Napier v The State of Western Australia

[2008] WASCA 106

NAPIER -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 106

Reported Decision:	(2008) 36 WAR 543
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASCA 106
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:123/2007	Heard:	19 MARCH 2008
Coram:	STEYTLER P McLURE JA BUSS JA	Delivered:	7/05/08
No of pages:	23	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	A
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Parties:	WAYNE ROBERT NAPIER THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Procedure Application for an extension of time in which to appeal against conviction for wilful murder Second application for an extension First application for an extension dismissed in 1992 Delay of 15 years between applications Principles governing the capacity of the court to entertain a second application for such an extension Whether the application is regulated by the Criminal Code (WA) or the Criminal Appeals Act 2004 (WA) Application of principles derived from Grierson v The King and Matta v The Queen Criminal law Consideration of merits Adequacy of directions to the jury by trial judge Directions concerning s 7 and s 8 of the Criminal Code (WA)
Legislation:	Criminal Appeals Act 2004 (WA), s 23(1), s 27, s 40(1)(l) Criminal Code (WA), s 7, s 8, s 21, s 688, s 695 Interpretation Act 1984 (WA), s 37(1) Sentencing Act 1995 (WA), s 140(1)(a)
Case References:	Alford v Magee (1952) 85 CLR 437 Burrell v The Queen [2008] HCA Trans 128 Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 Ejueyitsi v Maloney [2006] WASC 146 Ejueyitsi v Maloney [2007] WASCA 3 Fisher v Hebburn Ltd (1960) 105 CLR 188 Geraldton Building Co Pty Ltd v May (1977) 136 CLR 379 Grierson v The King (1938) 60 CLR 431 K v The Queen [2007] WASC 31 Mathieson v Burton (1971) 124 CLR 1 Matta v The Queen (1995) 126 FLR 127 Maxwell v Murphy (1957) 96 CLR 261 Myer Melbourne Ltd v Hammond [1984] VR 40 Napier v The Queen (Unreported, WASCA, Library No 920517, 9 October 1992) Narkle v The Queen (Unreported, WASCA, Library No 6108, 2 December 1985) R v AJS [2005] VSCA 288; (2005) 12 VR 563 R v Andrakakos [2003] VSCA 170 R v Zilm [2006] VSCA 72; (2006) 14 VR 11 Ridgeway v The Queen (1995) 184 CLR 19 RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 Stone v The Queen (1989) 42 A Crim R 189 Worrall v Commercial Banking Co of Sydney Ltd (1917) 24 CLR 28 Yrttiaho v Public Curator (Qld) (1971) 125 CLR 228

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : NAPIER -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 106 CORAM : STEYTLER P

McLURE JA
BUSS JA

HEARD : 19 MARCH 2008 DELIVERED : 7 MAY 2008 FILE NO/S : CACR 123 of 2007 BETWEEN : WAYNE ROBERT NAPIER

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MURRAY J

File No : INS 39 of 1990

Catchwords:

Criminal law - Procedure - Application for an extension of time in which to appeal against conviction for wilful murder - Second application for an extension - First application for an extension dismissed in 1992 - Delay of 15 years between applications - Principles governing the capacity of the court to

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entertain a second application for such an extension - Whether the application is regulated by the Criminal Code (WA) or the Criminal Appeals Act 2004 (WA) - Application of principles derived from Grierson v The King and Matta v The Queen

Criminal law - Consideration of merits - Adequacy of directions to the jury by trial judge - Directions concerning s 7 and s 8 of the Criminal Code (WA)

Legislation:

Criminal Appeals Act 2004 (WA), s 23(1), s 27, s 40(1)(l)

Criminal Code (WA), s 7, s 8, s 21, s 688, s 695
Interpretation Act 1984 (WA), s 37(1)
Sentencing Act 1995 (WA), s 140(1)(a)

Result:

Application dismissed

Category: A

Representation:

Counsel:

Appellant : Mr A J Maughan
Respondent : Mr S E Stone

Solicitors:

Appellant : Andrew Maughan & Associates
Respondent : Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Alford v Magee (1952) 85 CLR 437
Burrell v The Queen [2008] HCA Trans 128
Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
Ejueyitsi v Maloney [2006] WASC 146
Ejueyitsi v Maloney [2007] WASCA 3

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Fisher v Hebburn Ltd (1960) 105 CLR 188
Geraldton Building Co Pty Ltd v May (1977) 136 CLR 379
Grierson v The King (1938) 60 CLR 431
K v The Queen [2007] WASC 31
Mathieson v Burton (1971) 124 CLR 1
Matta v The Queen (1995) 126 FLR 127
Maxwell v Murphy (1957) 96 CLR 261
Myer Melbourne Ltd v Hammond [1984] VR 40
Napier v The Queen (Unreported, WASCA, Library No 920517, 9 October 1992)
Narkle v The Queen (Unreported, WASCA, Library No 6108, 2 December 1985)
R v AJS [2005] VSCA 288; (2005) 12 VR 563
R v Andrakakos [2003] VSCA 170
R v Zilm [2006] VSCA 72; (2006) 14 VR 11
Ridgeway v The Queen (1995) 184 CLR 19
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Stone v The Queen (1989) 42 A Crim R 189
Worrall v Commercial Banking Co of Sydney Ltd (1917) 24 CLR 28
Yrttiaho v Public Curator (Qld) (1971) 125 CLR 228


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1 STEYTLER P: On 15 June 1990 the appellant was convicted, after a trial, of wilful murder. On 20 March 1992 he filed a notice of appeal against his conviction. Because he was some 20 months out of time, he lodged an application for an extension of time within which to appeal (first application). The application was heard by the Court of Criminal Appeal on 2 September 1992. On 9 October 1992 the court delivered judgment refusing the extension of time: Napier v The Queen (Unreported, WASCA, Library No 920517, 9 October 1992) (Pidgeon, Nicholson & Walsh JJ).

2 On 3 October 2007, 15 years later, the appellant lodged an application for leave to appeal against his conviction and for an extension of time for that purpose (second application). A question arises whether the second application is competent, given the dismissal of the first application.

The first application

3 At the time of the first application the position was regulated by s 688(1) of the Criminal Code (WA) (Code). That section afforded the appellant an appeal, as of right, against his conviction on any ground which involved only a question of law and, with leave, on any ground of fact or mixed fact and law. Some of the appellant's grounds (drafted by him without legal assistance) appear to have raised legal questions. Others raised mixed questions of fact and law. Section 695(1) of the Code then provided that a notice of appeal, or an application for leave to appeal, must be lodged within 21 days of the date of conviction. The section also provided that:

The time within which notice of appeal or notice of an application for leave to appeal may be given may be extended at any time by the Court of Criminal Appeal, and such extension may be ordered although the application for the same is not made until after the expiration of the time appointed.

4 When considering the first application, the court applied the following extract from the judgment of Burt CJ in Narkle v The Queen (Unreported, WASCA, Library No 6108, 2 December 1985):

This court has on a number of occasions pointed out that the time limit fixed by s 695(1) of the Code must be taken seriously and every effort must be made to comply with it. The section contains no express criteria controlling the court's discretion to extend time and in that sense it can be said that the discretion is unfettered. But that is not to say that it will be exercised as of course. It should only be exercised upon facts shown which in the judgment of the court appear positively to call for its exercise

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and the onus upon an applicant for extension of time will of course increase as the time goes by. A delay of 4 1/2 months as in this case, can only be described as gross and it would be necessary to show very special circumstances indeed to sustain the exercise of this court's discretion to extend time to that extent. Those circumstances may explain and excuse the delay or they may relate to the grounds of appeal and indeed the latter consideration may become and will become dominant should it appear that there has been a manifest miscarriage of justice.

5 The court found that the delay was inexcusable and that the application should be refused unless this would leave a miscarriage of justice unremedied. Having considered each of the grounds of appeal, the court concluded that none had any substance, that there had been no miscarriage and that the application should be dismissed.

The second application

6 The appellant's current notice of appeal raises only one ground. This ground was not raised in 1992. It reads as follows:

1. The learned trial Judge erred in his directions to the jury as to the proper applications of sections 7 and 8 of the Criminal Code to the facts of this case. His Honour failed to give adequate directions to the jury to enable them to apply the law to the facts before them.

Particulars
1.1 The learned trial Judge did not explain how the law might be applied to the facts of this case.

1.2 The learned trial Judge merely told the jury about the possible permutations of verdicts they might reach.

1.3 Although the learned trial Judge summarised the Crown case and the submission made by the Appellant's counsel in his defence, that was insufficient to discharge the Judge's responsibility of identifying the real issues arising from the Crown and defence cases and directing the jury how the law applied to those issues.

1.4 The learned trial Judge erred in simply leaving it to the jury to work out how they might arrive at the various possible verdicts on the facts as they found them to be.

7 The appellant's explanation for his delay in seeking leave to raise this ground is offered in an affidavit sworn by him on 3 October 2007. He says that, on 22 June 2007, his fiancé approached a barrister for assistance in appealing the sentence of imprisonment imposed upon him in 1990. This was because he believed that the sentence had not taken into account
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time spent by him on remand awaiting trial. The barrister read the transcript of the trial. He advised that there were grounds for appealing against the conviction. The second application was subsequently filed.

Competence of the second application

8 It did not immediately occur to the solicitor for the appellant that there might be a problem in bringing a second application for an extension of time after the first application had been dismissed. The appellant's case filed in support of the second application did not address the issue. When invited by the court to do so, the solicitor filed further submissions in respect of it. Those submissions endeavoured to address the considerable obstacle in the path of the second application presented by Matta v The Queen (1995) 126 FLR 127, a decision of the Court of Criminal Appeal in this state in which the principle enunciated by the High Court in Grierson v The King (1938) 60 CLR 431 was applied in circumstances similar to those in the present case.

Grierson v the King

9 In Grierson, the appellant was convicted in December 1932. He appealed to the Court of Criminal Appeal in New South Wales. His appeal was dismissed in March 1933. In August 1933 he applied to the High Court for special leave to appeal. This was refused. He later applied to the Court of Criminal Appeal to re-open his original appeal or for leave to bring a fresh appeal. He said that facts had become known concerning a material witness for the Crown which might affect his conviction. The Court of Criminal Appeal held that a second appeal from a conviction could not be entertained after the dismissal, upon the merits, of an appeal or application for leave to appeal. It also held that the first appeal could not be re-opened after a final determination. The appellant applied to the High Court for special leave to appeal against those findings.

10 In the High Court, Rich J held (434) that the statutory jurisdiction of the Court of Criminal Appeal did not allow the re-opening of an appeal decided on its merits. He said that statutory provisions that enabled the Minister of Justice to refer any petition for the exercise of the pardoning power to the Court of Criminal Appeal, and for the case then to be heard and determined as if it were an appeal, recognised the limited nature of the jurisdiction of the Court of Criminal Appeal in this respect. Starke J was content merely to agree (435) with the reasons given by Jordan CJ for the decision of the Court of Criminal Appeal. Dixon J said that the statutory powers conferred upon the Court of Criminal Appeal did not

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give a general appellate power in criminal cases that was exercisable on grounds and by a procedure discoverable from independent sources. He said (435) that the governing statute defined the grounds, prescribed the procedure and stated the duty of the court. He agreed with the Court of Criminal Appeal that the determination of an appeal was definitive and (436) that no 'considerations controlling or affecting the conclusion to be deduced from … [the applicable statutory provisions] are supplied by analogous civil proceedings'. He went on to say (436, 437):

Under the Judicature system … no court has authority to review its own decision pronounced upon a hearing inter partes after the decision has passed into a judgment formally drawn up (In re St Nazaire Co (1879) 12 Ch D 88 [9]). If the prisoner has abandoned his appeal, the Court of Criminal Appeal in England will exercise a discretion to allow him to withdraw his notice of abandonment, notwithstanding that it operates as a dismissal of the appeal … But in such a case there has been no determination by the court, and there is no English case in which, after such a determination, an appeal has been reopened or a fresh appeal has been entertained.

McTiernan J agreed with each of Rich and Dixon JJ (437).

Matta v The Queen

11 In Matta, the applicant was convicted in September 1992 of Commonwealth and State drug-related offences. On 17 February 1995, some 29 months after his conviction, he filed an application for an extension of time to appeal. On 19 May 1995 the application to extend time was refused. No merit was seen in the proposed grounds. On 10 July 1995 he filed another notice of application for an extension of time within which to appeal. This was based on grounds that relied upon a decision of the High Court (Ridgeway v The Queen (1995) 184 CLR 19) made subsequent to his conviction. The question arose whether the second application was competent. Pidgeon J (Rowland & Owen JJ concurring) referred (129) to what had been said by Malcolm CJ in Stone v The Queen (1989) 42 A Crim R 189, 191 as follows:

Section 688 of the Criminal Code and similar provisions in other jurisdictions have been consistently construed by the courts as allowing an applicant but one appeal as of right or by leave. When such an appeal is dismissed on its merits, the right of appeal … is exhausted: Grierson (1938) 60 CLR 431; Shannon v The Queen (1982) 32 SASR 5 at 7-8.

Pidgeon J went on to say:

This would apply even though different grounds are put forward in the second application. It was so held by the Court of Appeal in New Zealand

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in R v Wickliffe [1986] 1 NZLR 4. The order made by the Court at the earlier hearing was an order that time be refused and time was refused on the basis that the proposed grounds had no merit. As it was a refusal of time as distinct from a refusal for [sic] application for leave, can it be submitted that it is in a different category? In my view, the reasons of Sir Owen Dixon in Grierson indicate that it makes no difference that the first application is an extension of time. His Honour considered that the principles apply to both an appeal or application for leave to appeal and I would consider that similar reasoning would apply to an extension of time. As his Honour said, the statutory provision defines the grounds, prescribes the procedure and states the duty of the court. Part of the prescribed procedure is set out in s 695 of the Criminal Code. This provides that where a person desires to appeal, he must give notice within 21 days. It provides specifically that the time within which notice is to be given may be extended. As the applicant was out of time on the first occasion, his only means of approach to this Court is by making an application to extend time under s 695. The consideration of the earlier application involved a consideration of the merits of the grounds then proposed. The principles I have outlined show that it is not open to make a further application to extend time on different grounds.

…

I do not consider it makes any difference that the State count was not considered on its merits. On this point I agree with the observations of Owen J. It is not open to lodge separate appeals on each count of a multiple indictment. There is one appeal.

12 This last reference is one to additional observations that were made by Owen J. He mentioned (131) that the grounds that the applicant had sought to raise had been acknowledged by the respondent to be such as 'would almost certainly succeed were the appeal competent', so far as the convictions on the two Commonwealth counts were concerned. However, he held that, because the earlier refusal to extend time had been based, at least in part, on an assessment of the grounds of proposed appeal, a further appeal was incompetent. He said, in that respect:

Once an appeal has been heard on the merits, all statutory rights of appeal have been exhausted. Any further appeal is incompetent: Grierson (at 435 - 436). It matters not that the second application proceeds on different grounds from those advanced on the earlier occasion: Grierson (at 432); Vella v The Queen (1991) 4 WAR 278. The same principle applies whether the problem arises in a substantive appeal or in an application to extend time: R v Smith (No 2) [1969] QWN 50.

13 Owen J went on to consider whether the position should be different so far as the application concerned the conviction on the State count. He said, in that respect, that the earlier grounds of appeal had been drafted so
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as to challenge the convictions on both State and Commonwealth counts. However, when the matter came before the court, counsel for the applicant had announced that the appeal would be pursued only in relation to the Commonwealth convictions. He did not formally abandon the application for an extension of time within which to appeal against the State convictions and nor did he formally amend the application. Owen J said, in this respect (132):

Counsel for the applicant indicated to this Court that when the decision was made not to pursue the appeal in relation to the State counts the decision in Ridgeway was known to those advising the applicant but a position had not been taken on it. No mention was made to the Court in the earlier proceedings that the grounds might be enlarged to encompass the Ridgeway principle. In the circumstances I think that the dismissal by the Court of the application for an extension of time in the earlier proceedings must be taken to be a dismissal of the application in relation to all convictions. In my opinion the application to this Court, so far as concerns the State count, is also incompetent and must be dismissed.

The appellant's contentions

14 In the present case, counsel for the appellant does not challenge the decision in Matta. He accepts that it was correctly decided (as does counsel for the respondent). However, he contends that the second application is governed by the Criminal Appeals Act 2004 (WA) (Act) and that Matta has no application under the new appellate regime provided by the Act. This last submission is founded upon s 27(1) and s 40(1)(l) of the Act.

15 Counsel for the appellant contends that s 27(1) (which provides that the leave of the Court of Appeal is required for each ground of appeal from a superior court) creates a right of appeal for a convicted person and, by doing so, confers jurisdiction on the Court of Appeal to hear the appeal. That proposition might more soundly be based upon the provisions of s 23(1) of the Act. That section provides, amongst other things, that an offender convicted of an offence on indictment may appeal to the Court of Appeal against the conviction.

16 Section 40(1)(l) provides that, for the purposes of dealing with an appeal, an appeal court may exercise any power that the Supreme Court may exercise in a civil case. Counsel for the appellant contends that, in the civil jurisdiction, a second application for leave to appeal, and for an extension of time for that purpose, may be made even if the first is refused. He argues that this section overrides what was held in Grierson and Matta.

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17 Counsel for the appellant also relies on the decision of the High Court in an application for special leave in Burrell v The Queen [2008] HCA Trans 128. He suggests that that case supports the proposition that the 'qualifications' to the principle applied in Grierson are not closed.

Is the second application competent?

18 The second application in the present case is one for an extension of time within which to seek leave to appeal. It is not an application to re-open an appeal or a fresh appeal after an earlier appeal had been decided on the merits. However, if Matta was correctly decided, as the appellant accepts it was, then Grierson applies to the second application as much as it would to a fresh appeal of the kind mentioned or to the re-opening of an appeal. Consequently, the second application can only be competent if it is governed by the Act and if the Act has done away with the decision in Matta.

19 In my opinion, that contention falls at the first hurdle. The Act has no application to this case. The only rights, in relation to an appeal, that the appellant has are those given to him by the Code. That was the legislation applicable at the time of his conviction and at the time of the first application. Although both counsel suggested to us that the Act regulated the second application, neither was able to say why, other than by pointing to the fact that the second application was brought after the Act came into operation. That seems to me to be irrelevant. The right of appeal given to an appellant is a substantive right and the Act is not expressed to operate retrospectively.

20 Generally, under the common law, a statute changing the law should not, in the absence of clear language to that effect, be understood as applying to events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to past events: Maxwell v Murphy (1957) 96 CLR 261, 267 (Dixon CJ). An enactment is prima facie construed as not attaching new legal consequences to events which occurred before its commencement: Fisher v Hebburn Ltd (1960) 105 CLR 188, 194 (Fullagar J); Geraldton Building Co Pty Ltd v May (1977) 136 CLR 379, 399 - 400 (Stephen J), 401 (Mason J); Mathieson v Burton (1971) 124 CLR 1, 22 (Gibbs J).

21 The position under s 37 of the Interpretation Act 1984 (WA) generally accords with the common law. That section provides (relevantly) that, where a written law repeals an enactment, the repeal does not, unless the contrary intention appears, affect any right or

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privilege acquired, or any duty or obligation incurred, prior to the repeal, or any legal proceeding or remedy in respect of a right or privilege, 'and any such … legal proceeding or remedy may be instituted or enforced as if the repealing written law had not been passed or made'.

22 The option of appealing against a conviction to a higher court is a right. In Worrall v Commercial Banking Co of Sydney Ltd (1917) 24 CLR 28, 31, Barton, Isaacs and Rich JJ said, in this respect, 'Procedure may and generally does surround it, but the central notion of an appeal is undoubtedly a right'. Where an appeal can no longer be brought under the legislation which provided for it, the right is exhausted and any legislation which revived that right would have a substantive, and not procedural, effect: see, in a civil context, Myer Melbourne Ltd v Hammond [1984] VR 40, 46 - 49 (Crockett, Kaye & Gray JJ); Yrttiaho v Public Curator (Qld) (1971) 125 CLR 228, 241 (Gibbs J); Maxwell 277 - 278 (Williams J); see also Ejueyitsi v Maloney [2006] WASC 146 [56] - [68] (Hasluck J) and, on appeal, Ejueyitsi v Maloney [2007] WASCA 3 [6] (Wheeler JA); K v The Queen [2007] WASC 31 [49] - [52] (Hasluck J). There is nothing in the Act to suggest that it was intended to have that effect.

23 Under the Code, there was no right to bring a second appeal merely because some new proposition, not previously argued, had occurred to the appellant: Stone, 191; Matta, 129. The provisions of the Code are similar in effect to those considered in Grierson. Not surprisingly, there is nothing in ch LXIX (dealing with appeals) to suggest that more than one appeal on the merits from the same judgment was contemplated. The legislation assumes that a right of appeal may be exercised only once. That, no doubt, is why s 21 of the Code afforded a right to the Attorney-General, 'on the consideration of any petition for the exercise of Her Majesty's mercy having reference to the conviction of a person on indictment' or to the sentence imposed, to refer the whole case to the Court of Criminal Appeal to 'be heard and determined by [it] as in the case of an appeal by a person convicted' (see, now, s 140(1)(a) of the Sentencing Act 1995 (WA)).

24 An application for an extension of time within which to appeal is interlocutory. A decision given on an application of that kind is not a final decision on the merits of the appeal. Nor is the second application one to re-open an appeal. Notwithstanding this, both parties accept, as I have said, that Matta was correctly decided. They agree that, if applicable, it governs this case. It follows, from my conclusion that the question whether there is an entitlement to bring the second application is

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answered by the former legislation and not by the Act, that Matta should be regarded as applicable. Consequently, because the refusal of the first application resulted from a consideration of the merits of the grounds of appeal then proposed, the decision is to be treated, for present purposes, as if it was one to dismiss the appeal. The second application is accordingly incompetent and should be dismissed.

25 I should also comment on the appellant's contentions concerning the decision of the High Court in Burrell. That case dealt with the question whether the Court of Criminal Appeal (NSW) had been entitled to re-open an appeal in circumstances in which it had made a number of factual errors in reliance on written submissions that had been placed before it. It was common cause between the parties that Grierson was applicable. The only point in issue was whether there was a qualification to the principle applied in Grierson that covered the situation that had arisen in Burrell. The appellant contended that there was not. The respondent contended that what had occurred amounted to a denial of procedural fairness or a failure to hear the appeal on its merits. Special leave was granted as regards the question whether the Court of Criminal Appeal had had jurisdiction to re-open the appeal. The High Court decided no more than that special leave should be granted. Nothing was said that should lead to the conclusion that it gave any consideration to the question whether any 'qualifications' to the Grierson principle are, or are not, closed. I have said that counsel for the respondent, in Burrell, supported the right to re-open upon the basis that there had been a denial of procedural fairness or a failure to hear the appeal on its merits. The first of those alternatives seems to me merely to be a sub-set of the second. Nothing in Burrell assists the appellant.

Merits of the second application

26 Notwithstanding that it is unnecessary to do so, I will deal with the merits of the application for leave to appeal.

27 I have said that there is only one ground of appeal, to the effect that the trial judge's directions to the jury concerning the application of s 7 and s 8 of the Code were not adequate to enable the jury to apply the law to the facts. That contention requires consideration of the prosecution case, the defence case and, of course, the relevant directions given by the trial judge.

The prosecution case

28 The prosecution case was as follows.

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29 On 1 September 1989 the appellant and a co-offender, William Monaghan, were drinking together at the Gosnells Hotel. So, too, was Mr David Locke. Locke intended to give evidence against persons involved in a racist organisation known as the Australian National Movement. Neither Monaghan nor the appellant wanted Locke to do so. Both were moderately intoxicated. An argument broke out between Monaghan and Locke. Locke went to a nearby fast-food outlet (restaurant) to get something to eat. Monaghan and the appellant discussed what had been said by Locke. They decided, at least, to assault him. They agreed that the appellant would go to the restaurant and entice Locke into nearby parkland. The appellant would tell Locke that the appellant and Monaghan had arranged a lift for him. Monaghan would lie in wait in the parkland. Locke would then be assaulted. The appellant went to the restaurant. Monaghan, in the meantime, armed himself with two iron brackets taken from an old sign. He carried them into the parkland behind the restaurant.

30 The appellant succeeded in luring Locke into the parkland. Monaghan attacked him. He broke free and ran away. The appellant was by then armed with one of the iron bars. Monaghan still had the other. The two men chased Locke. They caught him and savagely assaulted him. Locke was struck with the iron bars, around his head and face, with enormous ferocity. The assault knocked him unconscious. It caused massive brain injuries that would probably have been fatal. The appellant and Monaghan dragged Locke to the edge of the nearby Southern River. There, the appellant struck Locke with a piece of wood taken from the branch of a tree. The appellant was carrying a knife in a sheath on his belt. Monaghan took the knife and used it to cut Locke's throat. The two men threw his body into the river. They returned home, cleaned themselves and continued drinking.

31 The prosecutor submitted to the jury that there were three possible avenues by which the jury could find the appellant guilty of wilful murder. The first was if they found that he had formed an intention to kill Locke and was therefore guilty as a principal under s 7(a) of the Code. The second was if they found that the appellant had done an act or acts for the purpose of enabling or aiding Monaghan to commit the offence of wilful murder or had aided Monaghan in committing that offence: s 7(b) and s 7(c) of the Code. The third was if they found that the appellant and Monaghan had formed a common intention to prosecute an unlawful purpose in conjunction with one another, in the prosecution of which purpose the offence of wilful murder was committed, having been a

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probable consequence of the prosecution of the purpose: s 8(1) of the Code.

32 The material parts of s 7 and s 8 of the Code read as follows:

7. When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say -

(a) Every person who actually does the act or makes the omission which constitutes the offence;

(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) Every person who aids another person in committing the offence;

…


8. (1) When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.

…

The defence case

33 In his evidence at the trial, the appellant denied that he had ever intended to kill or even to do serious harm to Locke. He said that he had intended only to frighten him. He had not known that Monaghan would arm himself with an iron bar or that he would bring one for use by the appellant. The appellant said that he had not aimed at Locke's head when hitting him. However, he also said that, after hitting Locke a couple of times, he did not remember what he was doing, although he knew that he was hitting Locke with the iron bar. He had lost his temper when matters had become 'uncontrollable'. He acknowledged having assisted Monaghan to drag Locke to the riverbank, but said that he had not intended to throw Locke into the river. All he had wanted to do was to move him out of the light and to attempt to revive him with the river water. He admitted to having struck Locke with a piece of wood while on the river bank. He said that he did so because he had thought that Locke had started to get up in order to walk off. He said that he was unaware

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that Monaghan had grabbed his knife. He did not know how Monaghan had succeeded in getting the knife out of the buttoned sheath on his belt.

34 Monaghan did not give evidence at the trial. However he participated in a video recorded interview with police that was played to the jury. In it, he acknowledged that, during the assault, he had been in a 'frenzy' and could not stop. When asked what the appellant had been doing at the time of the attack, he said that the appellant had 'apparently' been a few metres behind him and that he had been shouting something. He said that he turned around and grabbed the appellant's knife out of his pouch. He said that he had first asked the appellant for the knife and the appellant had refused to give it to him. He said that neither he nor the appellant had intended to kill or cause grievous bodily harm to Locke. It was only when he had grabbed the knife from the appellant's belt that he, alone, had formed the intention to 'effect Locke's death'.

The trial judge's directions to the jury

35 When he came to direct the jury in respect of s 7 and s 8 of the Code, the trial judge commenced by saying (ts 297):

So I now move to an area which is crucial and central in this case, and that deals with what is properly to be called a criminal complicity so far as you find it to be, if you find it to be, of each of these accused persons. There are a number of rules about it and I am going to take some little time to explain them to you as clearly as I am able and perhaps you might see as we go on it is more important with respect to one than the other of the two accused men but nonetheless it relates to the situation of each of them and I give you the directions in general terms.

I will avoid, I have decided, saying very much to you about the particular factual circumstances which apply to each. I want to avoid saying anything to you which might unduly indicate to you whether I have a view or what my view might be and I want to avoid unduly guiding or directing your deliberations on this area of the case any more than I need to to give you clear guidance as to the relevant law that is applicable …

36 He turned to s 7 of the Code. After reading the provisions of s 7(a), he said (ts 299):

There is nothing very difficult about that. The person who actually causes the death, with a relevant intent or without it, would be guilty of one of the forms of homicide of which we have been speaking: a person whose conduct actually produces the result, every person who actually does the act or makes the omission which constitutes the offence.

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Immediately you are thrown into this area of considering: what are we about to find about the acts which were done by each of the accused men; what are we able to find beyond a reasonable doubt was the consequence in terms of the causal relationship between those acts and the occurrence of death in each case. If the jury is able to find, in relation to either of these accused persons that that person alone did acts which themselves were sufficient, operating either alone or together with other acts, to cause the death, then you have a person who is a person who has actually done the act or made the omission which constitutes the offence.

It is quite sufficient then to say that person is implicated - was a word that I have been using from time to time - in that way, that very direct and simple way in the commission of the offence. You would go on to consider what that person's state of mind was, what that person's intent was at the time that he did the acts or act as you find them to be which caused the death.

37 After making some observations concerning intention or state of mind, the trial judge said (ts 300):

That is a matter for your judgment; that is your central fact finding responsibility which is brought to play at that point and so that is a matter of particular importance. Now, you could, on the evidence in this case, draw a conclusion of criminal complicity in relation to each of the accused persons before you simply by that process and considering whether or not that person, whether each of the accused persons was a person who alone did acts which were sufficient in themselves to cause death.

38 He then addressed the prospect that the two offenders might have had different intentions. He said:

Their intents might be different and the results do not need to be the same by that process and you could find that one person did the acts quite sufficient to cause death with an intent, let us say just for argument's sake, to do grievous bodily harm, in which case so far as that person is concerned the proper verdict might be murder; you might take the view that the other person, while doing acts quite independently but which operated to produce death and was sufficient in themselves to do so, did those acts without you being satisfied beyond a reasonable doubt that he possessed that intent or the intent to kill, in which case, so far as he was concerned, his criminal complicity would be represented by a verdict, a proper verdict, of manslaughter.

There is that situation that might apply. You will see, I am sure, that even at that point as we talk about that aspect of the matter, how important it is to make findings or how important it will be for you to make findings about what you found each person to have done, independently himself, and what effect, what causal effect you find those acts to have produced in the process of causing death.

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39 The trial judge then dealt with the situation that would arise if only one of the accused (first accused) was found to fall within s 7(a) of the Code. He said that, in such a case, the jury would be obliged to consider whether the other accused (second accused) fell within either of s 7(b) and s 7(c) of the Code. Having told them about those provisions, he went on to say (ts 302 - 303):

Now, these are simply different forms of act, and you will see what they are concerned with is not acts which directly produce the offence themselves, but are associated with it - are involved with it. Let us talk about a robbery, for example. The offender who goes into the bank and steals - making the threat by presenting the weapon to the teller - is a person who has directly committed the offence of robbery. He is the person who actually did the act which constitutes the offence, do you see? The person who drove him there, and will drive him away again when he successfully rushes from the bank with a bag full of loot - the getaway driver - he is a person who has firstly done an act which enabled the first person to commit the offence; he got him there, for the purpose of committing the offence, and will drive him away again, and so he has aided him in that way.

He did not hold his arm and make sure that he held the gun in a threatening way when he got there; he did some other acts which aided, which supported, which encouraged - he participated in some other way. He was not simply a bystander; he was a person who was involved in the production, in the event, if you like, without actually going so far as to actually do the acts himself. So that tells you something about what aiding is. Now, a person who lured another to a place where he was to be bashed, knowing that that was to happen, would be a person who had done an act perhaps you might find - and it is a matter for you - enabling that bashing to take place.

A person who took weapons; a person who provided weapons, or a person who simply participated in a joint assault as the two were going on, who lent his aid or his encouragement one to the other - and it might operate equally effectively with respect to both of the persons involved by that process of joint participation and joint effort - all that would be quite sufficient to constitute the second individual; not found beyond a reasonable doubt by you to be a person who alone by his acts produced the result of death, to be nonetheless a person who aided in producing that result.

Now, you will see from that that when I speak about what is necessary to constitute an aiding in that sort of general way, one thing which is again clear is that it is not necessary that there had been any prior agreement between them. If one person started an affray, and the other seeing what happens leaps in and then participates, thereafter they are rendering mutual aid, although it is done by a process of osmosis, if you like; a joint

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perception of what is a good thing to do, rather than any prior discussion or agreement.

So it is at the relevant time when the act of aiding is being performed that one then has to come to consider it. You look to see what was done; look to see whether that would constitute an act of rendering aid, if you like, in that general way that I have been speaking of in those particular circumstances that the Code speaks of, and then it is at that time that it then becomes material to see what that person's criminal complicity is, because then the offence of which this second accused would be guilty depends upon a number of things; firstly it depends upon your decision as to the verdict to be returned for the first accused; whether it is to be wilful murder, murder or manslaughter, and then it depends upon the second accused's state of mind, and the first thing to note about it is that you are considering whether he is implicated in, whether he has criminal complicity in, the commission of a particular offence; either wilful murder, murder or manslaughter as it has been committed, and of course if you do not find the commission of any such offence then it all drops away entirely, but having got to that first step you are looking at the second accused and considering what is his implication in an offence in fact committed by another, and so it follows from that that he can commit no greater offence than the first accused has committed; that is the first point that arises out of that, but he may, of course, be found to have committed and to have aided in the commission of a lesser offence than the first accused has committed.

40 The trial judge went on to give still more detailed explanations concerning the operation of s 7(b) and s 7(c), in the general context of an attack on a third person. In the course of doing so he explained that, even if the first accused had an intention sufficient to give rise to a finding of wilful murder, the jury might find that the second did not. He said, in that respect (ts 305):

Of course you would find the second accused guilty of manslaughter if you were not satisfied beyond a reasonable doubt that he knew that the first accused was doing or might do acts with respect to either of those - accompanied by either of those relevant intents as he caused the death, but simply that he understood that what was happening or might happen at the time that he was rendering aid was acts of assault of a particular type - in this case I would have thought necessarily assaults perhaps with a weapon or of some violence from which death in fact resulted. So if those acts - if he anticipated acts of that character and as he rendered his aid to the proposal then he would be guilty of manslaughter whatever you found to have been the ultimate state of mind of the first accused when he did the acts which produced death.

41 He then turned to s 8 of the Code, which he read to the jury. He went on to say (ts 307 - 308):
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Arising out of that you would ask yourself, and you would need to answer - and again upon the basis of proof beyond reasonable doubt - these questions. Firstly, did the two accused people form a common intention to prosecute an unlawful purpose in conjunction with one another.

You can form such an intention, as I say, just the same way as we have been already speaking of, without prior discussion. It does not need to be a formal agreement. They do not need to have sat down in the pub and talked about, 'What unlawful purpose will we perform upon Locke?' You need only to find that there was an identicality of their minds in relation to a particular unlawful purpose.

Let us describe it. It is a matter entirely for your judgment. Let us describe it for the purposes of discussion as a question: did they form a common intention to bash, to beat up, to assault, to assault perhaps in a particular type of way - but to assault and perhaps to assault with a particular type of severity. But was that their common intention formed at some stage, perhaps if not initially then ultimately, but necessarily before the death occurred?

If you answer that question affirmatively, you then go to the nature of the killing and you say, 'What was the nature of the killing which resulted from the pursuit of that common purpose?' You see, it is in the prosecution of that purpose that an offence is committed. You looked at a killing and you say, 'Was that a killing which was committed in the prosecution of that purpose? What was its nature? Was it a wilful murder; was it a murder; was it a manslaughter?' having regard to all the discussion that we have had about that.

Then you go on to ask yourself the question, 'Well, was that killing a probable consequence - ' that is a killing, for example, done with an intent to cause grievous bodily harm or a killing done with an intent to kill or a killing done, as I say, without you being satisfied that it was accompanied by either of those intents, but was that killing, whatever you find it to be, one which was of such a nature that its commission was a probable consequence of the prosecution of such purpose?

42 Then, having expanded upon this explanation, he proceeded (ts 308, 309) to provide the jury with a number of examples for their assistance. These related to possible findings in the present case. He explained how the jury could arrive at verdicts of each of wilful murder, murder, manslaughter and an acquittal in the case against the 'second' accused.

43 After a brief summary of what he had said concerning s 8, and after telling the jury that it was quite clear that they needed to consider the case in relation to each accused separately, the trial judge said (ts 311):

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I have mentioned to you very briefly in some aspects what has been said by the various counsel in the way in which the cases have been formulated. I think perhaps it is fair to say that the Crown puts this before you in a very direct and black and white way. It says that the circumstances as it outlines them and as it says it has proved them, and that is a matter for you, of course, established that each of these accused persons must be found to have independently formed an intent to kill having regard to what each of them was doing in the context of what the other was doing at different times, and so it matters not who killed and who did not. Each of them, the Crown says, upon that basis and by the application of any of the rules on which we have had discussion, you and I, as I have charged you in relation to the law, the proper result would be wilful murder in relation to each.

You should understand the Crown's case, though, does not conclude itself upon the acceptance or non-acceptance of that approach; that these other results are possible and open and that the indictment throws them up and that you made [sic may] need to wrestle with them as your deliberations go on.

44 The trial judge then dealt separately with the position as it related to each of the accused men. He said, in relation to the appellant (ts 312 - 314):

So far as [the appellant] is concerned, the address of [the then counsel for the appellant] I am sure will be familiar to your minds, but the approach that here is taken very properly in the state of the evidence is to put before you for your consideration the issue of whether this accused has in fact participated in anything which did in fact cause death. Counsel encourages you to the view that the cause of death here was simply and directly the cutting of the throat and the proper view of the medical evidence is that that is where it starts and ends, and at a very direct and threshold point counsel puts to you the proposition that you ought to find upon all of the evidence and particularly the evidence of [the appellant], that he was not a person who provided the weapon or insisted or was conscious or was aware or had participated in any way in that activity. So it is said of him, at that point, if that was the relevant point, then he was simply a bystander who rendered no aid and was not in fact conscious at all that it had happened.

So it is put to you and again I encourage you to the evaluation of all the evidence and we have discussed that sufficiently. Beyond that counsel, of course, draws to your attention and [the appellant] has put before you that so far as he was concerned whatever he was implicated in was not an incident or an attack which you ought to find, so far as he was concerned, was one which was either accompanied on his part by an intent to kill or do grievous bodily harm or by any appreciation or by any situation in which he ought to have had an appreciation, because it was a probable

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consequence, that any other person would form any such intent or in fact produce a death as a result.

It is tackled so far as that accused is concerned on the basis of pinning back to you the facts for your evaluation and judgment in relation to all of the rules that I have spoken of which have an effect upon an accused person's criminal complicity in facts or circumstances such as this. Always bear in mind in relation to your consideration of the case separately of each accused person, the burden of proof; the onus of proof where it lies upon the Crown and that it remains there; and the burden of proof as, I have mentioned to you, is a standard beyond reasonable doubt to sustain a verdict of guilty in any form upon the indictment against either of the accused persons.

The appellant's contentions

45 Counsel for the appellant does not challenge the adequacy of the trial judge's directions to the jury in respect of the elements necessary to constitute the charge laid against the appellant. Nor does he challenge the adequacy of the directions given by the trial judge concerning the operation of s 7 and s 8 of the Code, so far as these related to the law. Nor does he challenge the adequacy of the trial judge's account of the evidence called by the prosecution and by the defence respectively. His sole complaint is that the trial judge did not specifically relate his directions on the law to the facts. He submits, in particular, that, although the trial judge told the jury about the possible permutations of verdicts they might reach, he did not tell them how they could reason their way to a lesser verdict of murder or manslaughter in respect of the appellant if Monaghan was found to be guilty of wilful murder.

Were the directions adequate?

46 The fundamental task of a trial judge is to ensure a fair trial of the accused: RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41] (Gaudron A-CJ, Gummow, Kirby & Hayne JJ). It has often been said, in this respect, that the law should be given to the jury with an explanation of how it applies to the facts of the particular case: Alford v Magee (1952) 85 CLR 437, 466; R v Zilm [2006] VSCA 72; (2006) 14 VR 11 [54] (Eames JA, Ashley JA concurring); and see also R v Andrakakos [2003] VSCA 170 [11] (Ormiston JA, Winneke ACJ & Buchanan JA concurring) and Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, 560 - 561. In R v AJS [2005] VSCA 288; (2005) 12 VR 563 [55] the Victorian Court of Appeal has said (Maxwell P, Nettle JA & Redlich AJA) that the common law obligations of a judge in every jury trial are as follows:

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(a) to decide what are the real issues in the case;

(b) to direct the jury on only so much of the law as is necessary to enable the jury to resolve those issues;

(c) to tell the jury, in the light of the law, what those issues are;

(d) to explain to the jury how the law applies to the facts of the case; and

(e) to summarise only so much of the evidence as is relevant to the facts in issue, and to do so by reference to the issues in the case.

Just how this is done will, of course, depend upon the particular circumstances of the case.

47 In my respectful opinion, the trial judge's very detailed summing up concerning s 7 and s 8 was sufficient to enable the jury to know what issues arose for their decision, to understand the law so far as was necessary to resolve those issues, to know what facts were material to their decision on each issue and to understand how the law applied to those facts.

48 So far as s 7(a) is concerned, the trial judge explained to the jury that the case against each accused had to be considered separately and that the task of the jury, in each case, was to ascertain whether the accused in question had done the act or acts which constituted the offence. It was obvious, in this case, what acts were said to have been done by each. The trial judge explained to the jury that, if satisfied that a particular accused had committed some, or all, of the acts alleged, they had to consider whether those acts had, alone or together with other acts, caused Locke's death and, if so, with what intention they were done. He explained that the two accused might have had different intentions and how, depending upon their findings concerning the doing of the acts, their causative effect and the intentions with which the acts were done, they might arrive at one of the different verdicts open to them. Nothing more was required.

49 So far as s 7(b) and s 7(c) are concerned, having explained the operation of these sections, and given examples of their operation, the trial judge turned to the facts of the present case. He said that it was open to the jury to find that a person who lured another to a place where he was bashed, knowing that that was to happen, had done an act enabling that to happen. He said that a person who provided weapons, or who participated in a joint assault, or who lent aid or encouragement to the other person was an aider within s 7(b) or s 7(c). He explained, once again, how the jury was able to arrive at each of the verdicts available to them against

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either of the accused and how the verdicts in respect of each might differ. It was consequently made plain to the jury what the issues were, what evidence was relevant to those issues and how the law applied to the facts that might be found by them.

50 So far as s 8 is concerned, the trial judge told the jury that it was necessary for them to decide whether the two men, while in the Gosnells Hotel or afterwards, formed a common intention to prosecute the unlawful purpose of assaulting Locke, or assaulting him in a particular way or with a particular degree of severity. He also told them that, if they found that there had been such a common intention, then they had to decide upon the 'nature of the killing which resulted from the pursuit of that common purpose', that is to say, whether it was wilful murder, murder or manslaughter, having regard for the explanations concerning those options that he had earlier given them. He then told them that, having decided that question, they were required to decide whether a killing of that kind had been a probable consequence of the prosecution of the common purpose. I have said that he adequately explained the facts (which were not complex) and the contentions of counsel for the appellant. Consequently, the jury must, once again, have understood the issues, what evidence was relevant to the issues and how the law applied to the facts that might be found by them.

51 The sole ground of appeal consequently seems to me to have no reasonable prospect of succeeding: s 27(2) of the Criminal Appeals Act and Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473. Consequently, and given the inordinate and insufficiently explained delay, if the application for an extension of time was competent I would have refused it.

Conclusion

52 I would dismiss the application.

53 McLURE JA: I agree with Steytler P.

54 BUSS JA: I agree with the President.