned trial Judge to undertake a detailed consideration of the evidence regarding the injuries in fact suffered by the deceased and whether those injuries satisfied the definition which was contained in the aide memoire.  Rather it was necessary for the jury to consider the evidence which illuminated the intention of EM at the relevant time.  Among many other considerations this evidence included the nature of the injuries suffered by the deceased, but did not require a consideration of whether those injuries fell within the statutory definition.

20. Counsel for EM at trial did not complain that the directions were inadequate by reason of the failure of the trial Judge to read out the definition of serious harm or to explain the meaning of words in the definition.  In our view there is no possibility that the jury did not properly understand the definition and apply it.  These grounds of appeal are not made out.

    Ground 2: The learned trial Judge erred in not trying the charge of murder separately from the other three counts.

21. EM and GM argued that the charge of murder should have been separately tried from the other three counts.  An application was made for severance at the beginning of the trial and the learned Judge determined, on the basis of the information then available, that there was no need for severance at that point.  The appellants do not challenge that decision.  However, they submit that by the end of the trial, in light of the way the trial developed and in light of the complexities thrown up by the evidence and the different legal considerations applicable to the different offences, it was apparent that the murder charge should be tried separately from the other 3 counts.

22. It is not disputed that it may be appropriate to charge a count in addition to murder on an indictment.[6]  In the present case the offences sought to be severed were part of a course of conduct and were inextricably linked to the conduct which was alleged by the Crown to constitute murder.  The appellants acknowledged that evidence relating to the alleged offences sought to be severed was relevant and would be admissible in a trial of the charge of murder.  The evidence would necessarily have to be led in the course of the murder proceedings as an integral part of the Crown case.

23. The concern of the appellants was the complexity of the legal issues.  There were different principles of criminal responsibility attached to counts 1 to 3 when compared with those applicable to the charge of murder.  Counsel for EM directed attention to differences in relation to necessary directions regarding intoxication, common purpose and intent.  It was submitted that the complexities led to an aide memoire "which is so dense with law and complicated cross-referencing that it has led to an unfair trial".

24. Reference to the aide memoire reveals that the document is longer than is often the case and does include cross-referencing.  However it follows a logical progression through the matters to be considered by the jury and, in our opinion, cannot be said to be “dense” or unnecessarily complicated as submitted by counsel.  The jury did ask questions of the Judge, but did not seek any assistance in relation to the document itself.  It is noteworthy that with one exception to be discussed later, no challenge has been made to the content of the document.

25. In our view the joinder of the counts did not give rise to a risk of a miscarriage of justice.  This ground of appeal has not been made out.

    Additional ground: unreasonable verdict.

26. It is convenient to deal with this ground at this point as it leads into a consideration of the matters raised in relation to ground 3.

27. It was argued on behalf of EM that the verdict is unreasonable.  The sole basis for that contention is found in the conflicting evidence of the two medical experts Dr Sinton (who was called on behalf of the Crown) and Professor Hilton (who was called on behalf of EM).

28. The difference between the medical experts focussed on the issue of causation.  Dr Sinton, the forensic pathologist who performed the autopsy, concluded that the deceased died as a result of blunt head trauma consistent with the history of an assault occurring on 9 May 2009.  In his evidence and in his autopsy report Dr Sinton noted the presence of external damage to the brain.  Professor Hilton expressed the opinion that it was not safe to conclude that the intra-cerebral haemorrhage experienced by the deceased was caused by external trauma.  Based upon the report and evidence of Dr Sinton, Professor Hilton was of the view that there was no external damage to the brain.  In the absence of such damage he concluded that there was a reasonable hypothesis, consistent with the evidence, that the deceased died from a stroke which was not caused by the blows to the head.

29. Each of the expert witnesses disclosed the foundation for their respective opinions in a manner which was comprehensible to lay people.  In the course of his charge to the jury the learned trial Judge discussed and highlighted the areas of difference between the two experts and identified the evidence upon which they each relied for their conclusions.  It is apparent from the verdict that the jury preferred the evidence of Dr Sinton over that of Professor Hilton.  The submission made on behalf of EM was that there was no basis upon which the jury could prefer the evidence of Dr Sinton over that of Professor Hilton and, therefore, it was argued that the verdict was unreasonable.

30. A review of the evidence of each of the experts reveals a basis upon which the jury may have preferred Dr Sinton over Professor Hilton.  The theory as to the cause of death put forward by Professor Hilton proceeded on the basis of his understanding of the findings of Dr Sinton.  Professor Hilton understood there was no damage to the overlaying outer part of the brain and he stated that he had never seen localised bleeding within the brain as a result of trauma without there being external evidence of direct trauma to brain substance.  He said: "I think I have said that it could be a direct link between the trauma and the intra-cerebral bleed but I do not believe so in the absence of any other brain injury."  In those circumstances Professor Hilton concluded that the deceased may have died from a stroke unrelated to the assault.

31. In his evidence before the jury, and in his autopsy report, Dr Sinton said that he examined the surface of the brain and saw signs of direct trauma to the brain.  Professor Hilton challenged that evidence stating that there was no indication that Dr Sinton "actually saw the naked surface of the brain" and therefore saw the trauma he described.

1. There was a clear contest between the two medical experts on this issue of fact.  The jury accepted the evidence of Dr Sinton that he saw signs of direct trauma to the brain on the surface of the brain and rejected the evidence of Professor Hilton to the contrary.  If there was evidence of direct trauma to the brain then the theory as to the cause of death proposed by Professor Hilton could be discounted.  The jury had a basis for preferring one expert over the other.  This was a matter for the jury.  The verdict was not unreasonable on that basis.  It was not submitted that the verdict was unreasonable on any other basis.

   Ground 3: the learned trial Judge erred, in the circumstances of this case, in directing the jury about their approach to the expert evidence on causation.

2. In the course of directions to the jury regarding the evidence of the two expert witnesses, Dr Sinton and Professor Hilton, the learned trial Judge said that the jury was not being asked to approach this evidence from “cause and effect in the philosophical way, establishing scientifically according to empirical data or other information" and that they were not "approaching this from the scientific point of view".  The jury was directed to use commonsense.  They were directed that they should not reject the evidence of either expert "unless there is a good reason for doing so".

3. Counsel for EM argued that the evidence of the experts was of such a kind as requiring scientific analysis and it fell within what was a "wholly scientific question" such as that discussed in Chamberlain v The Queen (No 2).[7]  Counsel relied upon the observations of Gibbs CJ and Mason J in Chamberlain v The Queen (No 2). Those observations have been addressed in the subsequent High Court decision of Velevski v R[8] where Gummow and Callinan JJ said:[9]

   The correct position is, in our opinion, that conflicting expert evidence will always call for careful evaluation.  So too, because expert evidence by definition deals with generally unfamiliar and technical matters, it will always need careful, and usually more elaborate treatment by the trial Judge in directing a jury about it.

   Juries are frequently called upon to resolve conflicts between experts.  They have done so from the inception of jury trials.  Expert evidence does not, as a matter of law, fall into two categories: difficult and sophisticated expert evidence giving rise to conflicts which a jury may not and should not be allowed to resolve; and simple and unsophisticated expert evidence which they can.  Nor is it the law, that simply because there is a conflict in respect of difficult and sophisticated expert evidence, even with respect to an important, indeed critical matter, its resolution should for that reason alone be regarded by an appellate court as having been beyond the capacity of the jury to resolve.[10]

4. With respect we adopt those observations.    In the present case the issues addressed by the jury were not, in any event, the subject of "difficult and sophisticated expert evidence".

5. The evidence of the expert witnesses is discussed in more detail above in relation to the additional ground of the appeal.  By reference to that discussion it is apparent that the dispute between the witnesses was narrowly focussed upon whether Dr Sinton observed external damage to the surface of the brain of the deceased.  This was not a matter where complex scientific issues were raised.  This was a matter upon which the jury could reach its own conclusion without the need for any special scientific analysis.

6. A fair reading of the whole of the directions of the learned trial Judge does not support the submission that the jury was directed to disregard the opinions of the experts and only rely upon common sense.  The contrary is the case.  His Honour made it clear that the jury was to take care in considering the expert evidence and not to disregard the evidence capriciously.

7. Counsel contended that the jury should have been directed that they were determining a scientific question, but was unable to articulate the terms of the proposed direction or how it would have made any difference to the approach of the jury.

8. Throughout his directions the learned trial Judge emphasised the obligation upon the Crown to prove its case beyond reasonable doubt.  At one point it may have appeared that his Honour inadvertently reversed the onus of proof by the use of infelicitous language, however, considering the whole of the charge, the jury could have been left in no doubt that the onus rested upon the Crown and that the standard of proof borne by the Crown was beyond reasonable doubt.  No issue was raised with the learned Judge at the time of trial and it is plain that counsel at the trial did not have any concern regarding this issue.

9. Leave to appeal is required in relation to this matter.  Leave should not be granted.

   Ground 6: the learned trial Judge erred in directing the jury in relation to the issue of intoxication and intention regarding EM.

   Ground 7: the learned trial Judge's directions about intoxication were contradictory and confusing to a degree which contributed to EM’s defence of not having the intent to inflict serious harm not being put properly before the jury.

   Ground 8: - the learned trial Judge erred in failing to relate his directions to the jury about manslaughter to the facts of the case

   Ground 9: the learned trial Judge's directions in relation to manslaughter were confusing in relation to intoxication.

   Ground 11: the defects identified have made a conviction for murder more likely, especially in the circumstances that the meaning of "serious harm" was not clearly explained in the learned trial Judge's oral charge to the jury.

10. Counsel for EM presented the arguments in relation to these grounds at the same time.  It is also convenient for the Court to deal with these grounds together.

11. Counsel for EM submitted that the directions to the jury relating to intention and intoxication “mis-state the law”.  It was also submitted that they were contradictory and confusing.  The identified directions were similar in kind and included reference to the jury determining whether EM "was so severely intoxicated that he was not able to form the necessary intention to do serious harm" to the deceased. Counsel complained that it was not the case put on behalf of EM that he was so severely intoxicated that he could not form an intention.  Counsel complained that his Honour raised the issue with the jury even though counsel had not sought to rely upon it. It was contended, correctly, that the critical issue was not whether EM was incapable of forming an intention to cause serious harm, but whether, as a matter of fact, it was reasonably possible that he did not form such an intention.

12. In light of the evidence available to the jury it was appropriate to address the accused’s capacity to form the requisite intention.  His Honour did so in circumstances where he made it clear that counsel for EM had "not really emphasised intoxication to any great extent in his address." His Honour also pointed out that the Crown, in closing submissions, had identified reasons for concluding EM was not so heavily intoxicated as to be incapable of forming the necessary intention.  His Honour then went on to briefly deal with the issue.  We see no basis for complaint in this regard.  It was appropriate for his Honour to deal with the matter which was open on the evidence notwithstanding counsel for the defence did not wish to rely upon it.

13. Viewed in their entirety, the directions made it clear that the Crown had to prove that EM did, in fact, possess an intention to cause serious harm and intoxication was relevant to that question.  For example his Honour directed the jury that "what the Crown has to do in this case is to prove that EM intended to cause serious harm to (the deceased)" and "if the state of intoxication of EM was so severe that it raises a reasonable doubt as to whether or not the Crown has proved that he had the relevant intention, then of course the Crown will not establish that element of the charge of murder against him beyond reasonable doubt."  Further, the learned trial Judge directed the jury that "the Crown must prove that he (EM) had that intention, albeit even a drunken intention, beyond reasonable doubt, because it is an element of the charge of murder."  In addition to the oral directions it was clear from the aide memoire that the Crown was required to prove the existence of the necessary intention.

14. The directions, read fairly and as a whole, did not have the tendency to, or the effect of, diverting the jury from the task of deciding whether or not the Crown had proved beyond reasonable doubt that EM possessed an intention to cause serious harm at the time he struck the fatal blow or blows.

15. In relation to manslaughter, it is to be noted that EM was not convicted of this offence.  In our opinion, it has not been demonstrated that the directions in relation to manslaughter were inadequate.

16. These grounds of appeal have not been made out.

    Ground 13: The learned trial Judge erred in providing to the jurors copies of the transcript of the evidence of Dr Sinton and Dr Hilton and permitting them to take (it) into the jury room during their deliberations.

17. Counsel for EM did not dispute that it was open to the trial Judge to provide the jury with a copy of the transcript or part of it.  However, complaint was made that the material provided to the jury included prosecutorial comment on the evidence.

18. In the course of cross-examination Professor Hilton had discussed the issue of whether the membranes were stripped during the autopsy and observed that Dr Sinton "hasn't said he has done it".  Counsel for the Crown observed:

    Well with respect, he has said in his report and he has said in his evidence, but I will move on".

    After an objection, counsel moved on to another topic.

19. The comments were raised with his Honour prior to the transcript being provided to the jury and his Honour ruled that the comments had been made in the presence of the jury and should therefore remain in the transcript.  His Honour indicated he would advise the jury to ignore any such comments and he subsequently did so.  It was pointed out to the jury that such comments were not evidence.

20. The paramount consideration is whether the trial was conducted fairly.  In light of the circumstances in which the comment was made, and in light of the directions provided by the learned trial Judge, it could not be said that the material had any impact upon EM receiving a fair trial.  We see no error on the part of the trial Judge.

21. The appeal by EM is dismissed.

    The appeal of Grant Mulkatana

22. The case against GM with respect to counts 1, 2 and 3 was presented on the basis that he formed a common intention with EM to commit the individual offences.  On count 4, the charge of murder, the Crown did not advance a case of common intention.  The Crown relied upon aiding and abetting EM in the commission of that crime.

23. As to the facts of particular relevance to the case against GM, it was open to the jury to reach the following conclusions beyond reasonable doubt:

    ·     At House 22, EM told GM that EM had to do “payback from brother-in-law” to the son of the deceased by way of hitting him.

    ·     Only EM and GM were aware of the intention to carry out payback.

    ·     At House 22, in preparation for carrying out payback, EM cut the nulla nulla from a tree.  It was a solid stick approximately one metre in length.

    ·     Knowing that EM intended to carry out payback on the son of the deceased, and aware that EM was in possession of a weapon in the form of a nulla nulla which he intended to use to carry out the payback, GM travelled from House 22 to House 13 in the front passenger seat of a vehicle driven by EM. 

    ·     Upon arrival at House 13, EM and GM alighted from the vehicle and moved quickly to the house.  EM was carrying the nulla nulla.

    ·     As EM and GM moved to the house, GM was aware that EM was carrying the nulla nulla and was intending to use it to carry out payback by striking a son of the deceased with the nulla nulla.

    ·     EM knocked on the door and opened it.  He was calling out for the deceased’s son or sons. 

    ·     EM opened a door to a bedroom in which Donella Hayes, an auntie of the deceased’s sons, was sitting on a mattress on the floor.  He barged into the room having said or saying something to the effect of “Where’s your nephews?” 

    ·     GM entered the bedroom with EM and was standing beside him when EM forcefully struck Donella Hayes twice on the top of the head with the nulla nulla causing her to bleed and briefly lose consciousness.

    ·     GM knew that EM was looking for the son of the deceased and heard him ask about him.  He heard Donella Hayes say that the son had gone somewhere.

    ·     After striking Donella Hayes, EM moved quickly to the door of another bedroom occupied by Jennifer Gorey and the deceased.  He banged on the door and said “Open the door” and Jennifer Gorey opened the door from inside the bedroom.  GM followed EM to the door and into the bedroom.  As EM entered the bedroom he said “Ryder is my brother-in-law.”  GM was present when those words were said.

    ·     The deceased was sitting on a low bed.  After saying that Ryder was his brother-in-law, holding the nulla nulla with both hands, EM raised it above his head and forcefully struck the deceased twice in the area of the deceased’s forehead.  The blows were struck with considerable force.[11] 

    ·     After striking the deceased, EM pushed Jennifer Gorey from her standing position onto the bed saying “I’m going to hit you too.”[12]

    ·     EM took hold of a portable fan on a stand and struck the deceased with force to the rear of the head using the round section of the fan where the blades were attached.  EM then kicked the deceased to the right cheek area. 

    ·     GM was present in the bedroom when all of the attacks took place and, after the attacks, GM demonstrated active approval of the conduct of EM by throwing a DVD onto the floor. 

    ·     Throughout the events at Houses 22 and 13, GM was significantly affected by alcohol.

    Directions

24. It is against the background of evidence supporting those conclusions of fact that the directions of the trial Judge are to be considered.  In respect of count 1, the charge of unlawfully entering a building for the purpose of committing an offence, the aide memoire identified four elements to be proven:

    “9.1.1That on 9 May 2008 at Alice Springs in the Northern Territory of Australia, Grant Mulkatana formed a common intention with Ernest Mulkatana to prosecute an unlawful purpose of seriously assaulting Tarzan Loo’s son or sons at House 13;

    9.1.2In the prosecution of that unlawful purpose Ernest Mulkatana committed the offence of unlawfully entering House 13 at Hidden Valley camp, for the purpose of committing an offence, that is:

    9.1.2.1on 9 May 2008 at Alice Springs in the Northern Territory of Australia, the accused Ernest Mulkatana, unlawfully entered House 13 at Hidden Valley Camp;

    9.1.2.2at the time of his entry to House 13, he intended to enter for the purpose of committing an offence therein; and

    9.1.3the offence of unlawfully entering House 13 to commit an offence therein is of such a nature that its commission was a possible consequence of that unlawful purpose.”

25. As to the charges of assaulting Donella Hayes and Jennifer Gorey, the aide memoire set out the elements to be proven in the following terms:

    “10.1.1That on 9 May 2008 at Alice Springs in the Northern Territory of Australia, Grant Mulkatana formed a common intention with Ernest Mulkatana to prosecute an unlawful purpose of seriously assaulting Tarzan Loo’s son or sons at House 13;

    10.1.2In the prosecution of that unlawful purpose Ernest Mulkatana committed the offence of assaulting Donella Hayes, that is:

    10.1.2.1On 9 May 2008 at Alice Springs in the Northern Territory of Australia, the accused, Ernest Mulkatana unlawfully applied force, directly or indirectly, to Donella Hayes;

    10.1.2.2that Ernest Mulkatana intended to apply that force to Donella Hayes; and

    10.1.2.3that force was applied to Donella Hayes without her consent.

    10.1.3The offence of assaulting Donella Hayes is of such a nature that its commission was a possible consequence of that unlawful purpose.”

26. In respect of counts 1 – 3, the aide memoire also dealt with the circumstances of aggravation charged in each of those counts and included notes relating to intoxication, unlawful purpose and common intention.  It is unnecessary to set out these parts of the aide memoire.

    Counts 1 - 3

27. Although no objection was taken at the time of the trial, it is now common ground that with respect to counts 1 – 3, the aide memoire was inaccurate by reason of the inclusion of the requirement that the Crown prove that the commission of the offence charged was a possible consequence of pursuing the unlawful purpose of seriously assaulting the deceased’s son. Section 8 of the Criminal Code operated once the Crown had proved a common intention to prosecute the unlawful purpose of seriously assaulting the deceased’s son and that in the prosecution of that purpose EM committed the particular offence charged. Under s 8 GM was then presumed to have aided or procured EM to commit that offence unless GM proved that he did not foresee that the commission of that offence was a possible consequence of prosecuting the unlawful purpose of seriously assaulting the deceased’s son. The directions, therefore, added an objective element of proof that the offence committed was a possible consequence of the unlawful purpose of serious assault, which element the Crown was not required to prove.

28. On one view, the addition of the objective element was to the benefit of GM. However, the trial Judge did not give a direction in terms of s 8. The absence of a s 8 direction deprived GM of the opportunity of the jury considering whether the evidence established that GM probably did not foresee that the commission of the particular offence was a possible consequence of pursuing the purpose of seriously assaulting the deceased’s son.

29. In respect of the charge in count 1 of unlawfully entering the building for the purpose of committing an offence in the building, counsel for GM conceded that the Crown had presented a very strong case.  The jury found that GM formed a common intention with EM to pursue the unlawful purpose of seriously assaulting the deceased’s son.  The evidence was overwhelming that in the pursuit of that purpose, EM committed the offence of unlawfully entering the house for the purpose of committing an offence.  Once those findings were made by the jury, it was an inescapable conclusion that GM foresaw that the commission of the offence of unlawful entry was a possible consequence of pursuing the purpose of seriously assaulting the deceased’s son.  There is no room for doubt and, with respect to count 1, the proviso should be applied.

30. Different considerations arise, however, with respect to the charges of assault in counts 2 and 3.  While it was inevitable that in pursuing the unlawful purpose of assaulting the deceased’s son EM would unlawfully enter House 13 for the purpose of committing an offence, it was far from inevitable that he would assault female occupants of House 13.  EM had not announced any intention or thought of assaulting anyone other than the deceased’s son or sons.  It was not known whether the son or sons would be present at House 13.  There was nothing in the evidence to support an inference that, in advance, GM might have foreseen that EM would assault female occupants of the house. 

31. In these circumstances, this Court cannot be confident that, if a s 8 direction had been given, the jury would not have concluded that the evidence established that GM probably did not foresee that the commission of the offence of assault on Donella Hayes or Jennifer Gorey was a possible consequence of prosecuting the unlawful purpose of seriously assaulting the deceased’s son. The proviso cannot be applied and the convictions on counts 2 and 3 must be set aside.

1. Further, in our view, it is not appropriate to order a retrial with respect to those charges. The assaults on Donella Hayes and Jennifer Gorey occurred without any warning and within a short time of the entry into House 13. There was scant evidence from which an inference could be drawn that GM foresaw the commission of the assaults as a possible consequence of pursuing the purpose of seriously assaulting the deceased’s son. Although a presumption would arise to that effect through the operation of s 8, the evidence is such that it is highly likely that a properly instructed jury would find that GM probably did not foresee the commission of either of those offences of assault as a possible consequence of the pursuit of assaulting the deceased’s son. In these circumstances, it is not appropriate to order a retrial and the convictions for those assaults will be quashed.

   Count 4 - Murder

2. As to murder, the aide memoire set out the elements to be proven and information as to various words and concepts in the following terms:

   “7.1In order to convict the accused, Grant Mulkatana, of murder you must be satisfied beyond reasonable doubt of all of the following elements:

   7.1.1That Ernest Mulkatana committed the offence of murder (see 2 above);

   7.1.2That Grant Mulkatana in fact aided or abetted Ernest Mulkatana to commit the offence of murder (see 2 above);

   7.1.3That Grant Mulkatana intended:

   7.1.3.1that his conduct would aid or abet Ernest Mulkatana to commit the offence of entering House 13 at Hidden Valley Camp, to commit the crime of unlawfully causing serious harm (see 4.1, 4.4.1 and 4.5.3 above);

   AND

   7.1.3.2he was reckless about the commission of the offence of murder or manslaughter that Ernest Mulkatana in fact committed.

   …

   7.4     Notes:

   7.4.1  “Aided” means to give help, support or assistance to.

   7.4.2  “Abetted” means to encourage or countenance.

   7.4.3  “Reckless” – see 3.5.2 above.

   7.4.4  “Intoxication”

   7.4.4.1In relation to 7.1.3.1 the state of intoxication (if any) of the accused must be taken into account in determining whether the Crown has proved, beyond reasonable doubt, that the accused by his conduct did aid or abet Ernest Mulkatana to commit the offence of entering House 13 at Hidden Valley Camp, to commit the crime of unlawfully causing serious harm;

   7.4.4.2In relation to the element “reckless” (7.1.3.2 above) the state of intoxication (if any) of the accused must be taken into account.”

3. The definition of “reckless” in par 3.5.2 was as follows:

   “3.5.2 “Reckless”

   The accused would be reckless in relation to causing the death of Tarzan Loo if you are satisfied beyond reasonable doubt, both that –

   3.5.2.1he was aware of a substantial risk that the death would happen;

   AND

   3.5.2.2having regard to the circumstances known to him, it was unjustifiable to have taken that risk.”

4. In order to prove the crime of murder by way of aiding and abetting, the Crown was required to prove that GM knew all the essential facts of the crime of murder committed by EM.  This knowledge had to exist at the time that GM aided and abetted EM to commit the crime of murder.  The Crown was required to prove that GM was aware that EM was unlawfully striking blows to the deceased and that, at the time EM was striking those blows, EM intended to cause serious harm to the deceased.  However, the requirement of proof of this knowledge was not set out in the aide memoire.

5. In his directions to the jury, the trial Judge first dealt with the charges against EM and then turned to discuss the case with respect to GM.  His Honour took the jury to the aide memoire and explained the meaning of aiding and abetting.  Following that explanation his Honour gave this direction:

   “And in relation to Grant Mulkatana, what you must take into account is that he knew all of the essential facts or circumstances that have to be established in order to show that the offence was committed by Ernest Mulkatana.  That does not matter that he did not know that those facts and circumstances amounted to an offence as long as he knew all of the essential facts and circumstances which established – which had to be established to show that Ernest Mulkatana had committed the crime of murder or manslaughter and I have been through those.

   And the second aspect is that he, with that knowledge of those facts and circumstances intentionally assisted or encouraged Ernest Mulkatana to commit the crime of either murder or manslaughter. …”

6. The trial Judge did not follow the usual practice of orally spelling out the elements of each offence to be proven by the Crown.  In the main his Honour left it to the jury to read the aide memoire on the basis that the aide memoire was self-explanatory and contained all the elements to be proven.  However, the aide memoire was incomplete with respect to the elements of aiding and abetting the crime of murder because it did not spell out the knowledge that the Crown had to prove was possessed by GM at the time he aided and abetted EM in EM’s attack upon the deceased.  In this respect the aide memoire was deficient and did not identify all the matters to be proved by the Crown in order to establish that GM was guilty of murder on the basis that he aided and abetted the commission of that crime by EM.

7. In these circumstances, bearing in mind the importance of the aide memoire and the absence of full oral directions concerning the matters to be proven, in our view the oral directions concerning knowledge of the essential facts or circumstances were inadequate.  They failed to bring home to the jury the requirement that the Crown prove not only knowledge of the particular act, but knowledge of an intention on the part of EM to cause serious harm. 

8. The question of the knowledge possessed by GM was a critical question in the trial, particularly bearing in mind that he was affected by alcohol.  In addition, on the Crown case the common intention to do payback to the deceased’s sons had been replaced in a short space of time during the violent events in House 13 by an intention to aid and abet EM with knowledge that EM intended to cause serious harm to the deceased.  In our view it was important for this aspect to be spelt out clearly to the jury and for the jury to be reminded of the evidence which bore upon this question.

9. As to recklessness, the aide memoire correctly set out that the Crown was required to prove that GM was reckless as to the commission of the offence of murder.  The definition of “reckless” was not set out in the same section of the aide memoire.  Rather, the jury was referred back to para 3.5.2 for the definition of “reckless”.  In our view it would have been preferable for the definition to be set out in the same section in which the elements for aiding and abetting were identified, but the cross-referencing itself would not give rise to a miscarriage.  However, recklessness in this context required that the Crown prove that at the time that EM struck the blows to the deceased, GM not only intended that his conduct would aid and abet EM, but he was aware of a substantial risk that death would happen.  Again, this involved an assessment of the state of mind of GM and it was important for the jury’s attention to be drawn to the facts that might bear upon that question.  This assistance was not given to the jury.

10. In the particular circumstances of this case, in our opinion the directions were inadequate in failing to draw the attention of the jury to evidence and facts that might bear upon the state of mind and knowledge of GM at the time that EM struck the blows to the deceased.  This need was particularly acute because the common intention at the outset was not to do payback to the deceased.  It was to do payback to the deceased’s son.  The switch of attention to the deceased occurred spontaneously in a short period of violence inside House 13.  It was necessary for the jury to give careful consideration to the evidence that bore upon the question of whether, in those quickly changing circumstances, the Crown had proved that GM thought about the possible consequences to the extent that, at the time the fatal blows were struck by EM, he had an awareness of a substantial risk that death would happen as a consequence of those blows.  Bearing in mind that it was possible that the first blow was the fatal blow, in substance it was necessary for the Crown to prove that as EM was about to strike the deceased, GM was not only aware that EM would strike the deceased, but was also aware of the substantial risk of death being caused by the blows.

11. In our view, the absence of appropriate instruction in the aide memoire and the failure to relate the facts to the issues concerning the knowledge or awareness of GM resulted in a miscarriage of justice and GM’s conviction for murder must be set aside.  In all the circumstances it is appropriate to order a retrial.

-----------------------------------

[1] (1986) 133 LSJS 110 at 117.

[2] (1980) 7 A Crim R 51 at 53.

[3] (2006) 94 SASR 177.

[4] (2006) 94 SASR 177 at 187.

[5] Ladd v The Queen (2009) 229 FLR 386 at [116].

[6] R v Hofschuster (1992) 65 A Crim R 167; The Queen v Roberts (2009) NTSC 44.

[7] (1984) 153 CLR 521 at 558.

[8] (2002) 76 ALJR 402.

[9] (2002) 76 ALJR 402 at [181] – [182].

[10] Gleeson CJ and Hayne J found that the issue did not arise in the circumstances of the case [37] and [38] and Gaudron J, in dissent, held that there were matters of pure science involved and these “could not be resolved by preferring one body of expert evidence to another” [125].

[11] These and later blows were the acts said by the Crown to have caused the fatal injury.

[12] The push and threat were the basis of the charge of assaulting Jennifer Gorey.