O'Leary v The State of Western Australia
[2022] WASCA 4
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: O'LEARY -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 4
CORAM: BUSS P
BEECH JA
HALL J
HEARD: 17 NOVEMBER 2021
DELIVERED : 14 JANUARY 2022
FILE NO/S: CACR 112 of 2021
BETWEEN: JACOB REX O'LEARY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S: CACR 113 of 2021
BETWEEN: JUSTIN SAM O'LEARY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
For File No: CACR 112 of 2021
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BARONE DCJ
File Number : IND KAR 20 of 2019
For File No: CACR 113 of 2021
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BARONE DCJ
File Number : IND KAR 20 of 2019
Catchwords:
Criminal law - Offences - Where charge under s 304(2) of the Criminal Code (WA) of, with intent to harm, doing an act as a result of which the life, health or safety of the complainant was or was likely to be endangered - Where prosecution case was that three accused engaged in a prolonged attack on the complainant and that attack was the 'act' for the purposes of s 304(2) - Where prosecution case that those three accused were all criminally liable by operation of s 7(a) of the Criminal Code - Where prosecution case was that each accused had done one or more acts in a series of acts that together constitute the offence - Whether prosecution required to prove that an accused had the necessary intent to harm at the time of each of the acts which together constitute the offence, regardless of who did those acts
Criminal law - Parties to offences - Where charge under s 304(2) of the Criminal Code (WA) - Where prosecution case was that three accused engaged in a prolonged attack on the complainant and that attack was the 'act' for the purposes of s 304(2) - Where prosecution case that those three accused were all criminally liable by operation of s 7(a) of the Criminal Code - Where prosecution case was that each accused had done one or more acts in a series of acts that together constitute the offence - Whether there were errors in judge's direction as to elements of the offence - The significance for the purposes of s 7(a) of the Criminal Code of a finding that persons 'acted in concert' - What it means to 'act in concert' for the purposes of s 7(a) of the Criminal Code
Evidence - Hearsay rule - Where prosecution case included allegation of an agreement between four men - Whether statement made by one of those men to another of them was admissible in the trial of an accused in whose presence the statement was not made - Whether such evidence was led or proposed to be used for an impermissible hearsay purpose - Whether such evidence was otherwise relevant
Legislation:
Criminal Code (WA), s 7(a), s 304(2)
Interpretation Act 1984 (WA), s 10(c)
Result:
CACR 112 of 2021
Appeal upheld
Judgment of acquittal entered
CACR 113 of 2021
Appeal upheld
Retrial ordered
Category: A
Representation:
CACR 112 of 2021
Counsel:
| Appellant | : | S Vandongen SC |
| Respondent | : | B M Murray |
Solicitors:
| Appellant | : | Timpano Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
CACR 113 of 2021
Counsel:
| Appellant | : | S Vandongen SC |
| Respondent | : | B M Murray |
Solicitors:
| Appellant | : | Hammond Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Arulthilakan v The Queen [2003] HCA 74; (2003) 78 ALJR 257
Birdsall v The State of Western Australia [2019] WASCA 79; (2019) 54 WAR 418
Campbell v The State of Western Australia [2016] WASCA 156; (2016) 50 WAR 331
Clarke v The State of Western Australia [2018] WASCA 14
East Metropolitan Health Service v Popovic [2019] WASCA 18; (2019) 54 WAR 40
Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024
Heydon's Case (1612) 11 Co Rep 5a; 77 ER 1150
HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
IL v The Queen [2017] HCA 27; (2017) 262 CLR 268
Koani v The Queen [2017] HCA 42; (2017) 263 CLR 427
L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545
Lacco v The State of Western Australia [2006] WASCA 152
Lane v R [2017] NSWCCA 46
Le‑Ta v The State of Western Australia [2020] WASCA 14
Likiardopoulos v The Queen [2012] HCA 37; (2012) 247 CLR 265
McAuliffe v The Queen (1995) 183 CLR 108
Meyers v The Queen (1997) 71 ALJR 1488
O'Dea v The State of Western Australia [2021] WASCA 61; (2021) 288 A Crim R 451
OKS v The State of Western Australia [2018] WASCA 48; (2018) 52 WAR 482
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
Pickett v The State of Western Australia [2020] HCA 20; (2020) 94 ALJR 629
R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
R v Handlen and Paddison [2010] QCA 371; (2010) 247 FLR 261
R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199
R v Sherrington [2001] QCA 105
R v Wyles; Ex parte Attorney‑General [1977] Qd R 169
Roberts v The State of Western Australia [2019] WASCA 83
Royall v The Queen (1990) 172 CLR 378
Ryan v The Queen (1967) 121 CLR 205
Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574
Wark v The State of Western Australia [2020] WASCA 19; (2020) 284 A Crim R 449
Warren & Ireland v The Queen [1987] WAR 314
Whitby v The State of Western Australia [2019] WASCA 11
White v Ridley (1978) 140 CLR 342
Yarran v The State of Western Australia [2019] WASCA 159
JUDGMENT OF THE COURT:
Introduction
Two brothers, Jacob O'Leary and Justin O'Leary, appeal against their convictions of one count of an offence under s 304(2) of the Criminal Code (WA), of, with intent to harm Nathan Hyland, doing an act as a result of which the life, health or safety of Mr Hyland was, or was likely to be, endangered. The appellants were charged jointly with their brother, Logan O'Leary, and their mother, Judith Grose. Logan O'Leary and Ms Grose were acquitted. (For ease of reference, and without disrespect, we will refer to the male members of the O'Leary family by their first name.)
On the State case, all three brothers engaged in a prolonged physical attack on the complainant. The attack was initiated by Justin, who was joined by Logan and then by Jacob. The State case identified the 'act', for the purposes of s 304(2), as the entirety of the prolonged physical attack upon the complainant engaged in by the three brothers.
The State case was that the three brothers were all criminally liable by operation of s 7(a) of the Criminal Code, on the basis that each had done one or more acts in a series of acts that together constituted the offence.
Three of the grounds of appeal in each appeal raise, in substance, the same issues. The first two of each appellant's grounds of appeal assert errors in the judge's directions concerning the elements of the offence. Ground 1 of each appeal asserts error as to what findings were necessary before each appellant could be found guilty on the basis of liability under s 7(a). Ground 2 in each appeal asserts error in failing to direct the jury that before convicting the appellant, the jury needed to be satisfied that the relevant accused had the requisite intent under s 304(2)(b) throughout the 'act' that was relied on by the prosecution.
Ground 3 in each appeal contends that the judge erred in directing the jury that evidence of a witness as to what she heard Rex O'Leary, who is the father of the three brothers, tell Logan was not admissible in the case for each appellant, unless they were satisfied it had been said within that appellant's hearing.
Jacob advances an additional ground, ground 4, which asserts that the verdict of guilty was unreasonable or cannot be supported having regard to the evidence. Specifically, the ground asserts that the jury must have had a reasonable doubt about whether Jacob was criminally liable for the 'act' relied on by the prosecution for the purpose of s 304(2)(b), pursuant to s 7(a) of the Criminal Code.
On 7 December 2021, the court ordered that the appellants be granted bail pending the determination of their appeals. The applications for bail were made following an invitation from the court.
For the reasons that follow, in our opinion, all the grounds have been made out in Jacob's appeal, and grounds 2 and 3 have been established in Justin's appeal. The appeals should be upheld. In Jacob's appeal, a judgment of acquittal should be entered. In Justin's appeal, there should be an order for a retrial.
The State case
The State case may be summarised as follows.
The State case concerned a physical altercation that occurred on 13 December 2018 between the three brothers and the complainant. Much of that physical altercation was recorded by CCTV, although some was not visible because at times the protagonists were outside the view of the camera.
The appellants' family owned a business in Karratha. For a period, the complainant worked at that business, but left in 2015 to start his own business. Thereafter, there was tension and animosity between the complainant and the appellants' family.
On 13 December 2018, the appellants, some members of their family and their friend, Mr Reece O'Dwyer, were at The Pearlers Restaurant in Karratha. They were sitting inside, where a number of other patrons were also sitting.
The complainant and his partner came into the restaurant to have dinner. They were seated in an outside patio area of the restaurant, where no other patrons were sitting.
Shortly after their arrival, Rex came out to the patio area where the complainant and his partner were seated. Rex approached the complainant and spoke to him in an aggressive fashion. He then went back inside the restaurant. About eight minutes later (the times being recorded on the CCTV), Justin came out to the patio area, walking towards the complainant and pushing past a chair that his partner had put in Justin's path. As Justin reached the complainant, the complainant threw a punch and the two men became involved in a fight. The State case was that the complainant's punch was done in self‑defence, which, given the judge's directions, the jury must have found beyond reasonable doubt.
Justin and the complainant were no longer visible on the camera. Very shortly thereafter, Logan ran to the patio area and, some seconds later, was followed by Jacob.
The prosecution case was that Logan joined the fight between Justin and the complainant, and then Jacob joined with his two brothers, while they punched, kicked and assaulted the complainant.
A short time thereafter, when the protagonists become visible again on the CCTV, each of Justin and Jacob may be seen punching the complainant to the face.
In opening, the State identified the 'act' referred to in the indictment as the prolonged physical attack on the complainant.[1] The prosecutor explained the State case, as follows:[2]
[T]he State case against each of the three male-accused, to be plain, is that each punched and kicked [the complainant]; they were each involved in a joint attack on [the complainant]. The punches and kicks delivered by each of the accused in the attack were both vicious and prolonged, and the clear intention of each was to harm [the complainant]. In addition to that, they clearly acted with a common purpose. Now, whether there was a discussion between them at some prior that, if the opportunity arose, they would get [the complainant], or whether it was simply an unspoken spontaneous agreement that night, it's clear from the evidence, that you will both hear and see, that there was a common purpose behind their actions; they each assisted each other in the attack of [the complainant] and, again, their clear intention was to harm him.
[1] ts 179 - 180.
[2] ts 184 - 185.
The State case was that the three brothers were criminally liable on the basis of s 7(a) of the Criminal Code. No reliance was placed on other paragraphs of s 7, nor on s 8.
As will be seen, these features of the State case were reflected in the manner in which the judge directed the jury.[3]
[3] ts 1302 - 1303, 1311 - 1312.
Why the State chose to frame and confine its case in the manner outlined in [18] ‑ [19] is by no means clear. As will be seen, it gave rise to various complexities and hurdles for the State case. Other, simpler options would seem to be readily apparent, given what is observable on the CCTV footage. In any event, what matters for present purposes, and is not in doubt, is that the State was, and is, bound by the manner in which it framed its case.
We will say more as to the evidence led by the State in the course of considering ground 4 of Jacob's appeal.
Counsel's closing addresses
Given the issues on appeal, only limited aspects of counsel's closing addresses to the jury need be mentioned.
The prosecutor's closing address did not clearly identify the factual conclusion invited by the prosecution as the basis for the State case that the male accused were acting together. The prosecutor did not assert that discussions between those at the table led to a plan or shared intention that the three men would attack the complainant. Rather, he submitted only that there must have been 'intense discussions' about the complainant:[4]
But it remains the case that he [the complainant] is seen by the O'Leary table, or people at the O'Leary table, entering that restaurant. He must've been the subject of some fairly intensive discussion at that table, because that's the only reasonable inference you can draw as to what then happens.
Defence witnesses played down any extensive discussion on that point, didn't they? Mr O'Dwyer in particular gave some fairly odd answers in my cross‑examination of him on that point. Wasn't his business. Things were being said, but he just switched off, so he doesn't know what was being said. Doesn't fit in with human nature and common sense, does it? He's sitting in a table of six people, who are all your friends.
The State says that [the complainant] must have been the subject of intense discussion, because despite him being completely out of sight and hearing of where the O'Learys are sitting, Rex O'Leary then feels the overwhelming need to go out and harass the two of them.
.…
And again, according to the defence witnesses we've heard from who were sitting at that table, not much more is said about that [after Rex returns from the patio]. They simply decide, 'Well, we'll just eat our food and get out of here as soon as we can.' Again, that doesn't make sense.
It doesn't fit in with what we all know as a matter of human experience and a matter of our own experience what occurs in situations such as this. And it doesn't fit in with what subsequently occurred, that they were all just going to ignore it. There must have been continuing and intense discussion happening at that table from that point. It's the only reasonable inference that can be made.
[4] ts 1132 - 1133.
The prosecutor also submitted to the jury, in the context addressing self‑defence, that the O'Leary family knew what Justin was going to do (namely, attack the complainant) at the time Justin left the table:[5]
And it's absolutely clear from the CCTV footage that Justin O'Leary intended on things being physical right from the outset. From the point that we can see him coming out that door, that is obvious. The State would say it was obvious from the point that he got up from the table inside, where his family were sitting, and that the O'Learys knew what he was going to do.
[5] ts 1135.
Further, as the appellants point out in their submissions, the prosecutor invited the jury to infer that 'others from [Justin's] party' thought Justin would be able to deal with (fight) the complainant on his own:[6]
[The complainant] gave evidence of his weight and height, and it can be seen on the footage that Justin O'Leary is clearly bigger. The fact that others from his party don't immediately follow him is explicable on that basis. The State would say that they likely thought that he would be able to have no difficulty in dealing with [the complainant] by himself. Why else, if their continued claims to [the complainant] being such a dangerous and unpredictable and skilful boxer are true, would they simply let him walk out there uninvited when they saw him walk out?
[6] ts 1134.
The lack of clarity as to the essential element of 'acting together' was unfortunate, and as will be seen, played a part in the trial ultimately miscarrying.
Jacob's trial counsel framed the prosecution case as asserting a plan between the three brothers to attack the complainant. He made extensive submissions to the jury as to why they should not be satisfied beyond reasonable doubt of the existence of any such plan.[7] In the course of those submissions, at one point he referred to the identification of the entire attack as the 'act', submitting that in order for Jacob to be guilty he would need to have known and understood what Justin was doing when Justin went outside.[8]
[7] See for example ts 1210 - 1212, 1215 -1216,1224, 1229 -1231.
[8] ts 1212.
As we will detail in the course of determining ground 3, Jacob's trial counsel referred to an aspect of the evidence of another diner at the restaurant ‑ Ms Chervon Honicke ‑ as demonstrating or suggesting that there was no plan or understanding.[9] When counsel's closing address was finished, the judge suggested, in substance, that this submission involved an impermissible hearsay use of what Rex said to Logan, unless it was said in Jacob's presence and so directed the jury.
[9] ts 1214.
The trial judge's direction
The trial judge directed the jury that the State case was that the 'act' is the prolonged physical attack on the complainant, which includes all the punches, kicks, physical restraints, holds and headbutts to the complainant from the commencement of the physical attack on him until its end.[10]
[10] ts 1302 - 1303, 1311 - 1312.
The judge further directed the jury that, on the State case, the prolonged physical attack was constituted by a series of things done by the three accused brothers. Consequently, against each brother, the State was required to prove beyond reasonable doubt that he did an act that was part of the 'act'.[11] The judge told the jury that to be guilty of the offence '[as] a person who actually does the act which constitutes the offence, you must actually do the act or if you are acting together with others, you must do one or more acts in a series of acts that constitutes the offence'.[12]
[11] ts 1303, 1311 - 1312, 1394.
[12] ts 1311 - 1312, 1394.
The judge further directed that the State must also prove beyond reasonable doubt a connection between the acts that form the series of acts. Her Honour said that it was not enough that the various acts of a number of people constitute an offence when combined. In order for an accused to be liable as a joint principal, the accused must do an act that forms part of the series of acts committed with others while 'acting together'. Thus, the State was required to prove beyond reasonable doubt that each of Justin, Jacob and Logan were 'acting together during the act, that is, during the prolonged physical attack'.[13]
[13] ts 1312.
The judge then explained how that requirement applied to the State case against Logan.[14]
[14] ts 1312 - 1313.
The judge then turned to the State case against Jacob, saying the following:[15]
So now in respect of Jacob. So again bearing in mind that Justin is the only person who's physically present during all of the series of acts that the State says combined makes up the series of acts and that Jacob is not present when Justin and Logan are doing, on the State's case, acts which the State says makes up part of the act, ie, the series of acts.
So because of that, in respect of Jacob, the State must prove beyond reasonable doubt both that at the time Justin commenced his physical attack on [the complainant], Jacob had a positive belief that Justin would commence the series of acts that endangered or was likely to endanger the life, health and safety of [the complainant] and that Jacob had a positive belief at the time Logan commenced his physical attack on [the complainant] that Jacob had a positive belief that Logan would act with Justin and would also do acts in the series of acts that endangered or was likely to endanger the life, health or safety of [the complainant].
This is again - this is because Jacob could not be said to be acting together with his brothers in committing the series of acts that constitutes the offence if he did not know, that is, positively believe, that the series of acts had commenced and involved acts committed by both Justin and Logan. (emphasis added)
[15] ts 1313 - 1314.
The judge then said that she would repeat what she had said because it was very important for the jury to understand it.[16] The judge then repeated the passage we have set out at [34] above.
[16] ts 1314.
Shortly after this, the judge gave the jury a break. During the break, Justin's counsel raised a question as to what was required, on Justin's part, in order for all three brothers to be acting in concert.[17] In the course of exchanges between counsel and the court, which occurred mid‑afternoon on a Friday before a long weekend, it was agreed that the judge's direction should be concluded on the Tuesday morning. The jury then requested a transcript of the judge's direction as to the elements of the charges.[18] The judge proposed that it would be appropriate to provide a jury handout, to be prepared over the weekend.
[17] ts 1318.
[18] ts 1322.
Before the court adjourned for the weekend, a juror asked a question, requesting the judge to clarify whether she had said that unless the jury were satisfied that all the accused knew what each other was planning to do then they must be not guilty.[19] The judge foreshadowed that she would deal with that question on Tuesday.[20]
[19] ts 1329.
[20] ts 1329.
Over the course of the long weekend, draft question trails were evidently exchanged. There was discussion between counsel and the court in the absence of the jury when the case resumed on Tuesday, 2 March 2021. In the course of those discussions, the judge stated that her understanding was that the State could prove its case as to joint liability in either of two ways. The first was that there was a joint plan, made in advance. The second was that there was 'an evolving acting together', with Justin commencing and then continuing when he knew the other two were joining in, in circumstances where Logan and Jacob positively knew that when Justin went outside, he had commenced the act and they then became involved.[21] All counsel expressed agreement with this understanding.[22]
[21] ts 1375.
[22] ts 1375 - 1376.
In the afternoon of 2 March 2021, the judge resumed her summing up to the jury. The jury were provided with question trails relating to each accused. The question trail for Justin included, relevantly, the following:
QUESTION TRAIL - JUSTIN SAM O'LEARY
NOTE:
•This question trail ONLY applies to Justin Sam O'Leary.
•This question trail must be read and understood in conjunction with all of the directions that you have been given.
1.Has the State proven beyond reasonable doubt that it was Justin Sam O'Leary, and not some other person, who did an act in the series of acts that constitutes the offence (the prolonged physical attack on [the complainant])? That is, has the State proven beyond reasonable doubt the element of identity?
If 'no', the verdict is not guilty.
If 'yes', proceed to question 2.
2.Has the State proven beyond reasonable doubt that Justin Sam O'Leary did an act in the series of acts that constituted the prolonged physical attack on [the complainant]?
If 'no', the verdict is not guilty.
If 'yes'[,] proceed to question 3.
3.Has the State proven beyond reasonable doubt BOTH:
a.That the life, health or safety of [the complainant] was OR was likely to be endangered;
AND
b.That the endangerment of [the complainant's] life, health or safety resulted from (was caused by) the prolonged physical attack upon him?
If 'no', the verdict is not guilty.
If 'yes'[,] proceed to question 4.
4.Has the State proven beyond reasonable doubt that any act or acts done by Justin Sam O'Leary were done with an intention to cause harm to [the complainant]? That is, done with either an intent to unlawfully do [the complainant] bodily harm OR with an intent to unlawfully endanger the life, health, or safety of [the complainant]?
If 'no', the verdict is not guilty.
If 'yes'[,] proceed to question 5.
5.Has the State proven beyond reasonable doubt that Justin Sam O'Leary was acting together with Logan Francis O'Leary and Jacob Rex O'Leary? That is has the State proven beyond reasonable doubt that Justin Sam O'Leary commenced the physical attack on [the complainant], and knew that Logan Francis O'Leary and Jacob Rex O'Leary did join in that attack?
If 'no', the verdict is not guilty.
If 'yes'[,] proceed to question 6. (italicised emphasis added)
Jacob's question trail included, relevantly, as follows:
QUESTION TRAIL - JACOB REX O'LEARY
NOTE:
•This question trail ONLY applies to Jacob Rex O'Leary.
•This question trail must be read and understood in conjunction with all of the directions that you have been given.
1.Has the State proven beyond reasonable doubt that it was Jacob Rex O'Leary, and not some other person, who did an act in the series of acts that constitutes the offence (the prolonged physical attack on [the complainant])? That is, has the State proven beyond reasonable doubt the element of identity?
If 'no', the verdict is not guilty.
If 'yes', proceed to question 2.
2.Has the State proven beyond reasonable doubt that Jacob Rex O'Leary did an act in the series of acts that constituted the prolonged physical attack on [the complainant]?
If 'no', the verdict is not guilty.
If 'yes'[,] proceed to question 3.
3.Has the State proven beyond reasonable doubt BOTH:
a.That the life, health or safety of [the complainant] was OR was likely to be endangered;
AND
b.That the endangerment of [the complainant's] life, health or safety resulted from (was caused by) the prolonged physical attack upon him?
If 'no', the verdict is not guilty.
If 'yes'[,] proceed to question 4.
4.Has the State proven beyond reasonable doubt that any act or acts done by Jacob Rex O'Leary were done with an intention to cause harm to [the complainant]? That is, done with either an intent to unlawfully do [the complainant] bodily harm OR with an intent to unlawfully endanger the life, health, or safety of [the complainant]?
If 'no', the verdict is not guilty.
If 'yes'[,] proceed to question 5.
5.Has the State proven beyond reasonable doubt that Jacob Rex O'Leary was acting together with Justin Sam O'Leary and Logan Francis O'Leary? That is, has the State proven beyond reasonable doubt that Jacob Rex O'Leary had a positive belief that Justin Sam O'Leary would commence a physical attack on [the complainant] and that Logan Francis O'Leary would act with Justin Sam O'Leary and also physically attack [the complainant]?
If 'no', the verdict is not guilty.
If 'yes'[,] proceed to question 6. (italicised emphasis added)
The remaining questions related to whether the complainant was acting lawfully, namely in self‑defence, and questions concerning whether Jacob's acts were unlawful in not being justified by self‑defence or the defence of another.
The judge summarised much of what she had said on the preceding Friday, including her Honour's directions as to what constitutes the 'act', namely the entirety of the prolonged physical attack. Her Honour also reiterated that the State needed to prove that each of the accused brothers did an act that is part of the 'act'.[23]
[23] ts 1394.
The judge identified, as an element of the offence, the need for the State to prove beyond reasonable doubt that when the accused that the jury were considering did the act, he did so with an intent to harm the complainant. The judge told the jury that to prove this element, the State must prove beyond reasonable doubt that the accused, when doing the act or 'their part of the act that makes up "the act" relied on by the State', intended to either unlawfully cause bodily harm to the complainant or intended to unlawfully endanger his life, health or safety.[24] That direction reiterated a direction given by the judge on the Friday.[25]
[24] ts 1396.
[25] ts 1309.
Ground 2 of each appeal contends that this direction was erroneous.
The judge proceeded to explain the question trails to the jury. Her Honour said, consistently with what was written on each question trail, that the question trail did not replace the judge's oral directions, but was to be understood together with it.[26]
[26] ts 1397.
Question 4 in each of Justin's and Jacob's question trail directed attention to whether the State had proved beyond reasonable doubt that any act or acts done by the particular accused were done with the requisite intention. That direction is also challenged by ground 2.
The judge returned to her earlier directions as to criminal responsibility and to the basis upon which the State said that the three brothers were jointly liable for the offence.[27] The judge reiterated that it was not enough that the various acts of a number of people constitute an offence when those acts are added together. In order for an accused to be liable as a joint principal, he must do an act that forms part of acts committed with others whilst 'acting together'.[28] The judge then identified the question of what that meant in the context of the present case, where 'it was an evolving event where one person - Justin - commenced [the attack], and then Logan, and then Jacob, on the State's case, [joined in]'.[29]
[27] ts 1399.
[28] ts 1400.
[29] ts 1400.
The judge then said as follows in relation to Jacob:[30]
Now, in relation to Jacob, the State must prove both that at the time Justin commenced his physical attack on [the complainant], Jacob had a positive belief that Justin would commence the series of acts that endangered or was likely to endanger the life, health or safety of [the complainant], and Jacob had a positive belief that at the time Logan commenced his physical attack on [the complainant], that Jacob had a positive belief that Logan would do an act - would act with Justin, sorry - and would also do acts in the series of acts that endangered or was likely to endanger the life, health or safety of [the complainant].
That is because he could not to [sic] be said to be acting together with others in committing the series of acts that constitutes the offence if he did not know - that is, positively believe - that the series of acts had commenced and involved acts committed by both Justin and Logan. So again, for Jacob - for the State to prove the case beyond reasonable doubt, the acts in the series of acts can't have happened without his knowledge. Part of it can't have happened without his knowledge.
So the State must prove beyond reasonable doubt that he had a positive belief - so, knew - that Justin would commence the series of acts, or the act, and that Logan would act with Justin and would do acts in the series of acts that endangered the life, health and safety of [the complainant] - so, the act. (emphasis added)
[30] ts 1401 - 1402.
The judge said in respect of Justin, the State must prove beyond reasonable doubt that Justin commenced the physical attack on the complainant and knew that Logan and Jacob had joined in that attack.[31] The judge repeated that statement.[32] The judge then reiterated the terms of question 5 on Justin's question trail.[33]
[31] ts 1402.
[32] ts 1402.
[33] ts 1402.
As to Jacob's question trail, the judge pointed out that questions 1 ‑ 4 were the same as for the other male accused, but that question 5 was different. The judge then read out the terms of question 5.[34] The judge reiterated that the State must prove that at the time Justin commenced the physical attack, Jacob had a positive belief that he was doing so, and that at the time Logan joined in, Jacob had a positive belief that Logan would join in the physical attack on the complainant.[35]
[34] ts 1403.
[35] ts 1403.
The judge then returned to the question that had been posed by the juror on Friday. That question was whether the judge had said that unless the State could prove that all of the accused knew what each other was planning to do, they must be not guilty. The judge said that the simple answer to that question was 'no', and then explained the answer in more detail. The State was required to prove that when each accused did the acts in a series of acts which combined to constitute the offence, they were acting together. The judge said that the State could prove that in one of two ways. The first was to prove beyond reasonable doubt that there was a plan, or joint belief or understanding that they would together physically attack the complainant and that the plan or understanding was made before the attack commenced. Such a joint belief did not have to be long‑standing or expressed verbally. It could be a spontaneous joint belief that was unspoken.[36]
[36] ts 1403 ‑ 1404.
After explaining that the defence case was that there was no such plan, the judge then identified the second way the State could prove its case. That was to prove that the event was an evolving event into which each accused joined. In order to prove that, the judge told the jury that the State would need to prove the following things. First, as against Justin, that Justin commenced the physical attack and continued with that attack knowing, that is positively believing, that both Logan and Jacob had joined in that attack. Secondly, as against Logan, that Logan had a belief[37] that Justin would commence the physical attack and then Logan joined in that attack. And thirdly, as against Jacob, that Jacob had both a positive belief that Justin would commence a physical attack on the complainant and that Logan would act with Justin in attacking the complainant and that Jacob joined in that attack.[38]
[37] In the transcript, the word before the word 'belief' was indistinct.
[38] ts 1404 - 1405.
The judge reiterated that what the State had to prove in respect of each male accused was different, reflected in the different terms of question 5 for each man. The judge clarified that in saying that the State had to prove all of those things, her Honour meant that the State had to prove affirmative responses to each of questions 1 ‑ 5 on the question trail in order to make the case against any given accused. It was not necessary that affirmative answers be given to question 5 on all three question trails in order for there to be a verdict of guilty in respect of a given accused.[39]
[39] ts 1405.
The judge told the jury that the defence case was that the brothers were not acting jointly.[40]
[40] ts 1405.
It is convenient to begin with Jacob's appeal.
Jacob's grounds of appeal
Jacob advances the following four grounds of appeal:
1.The learned trial judge made a wrong decision on a question of law by failing to adequately direct the jury about the findings that needed to be made about whether the appellant had been acting in concert with the other male accused at all relevant times before the appellant could be found guilty of the offence charged on the basis that he was criminally liable for the offence by the operation of s 7(a) of the Criminal Code, or that the directions that were given occasioned a miscarriage of justice.
2.The learned trial judge made a wrong decision on a question of law by failing to direct the jury that before convicting the appellant they need to be satisfied that he had the requisite intent throughout 'the act' that was relied on by the prosecution for the purposes of s 304(2)(b) of the Criminal Code and, instead, by directing them that it was sufficient if the appellant had such an intent at the time he carried out his physical part(s) of 'the act', or that the directions that were given occasioned a miscarriage of justice.
3.The learned trial judge made a wrong decision on a question of law by directing the jury that Ms Honicke's evidence that she heard Rex O'Leary tell Logan O'Leary to 'go get your brother', was not admissible in the case for the appellant unless they were satisfied that it had been said within the hearing of the appellant, or that the directions that were given occasioned a miscarriage of justice.
4.The verdict of guilty was unreasonable or cannot be supported having regard to the evidence.
Particulars
The jury must have had a reasonable doubt about whether the appellant was criminally liable for 'the act' relied on by the prosecution for the purposes of s 304(2)(b) of the Criminal Code, pursuant to s 7(a) of the Criminal Code.
Jacob's application for leave to appeal on these grounds was referred to the hearing of the appeal.[41]
[41] Order of Buss P, 15 October 2021.
Ground 1 of Jacob's appeal: the direction as to 'acting together'
Submissions
Jacob submits that because the 'act' for the purpose of s 304(2)(b) of the Code was the entirety of the prolonged physical attack on the complainant, in order to find him guilty, the jury had to be satisfied that he was a joint principal offender in relation to the whole of the 'act'.[42]
[42] Jacob's submissions [17], referring to Pickett v The State of Western Australia [2020] HCA 20; (2020) 94 ALJR 629 [40].
Liability of this kind under s 7(a), Jacob submits, requires the relevant persons to be acting in concert, in other words, they are acting in combination or are collaborating with each other or have joined forces.[43] Thus, Jacob submits, the prosecution was required to prove that all of the male accused were 'acting in concert' throughout the entire duration of the 'act'.
[43] Jacob's submissions [18], referring to O'Dea v The State of Western Australia [2021] WASCA 61; (2021) 288 A Crim R 451 [112] ‑ [114].
Jacob points to the trial judge's direction, set out at [34] above, that the prosecution had to prove that at the time Justin commenced the physical attack on the complainant, Jacob had a positive belief that Justin would commence that attack and that Jacob also had a positive belief that Logan would act with Justin.[44] Jacob submits that the directions as a whole tended to suggest that all that was necessary in order for the jury to find that Jacob had acted together or in concert with the other male accused was a finding that he had the beliefs identified by the trial judge.
[44] Jacob's submissions [20].
Jacob submits that a similar problem arises in relation to the judge's direction that one pathway for satisfaction that the male accused were acting together was if the prosecution satisfied them beyond reasonable doubt that there was a plan or a joint belief or understanding that they would together physically attack the complainant before the attack commenced. Jacob submits that such proof was not sufficient and that the prosecution also needed to prove that the appellant did in fact act in concert with the other male offenders throughout the act.[45]
[45] Jacob's submissions [26] - [27], referring to L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545.
In oral submissions, Jacob advanced a further contention under the rubric of ground 1. He submits that of the two alternative pathways, identified by the judge, to a conclusion that the male accused were acting together, the second was, in the circumstances, an impermissible mode of reasoning to that conclusion.[46]
Application of s 7(a) to a series of acts constituting the offence; legal principles
[46] Appeal ts 15, 17 - 18.
Section 7 deems persons falling within any of pars (a) - (d) to have taken part in committing the offence and to be guilty of it. Section 7(a) refers to every person 'who actually does the act … which constitutes the offence'. Section 10(c) of the Interpretation Act 1984 (WA) provides, relevantly, that in any written law, 'words in the singular number include the plural'.
It is well established that s 7(a), read with s 10(c) of the Interpretation Act, can apply, in some circumstances, to cases involving multiple offenders, where each does one or more acts in a series of acts that together constitute the offence. The authorities were comprehensively outlined by this court in O'Dea v The State of Western Australia.[47]
[47] O'Dea v The State of Western Australia [2021] WASCA 61; (2021) 288 A Crim R 451 [85] ‑ [111]. See, for example, R v Wyles; Ex parte Attorney‑General [1977] Qd R 169, 177, 182; Warren & Ireland v The Queen [1987] WAR 314, 327 - 329; Lacco v The State of Western Australia [2006] WASCA 152 [8], [54]; L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545 [32]; Campbellv The State of Western Australia [2016] WASCA 156; (2016) 50 WAR 331 [110] - [111]; Yarran v The State of Western Australia [2019] WASCA 159 [323].
In O'Dea v The State of Western Australia, the court concluded that criminal responsibility under s 7(a) of the Code:[48]
extends to cases where there are several persons 'acting in concert', each doing an act or acts or making an omission or omissions which, in aggregate, would constitute all the elements of the charged offence if the offence were committed by one person.
[48] O'Dea v The State of Western Australia [112].
The court said the following as to the concept of several persons acting in concert:[49]
The concept of several persons 'acting in concert', for the purposes of joint criminal responsibility under s 7(a) of the Code, connotes that the persons are acting in combination or are collaborating with each other or have joined forces. The State's burden of proving that several persons were 'acting in concert', for the purposes of s 7(a), may be discharged by direct evidence or circumstantial evidence, including by inference from the facts and circumstances in which the acts were done or the omissions were made. However, several persons will not be 'acting in concert' if each person is acting independently of the other or others and the act or acts done or the omission or omissions made by each person are merely coincident.
[49] O'Dea v The State of Western Australia [114].
The issues raised by ground 1 concern the adequacy of the judge's direction as to the requirement for the prosecution to prove that the male accused were acting together, or in other words, acting in concert. Those issues invite further attention to the significance of a finding that the actors are acting together or in concert and to what it means to so act.
As the court explained in O'Dea v The State of Western Australia, the application of s 7(a) to a case of the kind referred to in [64] above requires proof that the offenders were acting in concert in the sense explained in O'Dea v The State of Western Australia. Absent that requirement, there would be no principled justification for s 7(a) operating to encompass a person who did only one of several acts that together constitute the conduct element of an offence. Where s 7(a) operates to encompass such a person, it thereby renders the person liable to punishment for acts some of which the person has not done personally. The existence of the concert between the actors explains and justifies this operation. While the principle(s) informing this operation of s 7(a) has not been authoritatively stated by this court or by the High Court,[50] it has been said that the existence of the concert means that, as McLure P and Buss JA have put it, each actor is agent for the other(s) in doing the acts done by the particular actor,[51] or as Corboy J has expressed it, the acts of each actor can be attributed to all of them.[52]
[50] Special leave to appeal against this court's decision in O'Dea v The State of Western Australia was granted on 3 December 2021.
[51] Campbell v The State of Western Australia [21] - [22],[165] - [168].
[52] Campbell v The State of Western Australia [221], [288], [304], [308].
There are cases which might be taken to suggest that s 10(c) of the Interpretation Act itself brings about the operation of s 7(a) in [64] above. However, for the reasons below, we do not think that is so.
In R v Wyles; Ex parte Attorney‑General,[53] in a passage quoted in O'Dea v The State of Western Australia[54] and in many other cases, Lucas J said:[55]
Section 7(a) deals … with persons who would formerly have been called principals in the first degree; s 7(b) and 7(c) deal with those who would have been called principals in the second degree, and s 7(d) deals with those who would have been called accessories before the fact. The section therefore attaches criminal responsibility to all the different categories of persons who would have been implicated at common law. In doing so it is hardly likely to have intended to make a drastic change in the law, so the section has no operation at all unless the person or persons described in s 7(a) himself or themselves does or do all the acts which constitute the offence, and in the case of more than one person, each participates in each of the acts.
If there is a difficulty it may in my opinion be avoided by reading s 7(a) distributively; 'All persons who actually do the act or one or more acts in the series which constitutes or constitute the offence'. This does not really involve reading any additional words into s 7(a); it is a reading which is derived from the provisions of s 32 of the Acts Interpretation Act. (emphasis added)
[53] R v Wyles; Ex parte Attorney‑General [1977] Qd R 169.
[54] O'Dea v The State of Western Australia [86].
[55] R v Wyles; Ex parte Attorney‑General (177).
While Lucas J prayed (the equivalent of) s 10(c) of the Interpretation Act in aid of his reasoning - describing the reading he adopted as 'derived from' it - his Honour did not say that, of itself, it brought about the distributive reading to which he referred. There are two reasons why, in our view, s 10(c) of the Interpretation Act does not of itself effect the distributive reading of s 7(a) referred to by Lucas J.
First, as already noted, s 10(c) of the Interpretation Act provides, relevantly, that in any written law, 'words in the singular number include the plural'. Read with s 10(c) of the Interpretation Act, s 7(a) encompasses every person who actually does the act or acts … which constitute the offence. So read, s 7(a) applies to a person who does all of the several acts which together constitute the conduct element of an offence, but not so as to encompass a person who did only one of several acts that together constitute the conduct element of an offence.
Secondly, if s 10(c) itself enabled the distributive reading referred to by Lucas J, s 7(a) would apply to every case in which a person did an act which, together with acts done by other persons, constitute the conduct element of an offence, without any need to show a connection between the actors. In other words, s 7(a) would apply to a situation where several people acting independently of each other do acts which, in combination, constitute the conduct element of an offence. That has never been suggested and was not suggested by Lucas J. To the contrary, his Honour held that, in the absence of a 'common unlawful purpose' (177) or a 'common unlawful intention' (178), s 7(a) would not apply to a case where several people undertake separate acts which, in combination, comprise all of the elements of an offence.[56]
[56] See also R v Handlen and Paddison [2010] QCA 371; (2010) 247 FLR 261 [65]. Compare R v Sherrington [2001] QCA 105 [11]. For a recent statement in this State, see Whitby v The State of Western Australia [2019] WASCA 11 [190].
Thus, it is the fact that the actors are acting in concert in doing the acts constituting the offence, with the consequences identified in [68] above, that sustains the application of s 7(a) to cases involving multiple offenders, where each does one or more acts in a series of acts that together constitute the conduct element of an offence. It is through the agency or attribution referred to in [68] above that each actor can be said - in the terms of s 7(a) of the Code read with s 10(c) of the Interpretation Act - to have actually done the acts which constitute the offence.[57]
[57] Any question as to whether this understanding of s 7(a) has any implications (and if so what) for the different approaches in L v The State of Western Australia and in Campbell v The State of Western Australia does not arise in the present case, given that the State alleged that each accused did at least one act forming part of 'the act'.
The notion of acting in concert has been described by this court as acting in combination, acting together, collaborating or having joined forces. It involves acting pursuant to an arrangement or understanding, whether express or tacit. Acting in concert involves mutuality. One person, A, cannot act in concert with B unless B is also acting in concert with A; a person cannot act in concert with another when that other is acting independently of the first person. In order to be acting in concert in doing their acts the parties must, by their words and/or conduct, manifest to each other the intention to act together, that is, to cooperate or collaborate. One way of doing this is by express agreement, but that is not the only way. Parties' conduct may reveal a tacit shared intention.
This analysis does not overlook that the phrase 'acting in concert' is not used in s 7 or elsewhere in the Code. In the application of s 7(a), the phrase 'acting in concert' usefully captures the degree of connection between multiple actors that sustains a conclusion in the case of an offence constituted by a series of acts done by those actors, that each actor has actually done all of the acts which constitute the offence. It reflects a construction of s 7(a) as incorporating the general law precept that, in cases of concerted action by multiple actors, the acts of each actor can be treated as done by or on behalf of or be attributed to all of them. That precept is longstanding and of broad application in both the criminal sphere[58] and in the civil sphere.[59]
[58] See, for example, the cases referred to by McHugh J in Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 [70], [72] and those referred to by Corboy J in Campbell v The State of Western Australia [232], [237], [240]. See also IL v The Queen [2017] HCA 27; (2017) 262 CLR 268 [29].
[59] See, for example, Heydon's Case (1612) 11 Co Rep 5a, 5b; 77 ER 1150, 1151, and the discussion and cases referred to in Williams G, Joint Torts and Contributory Negligence: A Study of Concurrent Fault in Great Britain, Ireland and the Common-Law Dominions (1951), pp 9 ‑ 14; see also IL v The Queen [29], referring to Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574, 580 ‑ 581.
This does not mean that the expression 'acting in concert' is to be construed and applied as if it had statutory force. Other expressions such as 'common purpose' and 'joint criminal enterprise' might be thought to similarly capture the degree of connection to which we have referred.[60]
Disposition of ground 1
[60] See, in the context of the common law, McAuliffe v The Queen (1995) 183 CLR 108, 113; Likiardopoulos v The Queen [2012] HCA 37; (2012) 247 CLR 265 [19].
For the following two reasons, which overlap, in our opinion ground 1 is made out.
First, in our respectful opinion the judge's direction invited or permitted the jury to reason to guilt in an impermissible manner by identifying a pathway to a conclusion that the three accused brothers were acting together that was, in the circumstances of this case, unavailable and impermissible.
The judge correctly identified to the jury the requirement for the prosecution to prove that the three men were acting together. As outlined in [51] above, the judge told the jury that the State could prove that the three accused brothers were acting together in one of two ways.[61] The first was to prove that, before the attack was commenced, there was a plan or shared understanding between the three men, whether express or unspoken, that they would together physically attack the complainant. The second was to prove that the event was an evolving event into which each accused joined. The judge then explained what the State would need to prove as against each accused to establish this second means of proving the acting together requirement. See [52] above.
[61] ts 1403 ‑ 1404.
It is clear from the judge's direction as a whole that the second means of proving the 'acting together' requirement was a true alternative to the first. Moreover, the second means of proving that the men acted together was the primary focus of the judge's explanation of the State case on that essential element. It was the subject of (i) the judge's earlier directions on the Friday,[62] (ii) the directions earlier on the Tuesday before the judge turned to answer the juror's question (see [37] above),[63] and (iii) the question trail.[64] None of those parts of the judge's directions made any reference to the first way of proving that the men acted together.
[62] ts 1313 - 1314; see [34] above.
[63] ts 1401; see [48] above.
[64] Question 5; see [40] above.
However, in the particular circumstances of this case, given the manner in which the State framed its case, in order for the State to prove that the three men were acting in concert it was necessary for the State to prove that, before the attack was commenced there was a plan or a shared understanding (whether explicit or tacit) that they would together physically attack the complainant. In other words, in our view only the first of the two pathways identified by the trial judge was available. That arose from the combination of two things: the State case identified the 'act' for the purposes of the charge as the entirety of the prolonged physical attack on the complainant; and it was common ground that neither Logan nor Jacob was physically present when Justin commenced what was, on the State case, his attack on the complainant. Consequently, in order for the State to prove that, in doing their respective acts that together constituted the 'act' for the purpose of the charge, the three accused brothers were acting in concert in the sense explained in [75] above it was necessary for the State to prove that the concert came into existence before the commission of the first of Justin's acts forming part of the prolonged physical attack on the complainant. Proof of what the judge termed an 'evolving acting together' could not suffice because it could not establish that when Justin struck his first blow the brothers were acting in concert so as to render Jacob liable for the striking of the blow forming part of the charged 'act'. Ultimately, the respondent conceded that this was so.[65]
[65] Appeal ts 45.
For these reasons, ground 1 is established.
Secondly, ground 1 is made out for the further reason that the directions as a whole created a real risk that the jury would think that whether the accused men were acting together was determined solely by whether Jacob had the knowledge or belief identified by the judge, when such knowledge or belief was insufficient to sustain a conclusion of acting together.
In our respectful view, the judge's direction for Jacob could readily be understood to mean that whether Jacob could be found to be acting together with the others would turn solely on whether he knew that Justin would commence an attack on the complainant and that Logan would commence such an attack, in each case at the time such attacks commenced.[66]
[66] ts 1313 - 1314, 1401 - 1402, 1404 - 1405, and see question 5 on Jacob's question trail.
This understanding could naturally arise from a number of aspects of the direction and was reinforced by the manner in which question 5 of the question trail was framed. For example, having identified the need for the State to prove that the accused men were acting together, the judge turned to explain what that meant 'in the context of this trial, and the fact that it was an evolving event'.[67] The judge then explained the position in relation to Jacob in the passage set out at [48] above.[68] That passage was naturally to be understood as the elucidation of what acting together meant and required in the State case against Jacob.
[67] ts 1400.
[68] ts 1401 ‑ 1402.
As is apparent, this passage directed attention only to Jacob's knowledge and belief as to what the others would do. It did not invite attention to whether any such knowledge and belief on the part of Jacob was derived from things said or done by his brothers, when a belief not so derived was not germane to the acting together issue. Nor would a conclusion that Jacob had the knowledge referred to in this passage satisfy the need for mutuality in order that parties may be said to be acting in concert (see [75] above). A conclusion that when Justin left the table Jacob knew what Justin was going to do falls well short of a conclusion that Jacob and Justin were thereafter acting in concert. Jacob's knowledge of what Justin was to do might, if combined with acts of assistance, have sustained a case of aiding under s 7(c), but that was not the State case against Jacob. His knowledge alone could not sustain a case of acting in concert.
The terms in which question 5 of the question trail was framed also suggested the understanding referred to in [85] above. Question 5 was in the following terms:
5.Has the State proven beyond reasonable doubt that Jacob Rex O'Leary was acting together with Justin Sam O'Leary and Logan Francis O'Leary? That is, has the State proven beyond reasonable doubt that Jacob Rex O'Leary had a positive belief that Justin Sam O'Leary would commence a physical attack on [the complainant] and that Logan Francis O'Leary would act with Justin Sam O'Leary and also physically attack [the complainant]?
If 'no', the verdict is not guilty.
If 'yes'[,] proceed to question 6. (emphasis added)
The natural reading of question 5 as a whole is that the second question posed, commencing with the words '[t]hat is', is a more detailed explication of the first question - whether the State had proved that Jacob was acting together with his brothers. In other words, if the second formulation was answered 'yes' then question 5 was so answered. Indeed, the judge said this to the jury in her Honour's direction:[69]
Now, if you turn over, in relation to the question trail, to Jacob O'Leary … question 5 for Jacob O'Leary, the question is this: has the State proven beyond reasonable doubt that Jacob Rex O'Leary was acting together with Justin Sam O'Leary and Logan Francis O'Leary?
So again, the start of the question is the same. Are they acting together? But in order to prove that in respect of Jacob, the question is ‑ that is, has the State proven beyond reasonable doubt that Jacob Rex O'Leary had a positive belief that Justin Sam O'Leary would commence a physical attack on [the complainant], and that Logan Francis O'Leary would act with Justin Sam O'Leary, and also physically attack [the complainant]? (emphasis added)
[69] ts 1403.
For this second reason, ground 1 is made out.
No counsel objected to the directions the subject of ground 1. However, the absence of objection is not a barrier to the ground, which asserts a wrong decision on a question of law. A misdirection in a judge's summing up to the jury, on a matter of substantive or adjectival law is a wrong decision on a question of law, regardless of whether objection is taken at trial.[70] That is what occurred here. In any event, the misdirection gave rise to a miscarriage of justice in inviting the jury to take an impermissible path in reasoning to guilt.
[70] OKS v The State of Western Australia [2018] WASCA 48; (2018) 52 WAR 482 [244] - [255], [260] - [262].
In fairness to the trial judge, a number of observations should be made. First, the prosecutor's closing submissions left the factual basis for the State case on 'acting together' less than clear. Secondly, the judge was forced to grapple with the complex issues arising from the manner in which the State had framed its case. Thirdly, in doing so, the judge did not receive the assistance from counsel for which one might hope. Very few suggestions were made by counsel, including the prosecutor, as to how the State's case was to be understood and explained. When, in discussion with counsel during the trial, her Honour identified the two pathways, all counsel, including the prosecutor, agreed with her Honour's summary.[71] Fourthly, as already noted, no counsel raised any objection to the aspects of her Honour's direction which we respectfully consider erroneous. Fifthly, the unavailability of the second pathway to concluding that the three brothers were acting together could not be said to be obvious. At no point did any trial counsel raise any concern as to the second pathway or the proposed direction concerning it. Moreover, on appeal, the complaint that the second pathway was unavailable was advanced for the first time in oral submissions.
[71] ts 1371 - 1372, 1375 - 1376.
Ground 2 of Jacob's appeal: the intent element
Submissions
Jacob points to the centrality of the identification of the relevant 'act' for a charge under s 304(2). It is that 'act' in respect of which the prosecution must prove the element of intent to harm.[72]
[72] Jacob's submissions [32], referring to Roberts v The State of Western Australia [2019] WASCA 83 [14].
Jacob submits that because the 'act' alleged by the prosecution was the entirety of the prolonged physical attack by all of the male accused, it was necessary for the prosecution to prove that Jacob had the necessary intention from the commencement of the attack by Justin until the conclusion of the attack. However, the judge's direction did not give effect to that requirement. Rather, the judge directed that the State must prove beyond reasonable doubt that an accused, when doing their part of the act that makes up the 'act', had the relevant intention. Jacob also points to question 4, which was to similar effect. He submits that it is not sufficient that he had the relevant intent only at the time he carried out his physical parts of the 'act'.[73]
[73] Jacob's submissions [33] - [38].
The respondent submits that there is no error in this respect in the judge's direction. It submits that it was unnecessary for Jacob to have had the relevant intent throughout the entirety of the offending conduct. As Jacob did not become liable to conviction until he physically participated in the attack, it was sufficient that his physical participation was accompanied by an intent to harm. The respondent points, by way of analogy, to an offence committed by a single offender involving a prolonged beating, submitting that in such a case it would not be necessary for the prosecution to prove that the intent to harm existed throughout the beating.[74]
Disposition
[74] Respondent's submissions [22].
This ground raises a crisp legal issue: in a charge under s 304(2) of the Code, where the charged 'act' is constituted by a series of acts done by more than one person, must, as the appellants submit, an accused have had the intent to harm referred to in s 304(2) for the whole of the time during which, or at least at all of the times at which each of, the series of acts constituting the offence occurred? Or, as the judge directed and the respondent submits, is it sufficient that the accused had the necessary intent to harm at the time(s) that the particular accused did the act(s), or one of the acts, which that particular accused did?
An offence under s 304(2) may be seen to involve three elements, comprising conduct (an act or omission), intention (intent to harm) and circumstances (the result or likely result of the act or omission). In order to commit an offence under s 304(2), a person must do[75] an act which meets two criteria. First, the act must be done with an intent to harm.[76] Secondly, the act must result in either bodily harm to a person or in the endangering, or likely endangering, of the life, health or safety of a person. The same 'act' must meet both these criteria.
[75] Section 304(2) also provides for the commission of an offence by the omission to do an act, but that limb of s 304(2) does not materially alter the analysis for present purposes, and, for ease of exposition, can be put to one side.
[76] As defined in s 304(3).
Thus, as this court explained in Roberts v The State of Western Australia, the identification of the relevant 'act' is of central significance to a charge under s 304(2). Among other things, the court observed that the element of intent to harm relates to the doing of the relevant 'act'. That observation reflects the text and structure of s 304(2). The intent required by the mental element of the offence must accompany the act or acts constituting the conduct element.
In our view, it was not open for the State to allege, and it was not open for the judge to direct, that (i) whether the result element is established is to be evaluated by reference to the 'act' constituted by the entire course of conduct during the prolonged attack, and yet, (ii) in order to establish the intention element, it is sufficient if at least one of the individual acts constituting the 'act' were done with the required intent. In our view, both the intention element and the result element must be addressed by reference to the same 'act', namely that identified by the State - the prolonged attack.
In our view, the need, recognised in Roberts v The State of Western Australia, for (i) the intent to accompany the act referred to in s 304(2), and (ii) the (same) act to have the result or likely result prescribed in s 304(2) arises as a matter of construction from the plain terms of the provision.
For the reasons in [96] and [97] above, in a charge under s 304(2), given the central significance of the 'act' in the evaluation of the other elements of the charge, it will ordinarily, if not invariably, be critical to identify the conduct said to constitute the 'act'. That was so in the circumstances of this case, given the involvement of three actors and given the availability of differing conceptions of the 'act'.
Because the State framed its case to identify the act as the entirety of the prolonged physical attack, comprising a series of individual acts done by three different people, in our opinion it was required to prove that the required intent accompanied the doing of all of the acts which together comprise the conduct element ‑ the 'act' for the purposes of s 304(2) ‑ regardless of who did those acts. In so concluding, we accept that it would have been open to the prosecution to frame its case on alternative bases, each identifying a different 'act'. However, the State did not do so in this case; it identified the 'act' in a singular fashion.
Thus, in our opinion, it is not enough that an accused did those of the individual acts actually done by him or her with the required intent. It follows that it is also not enough for the accused to have done one of the constitutive acts with the required intent.
One reason underlying the position outlined in [98] and [101] above may be that, as explained in [68] above, given the concert, each actor is agent for the other(s) in doing the acts done by the particular actor, or the acts of each actor can be attributed to all of them. Thus, in the application of the intent element, all of the constitutive acts are to be treated as done by each actor and the intent requirement applied to each act, regardless of which of the actors physically performed the act.
The respondent submits that to conclude, as we have, that the element of intent applies to all the constitutive individual acts, including an act actually done by another person, is 'artificial'.[77] Any artificiality arises from the manner in which the prosecution framed its case, by deploying s 304(2) in relation to a course of conduct involving multiple acts engaged in by multiple accused.
[77] Appeal ts 46.
The judge's direction required only that Jacob have the necessary intent in doing those of the constitutive acts that he did. Consequently, it failed to meet the requirement outlined in [98] above, that the intent accompany all of the constitutive acts. Being a misdirection on a matter of substantive law rendered this aspect of the direction a wrong decision on a question of law. Thus, as explained in [90] above, the failure of trial counsel to object to the direction is no barrier to the ground of appeal.
The respondent did not invite application of the proviso.
For these reasons, ground 2 is made out.
Ground 3 of Jacob's appeal: the direction as to Ms Honicke's evidence
Ground 3 concerns a direction by the judge that evidence given by Ms Honicke as to a conversation between Logan and Rex was not admissible in Jacob's case unless the conversation was in Jacob's presence.
The relevant evidence of Ms Honicke
Ms Honicke ate at The Pearlers Restaurant on the night the offending occurred. She sat inside the restaurant, as did the O'Leary family.[78]
[78] ts 666.
We will say more as to Ms Honicke's evidence in determining ground 4. For present purposes, the following is sufficient. She said in her evidence that she saw Logan leave his table and go in the direction of the bathroom. After that, she heard noise at the table where the O'Learys were, which caused her to turn around to look in that direction. She then saw Justin stand up, hit the table, say 'fuck it' and walk outside looking 'really pissed off'. Her evidence was that Logan had not returned to the table at that stage. Ms Honicke said that Logan then returned from the bathroom, and Rex said to him '[g]o get your brother';[79] Rex did not further explain this statement.[80] Ms Honicke said:[81]
Okay. So what happened after he had gone out through that opening towards the outside area?---Logan had then returned back from the bathroom and his father, Rex, met him in the hallway and just said, 'Go get your brother.' - - -
Okay?--- - - - and then Logan looked like he didn't have a clue what was going on and then, yeah, he just ‑ he walked out there. And then - - -
Just walked out there?---Yeah. I would say ‑ say, a faster pace, but he did rush because, obviously, he didn't know what was going on.
Jacob's trial counsel's submissions as to the evidence
[79] ts 669, 674.
[80] ts 674.
[81] ts 669.
In the course of recounting Ms Honicke's evidence in his closing address, Jacob's trial counsel referred to what the prosecutor said in opening, as set out at [18] above. He said that it was essential for the prosecution to prove a plan or understanding, saying:[82]
it [a plan or common purpose] doesn't come out, does it. It's just not proved. The best independent [sic - evidence] in this case, I suggest to you, Chervon Honicke, describes Logan going to what appears to be the toilets. He comes back and his father says to him, 'go out and get your brother'. And he didn't have a clue what was going on. It looked like he didn't have a clue what was going on. How's that consistent with there being a plan between the two of them.
And, of course, we're one step further removed, aren't we, with my client, Jacob O'Leary. He's not told to go out there at all. So far from this being three assailants getting ready to go out there and get this bloke, all in concert, pursuant to a plan. It's a raggle taggle Brown's cows arrival at the scene. Neither of them knowing what the other was doing. And I suggest to you, any finding other than that is not in accordance with the evidence, with respect.
[82] ts 1215.
After the conclusion of Jacob's trial counsel's closing, the judge raised with counsel a concern that counsel had relied on a statement not made in Jacob's presence as evidence of the truth of the statement.[83] While Jacob's trial counsel initially contended to the contrary, he ultimately said that he was content with the judge's proposed direction that the evidence of what Ms Honicke heard Rex say to Logan was relevant and admissible in the case concerning Jacob only if the jury found that it was said in Jacob's presence or hearing.[84]
The judge's direction
[83] ts 1233.
[84] ts 1236.
The judge directed the jury that there was a 'broad rule of law' that things that one accused has said outside the court where another accused is not involved are not admissible in the case of the other accused. After giving two other examples of evidence governed by that rule, the judge said as follows:[85]
The third piece of evidence relates to Mrs Honicke's evidence regarding something she heard Rex O'Leary say to Logan after Justin had stood up from the table and went out the back. Mrs Honicke's evidence was that after Justin had gone out through that opening toward the outside area Logan had then returned back from the bathroom and his father Rex met him in the hallway and just said, 'Go get your brother'. You will recall Mr Percy made mention of this evidence in his closing address to you and submitted to you that it was a relevant piece of evidence to consider regarding Jacob O'Leary's case.
However, as it arises from Mrs Honicke's evidence, this was said by Rex to Logan. Not to Jacob, Justin or Ms Grose. And based on the rule of law I've explained earlier, this evidence is only admissible in the trial against Mr Logan O'Leary and not admissible in Justin, Jacob or Ms Grose's trial, that is, either for or against them. But you will need to consider who was present and in the hearing of that conversation. If you are satisfied that Jacob was present and that that was said by Rex to Logan in Jacob's presence and hearing, then it would be a piece of evidence that you could consider in Jacob's trial.
Submissions on appeal
[85] ts 1293.
Jacob emphasises that one of the pathways to a conclusion that the male accused were acting in concert was proof by the prosecution that there had been a plan, or joint belief or understanding reached before the attack commenced, between all of Justin, Logan and Jacob that they would together physically attack the complainant.
Jacob submits that he was not seeking to make hearsay use of Ms Honicke's evidence, and that he sought to rely on it to establish the fact that the words were said by Rex to Logan, not to establish the truth of any assertion made in Rex's statement to Logan.
Consequently, Jacob submits, the trial judge's ruling was a wrong decision on a question of law or gave rise to a miscarriage of justice in wrongly depriving him of the ability to rely on exculpatory evidence.
The respondent accepts that the evidence the subject of the judge's direction was not hearsay and was not excluded by the hearsay rule. However, it submits that the evidence was not relevant.
Disposition
The judge indicated to counsel that the evidence the subject of this ground was inadmissible because it was hearsay and directed the jury in terms to that effect. As the respondent concedes, that was not correct. The evidence that Rex said to Logan 'go get your brother' was led to prove that Rex's statement was made, not to prove its truth. Rex's statement contained no implied assertion of a kind that would engage the hearsay rule.[86]
[86] See, in that regard, East Metropolitan Health Service v Popovic [2019] WASCA 18; (2019) 54 WAR 40 [180] - [181].
The issue raised by the respondent's submissions is whether the evidence was relevant. Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings.[87]
[87] Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 [2], [3]; HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 [5] - [6].
In our respectful opinion, for the following reasons, the evidence of Ms Honicke as to what Rex said to Logan was relevant.
One of the facts in issue, arising from the first pathway to a conclusion of acting together, was whether the State had proved beyond reasonable doubt that there was a plan, or a joint belief or understanding, before the attack commenced, between all of Justin, Logan and Jacob that they would together physically attack the complainant. The State was entitled to point to the conduct of the three brothers during the attack, including what was visible on the CCTV footage, in support of its case that there was such a plan or understanding before the attack commenced. Part of that is the fact that Logan arrived in the outside patio area less than one minute after Justin had arrived and commenced (what on the State case was) his attack. Jacob's defence was entitled to rely on Ms Honicke's evidence, as trial counsel did, to answer the State's case. Rather than inferring that Logan went outside in accordance with the plan, the jury could be invited to infer that he went outside because his father had told him to do so. Given that the State case was that a plan or understanding was reached between all three brothers, in this manner the evidence of what Rex told Logan was capable of affecting the jury's assessment of the probability of the existence of a fact in issue in the case against Jacob.
For these reasons, in our respectful view the judge's direction erroneously conditioned use by the jury of this evidence in consideration of Jacob's case on the jury's satisfaction that Rex's statement was made within Jacob's hearing, and thereby otherwise erroneously excluded use by the jury of that evidence. That direction constituted a wrong decision on a question of law. In any event, the direction occasioned a miscarriage of justice by wrongly depriving Jacob of the ability to rely on potentially exculpatory evidence, in circumstances where there could be no forensic advantage to Jacob's counsel's ultimate failure to object to the direction.
Ground 4 of Jacob's appeal: was the verdict unreasonable or unsupported by the evidence?
Submissions
Jacob submits there was no evidence that he physically participated in the 'act', or that he had been physically present, throughout the entirety of the 'act' relied upon by the State. He submits that, consequently, the only basis for guilt was if the prosecution proved that he had been a party to a relevant plan with, or held a joint belief or understanding with, both of the other male accused before the act began such that it should be concluded that he was acting in concert with them even at the time that he was not physically present with them.[88]
[88] Jacob's submissions [56] - [58].
Jacob submits that it was not open to the jury to conclude that he had been party to such a plan or had held any relevant joint understanding or belief together with the other male accused, taking into account the following matters:
(1)There was no evidence of interaction of any sort between him and Justin before Justin left the table to go outside, and no sufficient evidence to sustain an inference that a plan or understanding was formed between the accused brothers.[89]
(2)Jacob could not have joined in a plan with or reached any joint belief or understanding with Logan before the act began, given the evidence of Ms Honicke. Her evidence established that he was not at the table just before Justin went out to the patio and that when Logan met his father coming out of the bathroom, Logan was simply told to go and get his brother. There was no evidence that Justin had spoken with Jacob or Logan before each of them eventually joined in the act.[90]
[89] Jacob's submissions [60] - [62].
[90] Jacob's submissions [67].
Consequently, the jury must have had a reasonable doubt about whether Jacob was guilty of the offence charged on the basis alleged, namely that he was a principal offender.
The respondent submits that, on the whole of the evidence, it was open to the jury to infer that (i) Justin left the table intending to attack the complainant, (ii) Logan and Jacob believed that Justin would attack the complainant, and (iii) both of them joined in the attack which Justin had started.[91]
Disposition
Legal principles
[91] Respondent's submissions [44].
The principles applicable to a ground of appeal asserting that a verdict was unreasonable and could not be supported by the evidence are well established and need not be repeated. The question for the appeal court is whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the only rational inference that the circumstances permitted was that the appellant was guilty. That directs attention to whether the jury must, as distinct from might, have entertained a reasonable doubt as to guilt.
The principles relating to criminal cases that turn upon circumstantial evidence were stated by French CJ, Kiefel, Bell, Keane and Gordon JJ in R v Baden‑Clay as follows:[92]
(1) When the case against an accused rests substantially upon circumstantial evidence, the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.
(2) The jury can be satisfied of the guilt of the accused only if guilt is not simply a rational inference, but the only rational inference that the circumstances permit.
(3) For an inference to be reasonable, it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding an accused person guilty if the inference of guilt is the only inference open to reasonable people on a consideration of all the facts in evidence.
(4) In considering a circumstantial case, all of the circumstances are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion.
[92] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [46] - [47].
Thus, Jacob must demonstrate that the jury was bound to find that there was, on the evidence, an alternative reasonable inference consistent with innocence. For the reasons that follow, we are so satisfied.
The alternative inference
The starting point is the proper identification of what, on the State case, it was necessary to prove in order to establish that the male accused were acting together. For the reasons given in upholding ground 1, drawing the inferences in [126] above would not establish that the brothers were acting together. Rather, the State was required to prove that, before Justin went outside to the patio area, the three brothers had reached an agreement or understanding, whether express or tacit, that they would attack the complainant.
In our opinion, on the whole of the evidence there is an alternative inference, consistent with Jacob's innocence, that cannot be excluded as a reasonable inference on the whole of the evidence.[93] The alternative inference is that:
(1)after discussion at the table about the complainant, Justin decided to go outside and attack the complainant, without having reached any plan, agreement or understanding with his brothers;
(2)Jacob then decided to go outside to see what was happening between his brother(s) and the complainant;
(3)once Jacob got outside, he decided to act in the manner that is observed on the CCTV footage.
[93] This alternative inference is consistent with innocence given the manner in which the State framed its case against Jacob, even though this inference might, potentially, have given rise to criminal liability on a different basis. See Le‑Ta v The State of Western Australia [2020] WASCA 14 [70].
This alternative hypothesis was advanced at trial by the defence; indeed, it was a central plank of the defence case.
We proceed to explain the conclusion in [131] by reference to the evidence.
Analysis of the evidence
For present purposes, the evidence primarily relied on by the prosecution was (i) the CCTV footage, (ii) the evidence of the complainant and his partner as to what occurred from when Justin came out to the patio area and (iii) the evidence of other diners and staff at the restaurant that night. The first two of these categories of evidence do not seem to us to assist the prosecution in excluding the alternative inference referred to in [131] above. In our view, what Justin, Logan and Jacob can be seen doing on the CCTV footage is entirely consistent with that alternative inference. The same is true of the evidence of the complainant and his partner describing what each of the three male accused did.
That leaves the evidence of diners and staff, which may be summarised as follows.
By far the most significant evidence, from the prosecution perspective, came from Ms Honicke.
Ms Honicke knew Logan O'Leary and knew of the rest of the O'Leary family without knowing them personally. When she came into the restaurant, she said hello to Logan and he appeared to be in a good mood.[94]
[94] ts 664, 673.
Later, Ms Honicke noticed Logan leave his table and saw him walk in the direction of the bathroom.[95] After Logan left, Ms Honicke said there was some noise, which she described as a 'pub noise … A bit of loud noise but you couldn't hear what anybody was saying'. She said the noise 'got louder' and that it sounded 'aggressive' (though, she qualified this by saying that she was not sure if 'aggressive' was the right word). She could not say who was talking - she just heard a lot of voices talking all at once, and she could not say if they were male or female voices. The noise became overbearing to the point she turned around to look at the table.[96] In cross‑examination (by Jacob's counsel), she said 'something wasn't quite right' and that there was a 'degree of anxiety or angst at the table which caused [her] to look around'.[97]
[95] ts 666 ‑ 667, 674.
[96] ts 667.
[97] ts 673 ‑ 674.
Ms Honicke then gave the evidence outlined in [110] above. In summary, after hearing the noise described in [138] above, she saw Justin stand up, hit the table, say 'fuck it' and walk outside looking 'really pissed off'. Her evidence was that Logan had not returned to the table at that stage. Ms Honicke said that Logan then returned from the bathroom, and Rex said to him 'Go get your brother';[98] Rex did not further explain this statement.[99]
[98] ts 667 ‑ 669, 674.
[99] ts 674.
Ms Honicke then said that she could hear chairs being thrown around and she could hear a woman screaming the words 'get off him'. She could also hear male voices yelling, but could not hear what they were saying.[100] In cross‑examination (by Jacob's counsel), Ms Honicke said that at the time she heard the woman scream 'get off him', she could not say exactly who remained at the O'Leary table. But, she said, there was not a mass exodus of everyone from the O'Leary table going outside ‑ some remained at the table.[101]
[100] ts 670.
[101] ts 674 ‑ 675.
She gave evidence that, after things died down, Justin came back inside in a ripped shirt with some blood on him, and then Logan walked in second. Then, the family left.[102] Ms Honicke said that she did not see anyone else from the O'Leary table get up from the table before Justin and Logan came back inside.[103]
[102] ts 670.
[103] ts 671.
The evidence of other diners and staff may be dealt with more briefly. As will be seen, from the perspective of proof by the State of a plan, agreement or understanding before Justin went outside, none of it was capable of adding materially to what Ms Honicke had said.
Ms Katherine Kelly was dining with her husband and a family friend inside The Pearlers Restaurant on the night of the offending. Ms Kelly said that, that night, she heard shouting and yelling coming from out the back of the restaurant.[104] Ms Kelly said that she saw about five males get up from a table of eight people and go towards the back of the restaurant before[105] the yelling started.[106] Ms Kelly said those five males all got up at the same time.[107] In cross‑examination (by Jacob's counsel), Ms Kelly said she did not observe that table being unduly excited or animated before the yelling outside, and she could not remember any conversation they were having.[108]
[104] ts 607.
[105] See also ts 612.
[106] ts 608 ‑ 609.
[107] ts 612.
[108] ts 611.
Ms Kelly's husband, Daniel Kelly also gave evidence. He said that he saw a table of eight in the restaurant.[109] He saw a couple (in their mid‑20s to 30s) come into the restaurant later. A little while after that couple entered (about 10 - 15 minutes later), he said that he thought all eight people of the table of eight got up and walked towards the outside area.[110] He then heard a 'kerfuffle' - tables and chairs moving, voices, and a scream from a lady.[111]
[109] ts 626.
[110] ts 628 ‑ 629, see also ts 633.
[111] ts 629.
Mr Kelly could not recall any conversation between the people at the table of eight prior to the commotion occurring outside. He could not recall them (at the table of eight people) becoming unusually agitated or animated at any stage before the commotion. Mr Kelly also said that he could not recall them becoming particularly animated or agitated when the younger couple walked in.[112] Mr Kelly could not recall whether people from the table of eight went outside at the same time or at different stages.[113]
[112] ts 632 ‑ 633.
[113] ts 633.
Ms Marites Quinones was a waiter working at The Pearlers Restaurant on the night the offending occurred. She said that a 'family group' of six to eight people (being the O'Leary family) were dining at the restaurant that night, as were a couple (a male and a female) who were seated outside.[114] Ms Quinones said that everyone from the table of the family group went outside at one point. Ms Quinones said she was inside the restaurant when she heard banging coming from the outside area, and that she looked to the outside area through a window while inside near the bar.[115] She saw that the male of the couple was covered in his own blood, and the female was carrying a chair.[116] She said in cross-examination (by Jacob's counsel) that, until the time the family went outside, no argument or fighting was coming from their table. She said they did not seem to be angry and they were sitting down normally before she heard the noise. Ms Quinones also said that she did not hear any conversation they were having at their table.[117]
[114] ts 643, 646.
[115] ts 648 ‑ 649.
[116] ts 649
[117] ts 659
Mr My Quang Dang is the chef and owner of The Pearlers Restaurant. He did not give any evidence of seeing or hearing the group at the O'Leary table before the three brothers had left the table.
The State led evidence as to an incident in 2017 that involved the complainant, members of the O'Leary family and others, and submitted at trial that the O'Leary family must have had discussions after that incident about what they would do to the complainant as payback if the opportunity arose. The prosecutor further submitted that this supported the inference that the brothers had agreed to attack the complainant.[118] While such evidence might have been said to provide a motive for the attack, it could not take the prosecution case very far without evidence that, on the night of the attack, there was a discussion about attacking the complainant.
[118] ts 1140.
Jacob and other defence witnesses gave evidence. However, there is no suggestion that any aspect of their evidence assisted the prosecution case in the respect with which this ground is concerned.
In the end, Ms Honicke was the only person who gave material evidence concerning what occurred at the O'Leary table before Justin and his brothers left the table. For two reasons, her evidence was incapable of excluding the alternative inference referred to in [131] above and establishing that, before Justin went outside to the patio area, the three brothers had reached an agreement or understanding, whether express or tacit, that they would attack the complainant.
First, on her evidence, the aggressive sounding noise coming from the O'Leary table and Justin's hitting of the table and saying 'fuck it' all occurred in Logan's absence. Secondly, and in any event, her evidence outlined in [138] and [139] above is entirely consistent with the alternative inference. In the absence of any evidence of what Logan and Jacob did or said before Justin left the table, the evidence was incapable of proving that Jacob manifested, by words and/or conduct, an intention to act together with Justin. For example, consistently with Ms Honicke's evidence, in the course of the noisy conversation preceding Justin's leaving of the table, Jacob might have been attempting to dissuade his brother from going to the patio to attack the complainant. Equally consistent is that Jacob did nothing to convey any intention to join in an attack on the complainant.
Conclusion on ground 4
For these reasons, in our opinion, the evidence was incapable of excluding the alternative inference referred to in [131] above and of establishing beyond reasonable doubt that, before Justin went outside to the patio area, the three brothers had reached an agreement or understanding, whether express or tacit, that they would attack the complainant. Consequently, on the evidence as a whole it was not open to the jury to be satisfied beyond reasonable doubt of Jacob's guilt.
In so concluding, we have borne carefully in mind that the setting aside of a jury's verdict is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal in seeing and hearing the witnesses.[119] We have considered the prosecution evidence at its highest, assuming that any conflicts between witnesses' evidence are resolved favourably to the prosecution. In the present case, where the question is what inference(s) may be drawn from the primary facts supported by the prosecution witnesses, the jury's advantage, while still demanding a degree of appellate restraint, is less substantial than in a case where the issues on appeal concern credibility issues and involve conflicts in the evidence of different witnesses.
[119] R v Baden-Clay [65].
For these reasons, ground 4 of Jacob's appeal is made out.
Conclusion on Jacob's appeal
For the above reasons, we would uphold Jacob's appeal, set aside his conviction and enter a judgment of acquittal.
We turn to Justin's appeal.
Justin's appeal
Summary
In their terms, Justin's three grounds of appeal are identical to Jacob's grounds 1 - 3. Justin's submissions invited like analysis and conclusions in the two appeals. As we will explain, we would uphold grounds 2 and 3 of Justin's appeal substantially for the reasons concerning those grounds of Jacob's appeal. However, as will be seen, because unlike Jacob, Justin was present throughout the prolonged attack said to constitute the 'act', we resolve Justin's ground 1 differently from its resolution in Jacob's appeal. We upheld ground 1 of Jacob's appeal on two bases. Neither basis seems to us to apply to Justin's appeal.
Ground 1
The first basis for upholding ground 1 of Jacob's appeal was that the judge's direction invited or permitted the jury to reason to guilt in an impermissible manner by identifying a pathway to a conclusion that the three accused brothers were acting together that was, in the circumstances of this case, unavailable and impermissible. In Jacob's appeal, we concluded that it was essential for the prosecution to prove that, before the attack was commenced there was a plan or a shared understanding (whether explicit or tacit) between the three brothers that they would together physically attack the complainant. The same is not true, in our view, of the prosecution case against Justin. The fact that Jacob was not there when Justin commenced the attack, thereby doing acts that were part of the 'act', was central to why we so concluded; proof of a plan or understanding was necessary to establish that when Justin struck his first blow(s) the brothers were acting in concert so as to render Jacob liable for the striking of the blow(s), done in his absence, forming part of the charged 'act'. That difficulty does not arise in relation to Justin, who initiated, and was present throughout, the attack. There is no obstacle in principle to a prosecution case that, after Justin had commenced his attack on the complainant Logan joined him in the attack - whereupon the two were acting together - and then Jacob joined them in the attack, whereupon the three were acting together. In the case against Justin, it was sufficient for the prosecution to establish that, by the time each of Justin's brothers struck a blow that was part of the 'act', the brother and Justin were acting jointly. Thus, the second pathway did not invite impermissible reasoning in the case against Justin.
The fact that Justin was charged jointly with Logan and Jacob does not undermine this conclusion. There is no impediment to charging A and B jointly in circumstances where, on the prosecution case, there are two alternative bases for A's liability, only one of which results in liability on the part of B.
The second basis for upholding ground 1 of Jacob's appeal was our conclusion that the directions as a whole created a real risk that the jury would think that whether the accused men were acting together was determined solely by whether each accused had the knowledge or belief identified by the judge, when such knowledge or belief was insufficient to sustain a conclusion of acting together. For the reasons that follow, we would not draw a like conclusion in Justin's appeal.
In directing the jury as to the requirement of acting together as it applied to Justin, the judge said that the State must prove beyond reasonable doubt that Justin commenced a physical attack on the complainant and 'knew that Logan and Jacob had joined in that attack'.[120] Question 5 on the question trail for Justin was in the following terms:
5.Has the State proven beyond reasonable doubt that Justin Sam O'Leary was acting together with Logan Francis O'Leary and Jacob Rex O'Leary? That is has the State proven beyond reasonable doubt that Justin Sam O'Leary commenced the physical attack on [the complainant], and knew that Logan Francis O'Leary and Jacob Rex O'Leary did join in that attack?
If 'no', the verdict is not guilty.
If 'yes'[,] proceed to question 6.
[120] ts 1402.
The terms of these oral and written directions are materially different from the directions concerning Jacob.
First, there is, of course, a temporal difference arising from the fact that Justin commenced the attack and Jacob was the last to arrive at the scene of the attack. The directions concerning Jacob were therefore future‑focused, directing attention to what others would do. The directions relating to Justin directed attention to what others had done.
But there is a second, more important difference in the terms in which the respective directions are expressed. A central flaw in the direction relating to Jacob was its sole focus on Jacob's belief as to what other persons - namely Justin and Logan - would do, without any need for Jacob to manifest an intention to cooperate in the attack. The direction thereby failed to accommodate and reflect the need for mutuality to reach a conclusion of acting together.
By contrast, the direction on Justin's case was consistent with the need for mutuality. It required the jury to determine whether Justin had commenced an attack and whether he knew that the others had 'joined in' that attack. The reference to 'that attack' is to the attack which Justin had commenced. The reference to 'join[ing] in' the attack is significant. The direction thus required the jury to find that (i) the others joined in the attack, and (ii) Justin knew that they had done so. By joining in the attack, the others had manifested their intention to act together with Justin in the attack on the complainant. In continuing his attack in these circumstances, Justin manifested his intention to act together with his brothers in the attack on the complainant. While this last step was not the subject of explicit direction, in the circumstances of this case it seems to us so obvious and inevitable, once the questions posed by the judge were answered favourably to the prosecution, that its absence does not render the direction erroneous or give rise to a miscarriage of justice. In this manner, the direction applicable to Justin adequately explained what was required in order for the prosecution to establish the 'acting together' requirement in the case against Justin.
For these reasons, ground 1 of Justin's appeal is not made out.
Ground 2
For the reasons given in Jacob's appeal, ground 2 is made out in Justin's appeal. The direction required the jury to consider whether the prosecution had proved that Justin did those of the individual acts actually done by him - 'their part of the acts which make up the act' ‑ with the required intent. As explained in [98] above, the prosecution was required to prove that the required intent accompanied the doing of all of the acts which together comprise the conduct element - the 'act' for the purposes of s 304(2) - regardless of who did those acts. Consequently, the judge misdirected the jury on an essential element of the prosecution case. Ground 2 of Justin's appeal is made out.
Ground 3
The reasons for upholding ground 3 of Jacob's appeal apply equally to ground 3 of Justin's appeal. As explained by the trial judge, the State case against Justin, like its case against Jacob, had two alternative pathways to a conclusion that the three brothers were acting together. The evidence that Rex said to Logan 'go and get your brother' was relevant to the first pathway - that an agreement or understanding was reached before Justin went outside - in the manner and for the reasons explained in [121] above. Ground 3 of Justin's appeal has been established.
Should a retrial be ordered?
The principles relevant to the court's discretionary power under s 30(5) of the Criminal Appeals Act2004 (WA) to order a retrial or to enter a judgement of acquittal are well known and have been outlined in this court many times. See, for example, Wark v The State of Western Australia.[121] In all the circumstances of this case, we would order a retrial notwithstanding that Justin has served a substantial period of time in custody.[122] In that regard, the most material considerations are as follows.
[121] Wark v The State of Western Australia [2020] WASCA 19; (2020) 284 A Crim R 449 [511] - [517].
[122] Justin's term of imprisonment of 2 years 3 months was ordered to be taken to have commenced on 5 January 2021. He was granted bail by this court on 7 December 2021.
First, there is a public interest in the due prosecution and conviction of offenders and it is desirable, if possible, for the guilt or innocence of an accused to be finally determined by a jury or other fact‑finding tribunal. Secondly, the miscarriage of justice in Justin's trial occurred as a result of errors of law in the trial judge's direction to the jury. While the prosecutor did not raise any concerns as to those aspects of the judge's direction, the manner in which the prosecutor ran the State case did not cause the errors in the direction. Thirdly, the admissible evidence adduced at trial is sufficiently cogent to support a conviction on the offence charged against Justin. Fourthly, in our view the circumstances do not render it unjust to Justin to require him to stand trial again.
Conclusion
For the above reasons, we would allow both appeals.
In Jacob's appeal, we would order that:
(1)leave to appeal on each of grounds 1 to 4 is granted;
(2)the appeal is upheld; and
(3)the judgment of conviction is set aside and a judgment of acquittal is substituted.
In Justin's appeal, we would order that:
(1)leave to appeal on each of grounds 1 to 3 is granted;
(2)the appeal is upheld;
(3)the judgment of conviction is set aside; and
(4)there be a retrial.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BM
Associate to the Honourable Justice Beech
14 JANUARY 2022
2
21
0