QUESTION OF LAW RESERVED NO. 1 OF 2022
[2023] SASCA 109
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
QUESTION OF LAW RESERVED NO. 1 OF 2022
[2023] SASCA 109
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Doyle)
12 October 2023
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS - CASE STATED AND RESERVATION OF QUESTION OF LAW
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - MISDIRECTION
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY
The respondent was charged with the murder of Nigel Thomas Lawrie. The cause of death was a single stab wound inflicted by the respondent at one of two locations during an altercation.
The Primary Judge gave an extended unanimity direction to the jury. Namely, to find the respondent guilty the jury had to be satisfied beyond reasonable doubt of the precise location where the stabbing occurred, failing which they could not convict.
The jury found the respondent not guilty of murder and the alternative charge of manslaughter.
Three questions were reserved to the Court of Appeal. Questions One and Two ask whether it was correct for the Primary Judge to give the extended unanimity direction. Question Three asks whether it was consistent with the prosecutorial duty to conduct a case fairly to change the prosecution position after the close of evidence.
Held (the Court) as to the answers to the questions of law reserved:
1. No.
2. No.
3. Not answered.
Criminal Law Consolidation Act 1935 (SA) s 140; Criminal Procedure Act 1921 (SA) ss 151, 153, 155; Juries Act 1927 (SA) s 57; Statutes Amendment (Criminal Procedure) Act 2005 (SA) s 153, referred to.
Australian National Railways Commission v Beesley (1999) 73 SASR 414; Chapman v The Queen (2013) 232 A Crim R 500; Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (2020) 275 FCR 342; Dookheea v The Queen [2016] VSCA 67; Fermanis v Western Australia (2007) 33 WAR 434; KBT v The Queen (1997) 191 CLR 417; Lane v The Queen (2018) 265 CLR 196; Lane v The Queen [2017] NSWCCA 46; McCarthy v The Queen (2015) 124 SASR 190; Mack v The Commissioner of Stamp Duties (NSW) (1920) 28 CLR 373; Magnus v The Queen (2013) 41 VR 612; Meyers v The Queen (1997) 147 ALR 440; Pratten v R [2014] NSWCCA 117; R v Boreman [2000] 1 All ER 307; R v Clarke and Johnstone [1986] VR 643; R v Cramp (1999) 110 A Crim R 198; R v Dally (2000) 115 A Crim R 582; R v Garner; R v Webb [2021] SASCA 68; R v Klamo (2008) 18 VR 644; R v Heaney (2009) 22 VR 164; R v Koko [2022] QCA 216; R v Leivers and Ballinger [1999] 1 Qd R 649; R v McCarthy (2015) 124 SASR 190; R v Marshall [2023] SASCA 105; R v Moffatt (2002) 112 A Crim R 201; R v More (1988) 86 Cr App R 234; R v Pacitti [2022] SASCA 108; R v PL (2009) 199 A Crim R 199; R v Puckeridge (1999) 74 ALJR 373; R v Rigby (1956) 100 CLR 146; R v Smith [1997] 1 Cr App R 14; R v Walsh (2002) 131 A Crim R 299; Rapson v WorkCover Corporation (2007) 98 SASR 86; Ribbon v The Queen (2019) 134 SASR 328; Royall v The Queen (1991) 172 CLR 378; Sadler v The King [2023] SASCA 63; Southern Adelaide Health Service Inc v C; Case Stated on Acquittal (No 1 of 2006) (2007) 97 SASR 556; The Queen v PL (2009) 261 ALR 365; Wilson v The Queen [2016] VSCA 62; Zandipour v The Queen (2017) VR 257, considered.
QUESTION OF LAW RESERVED NO. 1 OF 2022
[2023] SASCA 109Court of Appeal – Criminal: Livesey P, Lovell and Doyle JJA
LIVESEY P:
Introduction
This case is concerned with whether the trial judge should have given the jury an “extended unanimity” direction in the respondent’s trial on a charge of murder concerning the deceased, Nigel Thomas Lawrie.[1]
[1] The respondent was convicted on a charge of aggravated causing harm with intent to cause harm to Danielle Smith.
The respondent was acquitted of the murder charge. Relying on the power to reserve questions under s 153(4) of the Criminal Procedure Act 1921 (SA) (CPA), the Director of Public Prosecutions (SA) (the Director) reserved the questions set out in the reasons of Lovell JA, submitting that the “extended unanimity” direction was not required.
The right invoked by the Director under s 153(4) of the CPA requires that the court before which a person has been tried and acquitted must, on an application by the Attorney-General or the Director of Public Prosecutions, reserve a question antecedent to the trial, or arising in the course of the trial, for consideration and determination by the Court of Appeal.[2] This Court must determine the questions of law reserved and not any questions of fact.[3] By s 155(2)(c) of the CPA, no determination or order made following a trial by jury can invalidate or otherwise affect the acquittal.[4]
[2] By s 151 of the Criminal Procedure Act 1921 (SA) the term “issue antecedent to trial” is defined as a question as to whether proceedings on an information, or a count on an information, “should be stayed on the ground that the proceedings are an abuse of process of the court”.
[3] See, in addition to the cases cited by Lovell JA, being Southern AdelaideHealth Service Inc v C; Case Stated on Acquittal (No 1 of 2006) (2007) 97 SASR 556, [74] (Debelle J, with whom Anderson J agreed); Rapson v WorkCover Corporation (2007) 98 SASR 86, [14] (White J, with whom Duggan and Kelly JJ agreed); Mack v The Commissioner of Stamp Duties (NSW) (1920) 28 CLR 373, 381 (Isaacs J); R v Rigby (1956) 100 CLR 146, 151 (Dixon CJ, McTiernan, Webb, Kitto and Taylor JJ); Australian National Railways Commission v Beesley (1999) 73 SASR 414, 420-421 (Lander J).
[4] The procedure to be adopted is governed by s 154 and the orders that may be made are governed by s 155 of the Criminal Procedure Act 1921 (SA), R v Marshall [2023] SASCA 105, [44]-[50]. But see R v Garner; R v Webb [2021] SASCA 68 and R v Pacitti [2022] SASCA 108 where re-trials were ordered following acquittals after a trial by judge alone, under s 157(1)(b)(i) of the CPA.
In overview – no direction as to extended unanimity required
I gratefully adopt the detailed statement of the facts set out in the reasons of Lovell JA and will repeat those only in so far as it is necessary to explain my reasons. I agree, for the reasons given by Lovell JA, that it is appropriate to answer questions 1 and 2, but not necessary to answer question 3.
In my opinion, it was not necessary to give a direction that the jury agree on whether the fatal stabbing wound occurred in the garden and driveway, or on the roadway.
Whether an extended unanimity direction is required must be determined in a practical rather than technical way. The determination commences with the identification of the offence charged and the offending alleged. It extends to the way the case for the prosecution is left to the jury and whether there are two or more ways of identifying an essential element of the offending (often but not always the actus reus) or, by contrast, merely two or more evidential pathways to proof of an essential element of the offending.
The determination will involve an evaluation of the live issues remaining for decision at the close of the evidence, including whether they involve materially different issues or consequences, such as to whether there arise materially different causes of death or defences on each pathway. That may call for the exercise of a fine judgment, involving questions of both fact and degree.
Where the facts and presentation of the prosecution case suggest different evidentiary pathways, but not materially different issues and consequences in connection with the determination of guilt, cases such as Royall v The Queen,[5] R v PL,[6] R v McCarthy,[7] and Zandipour v The Queen,[8] suggest that unanimity about those pathways in proof of an essential element of the offence is not required, particularly if the offending can be characterised as involving one transaction. By contrast, cases such as R v Klamo[9] suggest that where the prosecution case relies on two or more distinct incidents, each representing a different way of identifying an essential element of the offending, the jury must be agreed about what comprised the essential element.
[5] Royall v The Queen (1991) 172 CLR 378, 404-405 (Brennan J). See also KBT v The Queen (1997) 191 CLR 417, 422-423, 436-437 (Brennan CJ, Toohey, Gaudron and Gummow JJ); R v Leiversand Ballinger [1999] 1 Qd R 649, 658 (Fitzgerald P and Moynihan J).
[6] R v PL (2009) 199 A Crim R 199, [47]-[49] (Spigelman CJ, with whom McClellan CJ at CL and RA Hulme J agreed)). See also R v Puckeridge (1999) 74 ALJR 373; R v Moffatt (2002) 112 A Crim R 201.
[7] McCarthy v The Queen (2015) 124 SASR 190 (Peek J).
[8] Zandipour v The Queen (2017) 53 VR 256 (Zandipour) (Warren CJ, Weinberg and Kaye JJA).
[9] R v Klamo (2008) 18 VR 644, [75] (Maxwell P, with whom Vincent and Neave JJA agreed).
The offending in this case was alleged to have occurred in the course of an ongoing altercation involving one fatal stab wound. There was only one cause of death. If the jury determined that it was the respondent who inflicted the fatal wound, any uncertainty as to where and when that occurred was of little moment. Unlike Lane v The Queen,[10] though the two potential locations were in this case both close in distance and separated by a short period of time, there were no materially different issues and consequences depending on where and when the fatal stabbing occurred. Like Zandipour, any differences in the defence contentions based on the different locations were immaterial.
[10] Lane v The Queen (2018) 265 CLR 196.
An extended unanimity direction was therefore not required.
The requirement for an extended unanimity direction
As it was contended that the evidence in this case revealed more than one pathway to proof of guilt, the question for the trial judge was whether it was necessary to direct the jury that they need be unanimous as to both the verdict and the particular pathway by which that verdict was reached.
The respondent and the deceased were involved in an altercation that moved from the garden and driveway onto the roadway in front of a house in Elizabeth Grove, north of Adelaide. It was contended by the defence that the respondent was acting in self-defence or in defence of his property and another. The deceased was killed as the result of the infliction of one stab wound to the back, which pierced his lung. The evidence showed that it was the respondent who was wielding a knife during the altercation. Evidence from CCTV footage and witnesses was inconclusive as to precisely where and when the stab wound was inflicted. It could have been in the garden and driveway or it could have been on the roadway.
In this case it was submitted that the different pathways to guilt were represented by whether the fatal stabbing wound was inflicted in the driveway and garden or on the roadway. Before the trial, the prosecution refused to elect as to where the fatal wound was inflicted, and the trial judge refused to permanently stay the prosecution in the absence of an election. In opening, the prosecution submitted that the fatal wound was possibly inflicted in the driveway but most likely inflicted moments later, off camera.
Although the defence sought an extended unanimity direction, that was opposed by the prosecution on the basis that there was only one wound and the events, whether in the garden and driveway or on the roadway, represented one continuous incident. Ultimately the trial judge gave an extended unanimity direction, for the reasons and in the terms set out in the reasons of Lovell JA. Effectively the jury had to be agreed about whether the stabbing occurred in the garden and driveway or on the roadway, failing which they could not convict.
The two questions before this Court reflect the directions given by the trial judge as to murder (Question 1) and as to manslaughter (Question 2).
In many of the cases reference is made to whether the “live issues” apparent at the end of the evidence require a unanimity direction. The reference to “live issues” is usually traced back to R v More, where Lord Ackner explained that whether a direction for unanimity is required depends “essentially upon the precise nature of the charge, the nature of the prosecution’s case and the defence and what are the live issues at the conclusion of the evidence”.[11]
[11] R v More (1988) 86 Cr App R 234, 252 (Lord Ackner)
In a passage which has been cited many times, the Victorian Court of Appeal in R v Walsh later drew a distinction between two kinds of case.[12] The first was “exemplified by the cases concerning murder and manslaughter”, where “alternative legal bases of guilt are proposed by the Crown but depend substantially upon the same facts”.[13] In that kind of case, no unanimity direction is required about one or more of those bases, at least where they do not “involve materially different issues or consequences”.[14] As the Court of Appeal explained regarding this first kind of case:[15]
The clearest example of the jury's being permitted in such cases to arrive at the result by different routes is to be found where the Crown puts its case in the alternative, being unable to choose between them. It may be alleged that the victim was killed by the accused either personally or by an aide, the evidence leaving it unclear which, and in such a case it is enough if the jury agree that it was one or the other; beyond that, agreement is not required.
That has been so, it seems,[16] since Swindall v. Osborne[17] in which the victim was killed by one of two carts, the driver of one inciting the driver of the other to kill the deceased. The conviction of one driver was upheld because, if he was not the principal, he was an accessory, having incited the other. See also, on murder and manslaughter, R v White,[18] R v Giannetto[19] (drawing on R v Thatcher[20]), R v Serratore[21] and R v Leivers and Ballinger.[22]
[12] R v Walsh (2002) 131 A Crim R 299, [57] (Phillips and Buchanan JJA, with whom Ormiston J agreed), following an extensive review of the authorities.
[13] R v Walsh (2002) 131 A Crim R 299, [57] (Phillips and Buchanan JJA, with whom Ormiston JA agreed). The Court referred, amongst many others, to R v Clarke and Johnstone [1986] VR 643, 661 (Crockett, McGarvie and Southwell JJ) and R v Dally (2000) 115 A Crim R 582, 591 (Smart AJ, with whom Sully J and Carruthers AJ agreed).
[14] R v Leivers and Ballinger [1999] 1 Qd R 649, 662 (Fitzgerald P and Moynihan JA), referring to the reasons of Lamer J in Thatcher v The Queen (1987) 39 D.L.R. (4th) 275, see also R v Walsh (2002) 131 A Crim R 299, [44]‑[48], [57] (Phillips and Buchanan JJA, with whom Ormiston J agreed).
[15] R v Walsh (2002) 131 A Crim R 299, [45]-[46] (Phillips and Buchanan JJA, with whom Ormiston J agreed).
[16] R v Cramp (1999) 110 A Crim R 198, 207 (Barr J, with whom Sully and Ireland JJ agreed).
[17] (1864) 2 Car & K 230.
[18] (1989) 41 A Crim R 237.
[19] [1997] 1 Cr App R 1.
[20] (1987) 39 DLR (4th) 275.
[21] (1999) 48 NSWLR 101.
[22] [1999] 1 Qd R 649.
The Court gave as an example of this first kind of case R v Cramp, where the accused was found guilty of manslaughter after plying a teenage girl with alcohol and then, over some hours, urging her to drive his car at speed.[23] The case went to the jury on the basis that death resulted from either or both the accused’s unlawful and dangerous act, or from his gross negligence. No direction was given that the jury had to be unanimous about the relevant basis for a finding of guilt.
[23] R v Cramp (1999) 110 A Crim R 198.
The conviction in R v Cramp was upheld by the Court of Criminal Appeal of New South Wales because the jury had to consider the whole of the accused’s conduct in deciding whether he caused the death by his unlawful and dangerous act or by his gross negligence. Whilst the jury’s process of reasoning was different, each basis rested on substantially the same facts and the difference was only as to “the legal formulation of liability”, where those alternative bases “did not involve materially different issues or consequences”.[24]
[24] R v Cramp (1999) 110 A Crim R 198, 207 (Barr J, with whom Sully and Ireland JJ agreed), citing R vLeivers (1998) 101 A Crim R 175, 188 (Fitzgerald P and Moynihan J).
The second kind of case described by the Court of Appeal in R v Walsh concerned the charging of one offence where a number of discrete acts is relied upon as proof, but where proof of any one of them would entitle the jury to convict. If those discrete acts go to the proof of an essential ingredient or element of the crime charged, the jury cannot convict unless they are agreed about the act which constitutes the essential element. That is, the jury must be unanimous about the factual basis of an essential element of a charge where the evidence suggests alternative possible factual bases.[25] Within this second kind of case the Court of Appeal in R v Walsh drew a distinction between cases where what is in issue is an essential element of the charge, or merely an available evidential pathway to proof of the essential element:[26]
When the charge is obtaining property by deception by means of misrepresentation, the making of the misrepresentation has been regarded as an essential ingredient of the crime charged. It is otherwise, however, where the crime is conspiracy to defraud and the means agreed upon by the conspirators to achieve that end is the making dishonestly of false representations. The agreement to make any particular representation is not regarded as an essential element of the crime, but merely a path to arriving at the objective of the conspirators, namely, obtaining an advantage by fraud.
[25] This proposition was described by Fagan J in Lane v The Queen [2017] NSWCCA 46, [136], as “well‑established”, citing R v Smith [1997] 1 Cr App R 14; R v Boreman [2000] 1 All ER 307; R v Walsh (2002) 131 A Crim R 299; Pratten v R [2014] NSWCCA 117.
[26] R v Walsh (2002) 131 A Crim R 299, [57] (Phillips and Buchanan JJA, with whom Ormiston J agreed). See, more recently, Fermanis v Western Australia (2007) 33 WAR 434, [61] (Steytler P, with whom Roberts-Smith and McLure JJA agreed).
An example of this second kind of case is provided by the English case of R v Smith, which concerned a charge of affray. In that case there was conduct inside and outside a house. The jury was not directed that they had to be satisfied that the evidence, either inside the house or outside the house, constituted the offence of affray. This left open the possibility that some of the jury may have found the offence proved by what happened inside the house, but some may have found the offence proved by what happened outside the house. In that event the jury as a whole would not have been satisfied that an affray was committed on either basis. The Court of Appeal held that this involved a misdirection:[27]
[Affray] typically involves … a continuous course of conduct, the criminal character of which depends on the general nature and effect of the conduct as a whole and not on particular incidents and events which may take place in the course of it. Where reliance is placed on such a continuous course of conduct it is not necessary for the Crown to identify and prove particular incidents. ... It would be asking the impossible to require a jury of 12 men and women to be satisfied beyond reasonable doubt that each or any incident in an indiscriminate mêlée such as constitutes the typical affray was proved to the requisite standard.
Different considerations may, however, arise where the conduct which is alleged to constitute an affray is not continuous but falls into separate sequences. The character of the conduct relied on in each sequence may in such a case be quite different and so may the effect on persons who are (or might hypothetically be) present at the scene. The possibility then arises that half the jury may be persuaded that the first sequence amounted to an affray and the second did not, and the other half of the jury may be persuaded that the second sequence amounted to an affray and the first did not. The result would then be that there was no unanimous jury verdict in support of conviction based on either sequence.
[27] R v Smith [1997] 1 Cr App R 14, 17 (Birmingham LCJ).
Another example of a case coming within the second kind of case described in R v Walsh is provided by R v Klamo, a manslaughter case involving two incidents which separately or in combination might have accounted for death, albeit one or two weeks apart.[28] The accused in R v Klamo was convicted of the manslaughter of his four-week-old son. Death was caused by a subdural haemorrhage which occurred in the 24 hours before death. The pathology evidence was that the haemorrhage may have been caused by indirect trauma such as shaking. The accused had admitted to police that he had shaken his son one or two weeks before he died. The prosecution case left to the jury was that death may have been caused by a spontaneous re-bleed from a subdural haemorrhage caused by the shaking one to two weeks earlier, or the accused may have shaken his son on the morning of his death.
[28] R v Klamo (2008) 18 VR 644, [8] (Maxwell P, with whom Vincent and Neave JJA agreed on this issue).
The Court of Appeal in Klamo held that the trial judge should have given a unanimity direction because the jury could not convict without being agreed as to the actus reus. That is, as to which act by the accused constituted the crime:[29]
Although the presentment charged only that the applicant had killed the child, the case against him was that he was guilty of manslaughter by dangerous and unlawful act. Proof of an act having both those characteristics was essential to conviction. The prosecution relied on – and the judge left to the jury – two ‘discrete acts’, some days apart, each of which was said to be capable of constituting the crime charged. On the authority of Walsh – and the cases on which the analysis was based – the jury could not convict unless they were ‘agreed upon that act which, in their opinion, does constitute’ the crime.
[29] R v Klamo (2008) 18 VR 644, [76] (Maxwell P, with whom Vincent and Neave JJA agreed).
This passage was obiter, expressed without detailed reasoning. Unlike this case, the question of extended unanimity was not agitated at the trial and did not emerge until the permission hearing before the Court of Appeal.[30]
[30] R v Klamo (2008) 18 VR 644, [2]-[3], [77] (Maxwell P, with whom Vincent and Neave JJA agreed).
In fact, the Court in Klamo found that the verdict was unreasonable and the accused was acquitted. In part this was because the pathology evidence from Professor Cordner was “essentially, negative” and did not permit the drawing of inferences to the requisite standard. The evidence of Professor Cordner was largely unchallenged and to the effect that none of the three possible causes of the death of child were likely, though he could not rule them out:[31]
·Professor Cordner was satisfied that the cause of death was not a spontaneous re-bleed;
·there were none of the usual signs (bruising or retinal haemorrhages) to make shaking “a real possibility”; and
·there was no bruising to indicate blunt trauma.
[31] R v Klamo (2008) 18 VR 644, [41]-[42] (Maxwell P, with whom Vincent agreed), [88]-[96] (Neave JA).
President Maxwell criticised the direction to the jury that it was their task to determine the cause of the fatal subdural haemorrhage because the jury was not conducting an inquest into the cause of death, nor was it confined to one of the three possibilities identified on the evidence of Professor Cordner.[32] Klamo should be seen as a case where extended unanimity was necessary because the prosecution relied on two different acts, each of which was capable of causing death and comprising the essential physical element or actus reus of the crime charged.
[32] R v Klamo (2008) 18 VR 644, [70] (Maxwell P, with whom Vincent and Neave JJA agreed), “The jury’s function was not to find the cause of death but to decide whether they were satisfied beyond reasonable doubt that the applicant had caused the death by an unlawful and dangerous act. Had it been necessary to do so, I would have concluded that this misdirection had, in the context of the medical evidence which had been led, produced a miscarriage of justice.”
In R v McCarthy,[33] a case of murder involving either or both of striking and asphyxiation, the majority held that an extended unanimity direction was not required.[34] Justice Peek reviewed in some detail what he described as “the rise of extended jury unanimity” since 1988.[35] His Honour postulated three doctrines concerning alternate bases of liability, as follows:[36]
[33] R v McCarthy (2015) 124 SASR 190.
[34] R v McCarthy (2015) 124 SASR 190, [314], [323] (Peek J), [124] (Gray J), [10] (Kourakis CJ not deciding).
[35] R v McCarthy (2015) 124 SASR 190, [230] ff (Peek J).
[36] R v McCarthy (2015) 124 SASR 190, [225]-[228] (Peek J).
Three doctrines of alternate bases of liability
When one moves to cases decided in the context of the law of homicide, one faces, at least in South Australia, a common law offence with a long, unique history and with complex origins and development of its various elements and defences.[37] However, without dwelling too much on such matters, it is possible to say that the common law has now evolved to the position where there may be said to be three doctrines of alternate bases of liability. These doctrines are considered in further detail below but may be summarised as follows.
The first doctrine is that of alternate party bases of liability. This refers to a situation where the factual basis is relatively stable and a question arises as to the extent to which the accused can be convicted on different party bases on a common substratum of fact. In common law terms, such different degrees of party liability might be referred to as accessory before the fact or principal in the first, second or third degree. Examples of a form of this alternate party bases of liability doctrine may be found as early as the decision in R v Swindall and Osborne,[38] and probably earlier. In Swindall, the victim was killed by one of two carts (it was unknown which), the driver of each encouraging the other to drive dangerously. It was held that since the accused was one of the two drivers, and had the required mens rea for manslaughter, it was unnecessary for a jury to be satisfied whether the accused was the primary actor or the person encouraging the primary actor. The jury were directed that either driver (or both) could be convicted of manslaughter, even though it were unknown which cart hit the victim, because if a particular accused was not the principal actor, then he was an accessory encouraging the other driver.
The second doctrine is that of alternate legal bases of liability, a situation where the factual basis is again relatively stable and the question arises as to the extent to which the accused can be convicted on different legal bases on a common substratum of fact. This second doctrine is broader than the first in that it includes different party bases but also includes different legal conclusions such as different routes to a verdict of manslaughter[39] or different routes to a verdict of murder.[40]
The third doctrine is that of alternate factual bases of liability, a situation where the party or legal basis is relatively stable[41] but a question arises as to the extent to which the accused can be convicted on different factual bases available on the evidence in the case.
(Bold emphasis added.)
[37] While some aspects have been abolished or modified in South Australia, much of its traditional common law content remains. Any precise review of the development of the law of homicide would have to include consideration of the development and changes in criminal procedure including such matters as the felony/misdemeanour distinctions, common law procedure and the impact of local legislation upon these matters.
[38] (1846) 3 Car & Kir 230; 175 ER 95.
[39] A jury may have to consider whether the same facts with little variation may give rise to a verdict of manslaughter on the bases of either provocation, unlawful and dangerous act or gross negligence.
[40] A jury may have to consider whether the same facts with little variation may give rise to a verdict of murder on the bases of either: an intention to kill; an intention to inflict grievous bodily harm; recklessness as to either of the previous two; or via a felony murder type rule or statutory provision.
[41] For example, where the only liability suggested is that of principal in the first degree.
Justice Peek concluded that the prosecution case concerned one continuous process of assault. There were no issues as to alternate parties or legal bases of liability. In the case of the alternate factual bases, he explained that if all of the accused’s alternative acts relied upon by the prosecution, having regard to their time, place or nature, could be considered as “relating to one transaction”, extended jury unanimity would not generally be required.[42]
[42] R v McCarthy (2015) 124 SASR 190, [225]-[228], [306] (Peek J).
Chief Justice Kourakis emphasised that it would be necessary to consider whether the two postulated cases were mutually destructive, whereas Gray J emphasised that both the striking and the asphyxiation occurred in the course of one assault.[43]
[43] R v McCarthy (2015) 124 SASR 190, [5] Kourakis CJ, [121]-[122] (Gray J). See also [314]-[322] (Peek J).
The decisions of the New South Wales Court of Criminal Appeal and the High Court in Lane v The Queen concerned a murder prosecution involving two incidents. The incidents occurred during an altercation between the accused and the deceased. The accused was convicted of manslaughter.
Lane v The Queen is a case which comes within the second kind of case described by the Court of Appeal in R v Walsh, as well as within the qualification to the first kind of case, for it is a case of murder or manslaughter where there were one or more factual bases for liability which “involve[d] materially different issues or consequences”.[44]
[44] R v Walsh (2002) 131 A Crim R 299, [47] citing Leivers and Ballinger [1999] 1 Qd R 649, 662.
The offending alleged in Lane v The Queen comprised the accused causing the deceased to fall to the ground on two occasions, striking his head. The first occasion may not have involved the accused punching the deceased, but the second certainly did. The pathology evidence was that death may have been caused by either or both head strikes on the ground. That represents a key difference between that case and this.
In Lane v The Queen the Court of Criminal Appeal held that an extended unanimity direction was required. The difference between the majority and minority in the Court of Appeal was over whether the proviso could be applied. The High Court held that the proviso could not be applied. Before applying the proviso, the majority referred with approval to R v Walsh, and held:[45]
… in the absence of [a unanimity direction] it remained possible that some jurors might reason to a verdict of guilty of murder or manslaughter by being satisfied that the appellant’s voluntary act caused the first fall while others might reason to the same conclusion by reference to his voluntary act having caused the second fall. That possibility was not excluded by the trial judge’s general direction as to unanimity … which accommodates only the circumstance that the same facts may support alternative legal bases of guilt.
[45] Lane v The Queen [2017] NSWCCA 46, [43] (Meagher JA and Davies J), having observed at [18]-[19] that R v Walsh had been cited with approval in Chapman v R (2013) 232 A Crim R 500, [28] (Adamson J, with whom Hoeben CJ at CL and Davies J agreed); Pratten v R [2014] NSWCCA 117, [45] (Meagher JA, Fullerton and Hamill JJ); Magnus v The Queen (2013) 41 VR 612, [35]-[37] (Buchanan, Ashley and Redlich JJA); Wilson v The Queen [2016] VSCA 62, [32] (Weinberg AP, Priest and Beech JJA); Fermanis v The State of Western Australia (2007) 33 WAR 434, [68]-[69], [73] (Steytler P, with whom Roberts-Smith and McLure JJ agreed).
Before declining to apply the proviso, Fagan J held that the evidence did not permit the treatment of the two occasions as “constituting a single incident comprised of multiple contacts … which need not be distinguished from each other”. That was because the “contact between the two men was not so continuous or unified as to allow the case to be presented … as one of a single, composite assault”.[46]
[46] Lane v The Queen [2017] NSWCCA 46, [111] (Fagan J).
Justice Fagan held that the case did not come within the principle that, where an accused kills another by one or other of two or more different acts, each of which was sufficient to establish murder if it caused death, it is not necessary to prove which act caused the death.[47] Rather, in the case before him:[48]
… there were in the present case very significant live issues bearing upon whether there had occurred either of the two alleged acts of the appellant (that which caused the first fall and that which caused the second). Further, there were issues as to whether either, if proved, was “a sufficient act to establish murder”. Namely, the issues of whether any act which might be found proved had been accompanied by the requisite intent and whether, if so, it had been self-defensive. Those additional issues might well be resolved with different results as between the appellant’s actions alleged to have caused the first fall and his actions alleged to have caused the second. The evidence upon which his intent (issue (2)) and any perception of a need to defend himself (issue (3)) could be inferred was entirely distinct as between the two alleged occurrences.
[47] Lane v The Queen [2017] NSWCCA 46, [140] (Fagan J), citing Attorney General’s Reference (No 4 of 1980) [1981] 1 WLR 705, 710 (Ackner LJ).
[48] Lane v The Queen [2017] NSWCCA 46, [140] (Fagan J).
These “live issues” were explained in some detail by Fagan J as follows:[49]
[49] Lane v The Queen [2017] NSWCCA 46, [134]-[135] (Fagan J).
… by the time his Honour came to sum up the following were live issues:
(1)Whether the Crown had proved beyond reasonable doubt that a voluntary act or acts of the appellant had caused either or both of the falls in which the deceased struck his head on the roadway.
(2)With respect to whichever fall (or both) the Crown had proved was caused by a voluntary act of the appellant, whether the Crown had proved the appellant intended to cause death or grievous bodily harm by the voluntary act (or acts).
(3)With respect to whichever fall (or both) the Crown had proved was caused by a voluntary act of the appellant accompanied by intent to cause either death or grievous bodily harm, whether the Crown had proved there was no reasonable possibility
(a) that the appellant acted in the belief it was necessary to defend himself or
(b) that his actions were a reasonable response to what he perceived as the need to defend himself.
(4)With respect to whichever fall (or both) the Crown had proved was caused by a voluntary act of the appellant but not accompanied by intent to cause either death or grievous bodily harm, whether the Crown had proved that the appellant’s conduct
(a) constituted an unlawful act;
(b) involved an appreciable risk of causing serious harm to the deceased and
(c) was such that a reasonable person in the position of the accused would have appreciated the risk of serious harm.
The need for unanimity on the actus reus
Each of the issues identified at (2), (3) and (4) in the previous paragraph could only be considered in relation to one or the other or both of the falls. There could not be unanimity on a verdict of guilty (of either murder or manslaughter) unless the jury were unanimous, as a starting point, as to what act the appellant had committed which was (a) causative of the deceased’s head striking the roadway and, hence, (b) causative of his death (issue (1)). ... The jury could only deliberate towards findings on the three further issues (which, again, would have to be unanimous) if they were first unanimously agreed as to what was the act of the appellant which may or may not have been accompanied by the requisite intent (issue (2)), may or may not have flowed from a perceived need for self defence (issue (3)) and may or may not have been unlawful and dangerous (in the sense necessary to sustain manslaughter by unlawful and dangerous act) (issue (4)).
In the course of addressing the proviso issue, the High Court held that an extended unanimity direction was required because the jury had to agree on the action by the appellant which caused the deceased’s fatal injury. Absent the requisite unanimity there remained uncertainty about the basis for the verdict. There remained live issues about the dangerousness of the appellant’s actions and about self-defence preceding the second fall. It was necessary that the jury be directed about “the different circumstances bearing upon these issues … in relation to each of the potentially fatal interactions between the appellant and the deceased”.[50]
[50] Lane v The Queen (2018) 265 CLR 196, [45] (Kiefel CJ, Bell, Keane and Edelman JJ) citing Lane v The Queen [2017] NSWCCA 46, [135], [142] (Fagan J).
Subsequently, in Ribbon v The Queen the Court of Criminal Appeal of South Australia determined that an extended unanimity direction was required in a drug importation case.[51] Peek J reviewed his reasons in McCarthy v The Queen in light of the High Court’s decision in Lane v The Queen. His Honour concluded that an extended unanimity direction was required:[52]
The development of the first two of these doctrines in Australia was explored in McCarthy,[53] but clearly it was the third category of alternate factual bases of liability that was involved in each of McCarthy itself and the homicide cases of Klamo and Lane and the present case of Ribbon.
In McCarthy, I was of the view that Klamo was rightly decided but was to be distinguished on the facts from McCarthy for reasons reproduced above.[54] It will be for others to say whether the factual decision in McCarthy may also be distinguished from that in Lane when considering this third category of alternate factual bases of liability. I simply note that the judgments in Lane had no need to address what I have called the first two categories of cases (alternate party bases of liability and alternate legal party bases of liability); but it is fairly safe to say that further discussion awaits.
As for the present case, in my view the facts clearly fall on the side of the line requiring an extended unanimity of verdict direction. That was apparent on the state of the authorities as they were at the time of McCarthy and is even the clearer in the light of the subsequent decisions in Lane. I have decided this case by reference to that decision and the authorities referred to therein.[55]
[51] Ribbon v The Queen (2019) 134 SASR 328, [75]-[81] (Peek J, with whom Parker J agreed).
[52] Ribbon v The Queen (2019) 134 SASR 328, [75]-[81] (Peek J, with whom Parker J agreed).
[53] (2015) 124 SASR 190, 265–272, [256]-[276].
[54] (2015) 124 SASR 190, 282–285. The position for Mr McCarthy was moot in that the appeal was allowed on another ground.
[55] I have had regard to the decisions of this Court in R v Tassone [2016] SASCFC 146 and R v Nikolic [2019] SASCFC 32 but I do not consider that they govern the outcome of the present case.
In separate reasons, Doyle J agreed and referred to the decision in R v Walsh explaining his approach in the following terms:[56]
In my view, the two categories of case referred to by Phillips and Buchanan JJA in the passage from their reasons to which I have referred raise quite different considerations. I consider that the present case falls within the second category of case identified by their Honours; that is, where one offence is charged but the prosecution relies upon more than one discrete act as independently capable of proving an essential ingredient of the charged offence.
In determining whether it is necessary to give an extended unanimity direction in that second type of case, a distinction may be drawn between cases in which the discrete acts are relied upon as independently capable of proving an essential ingredient of the crime charged, and cases in which the discrete acts are relied upon merely as facts that might be found in considering the evidence led in support of an essential ingredient. As the jury must be unanimous as to their conclusion that an essential ingredient of an offence has been established, but need not be unanimous as to the evidentiary route or pathway by which they reach that conclusion, an extended unanimity direction will be required in the former situation, but not in the latter situation.
In drawing this distinction, it will be relevant to have regard to not only the nature of the charge, but also the way the prosecution case is formulated and conducted, and the nature of the acts relied upon and the issues to which they give rise. If the offence charged, and the substance of the prosecution case, is one involving a continuous course of conduct or is reliant upon the cumulative effect of all of the evidence led in respect of the relevant ingredient, then it is unlikely that an extended unanimity direction will be required. However, where the prosecution case relies upon more than one act said to be independently sufficient to establish the relevant ingredient, and those acts are quite separate or different in nature (for example, by reason of their timing, location or circumstance, or by reason of the issues to which they give rise), then such a direction may well be required. The distinction will sometimes be a difficult one to draw, and involve questions of degree.
[56] Ribbon v The Queen (2019) 134 SASR 328, [259]-[261] (Doyle J, with whom Parker J also agreed).
Recently, and by contrast, in R v Koko the Queensland Court of Appeal rejected the need for an extended unanimity direction in a case where the accused had pleaded to manslaughter, but that plea was not accepted and the case went to trial on murder.[57] The only issue concerned the accused’s intention, for his plea demonstrated that he had unlawfully killed the deceased.
[57] R v Koko [2022] QCA 216.
The complication in that case was that it could not be determined which of a number of blows inflicted by the accused in an assault on the deceased was fatal. As to this, the jury were directed that they had to be persuaded beyond reasonable doubt that, whatever were the acts which substantially contributed to death, they were committed with the requisite intent to cause death or grievous bodily harm.
Justice Flanagan, with whom Mullins P and Dalton JA agreed, referred to Country Care v Director of Public Prosecutions (Cth),[58] before holding that the direction given that the jury be unanimous about the element of intention was sufficient.[59]
[58] Country Care v Director of Public Prosecutions (Cth) (2020) 275 FCR 342, [77]-[80].
[59] R v Koko [2022] QCA 216, [25]-[27] (Flanagan JA, with whom Mullins P and Dalton JA agreed).
A recent example of the second kind of case referred to in R v Walsh is provided by Sadler v The King,[60] where there was scope for disagreement about the evidentiary pathway that might be taken to satisfaction of an essential element of a charge. There were no alternative allegations or factual uncertainty as to the relevant essential element of the offending. The charge in that case was dishonest dealing with documents, contrary to s 140 of the Criminal Law Consolidation Act 1935 (SA), being the falsity of time books offered in proof of an aspect of a personal injury claim.[61] After referring to R v Walsh,[62] Magnus v The Queen,[63] and Ribbon v The Queen,[64] Doyle JA explained that the issue had to be addressed in a practical rather than technical manner:[65]
It is appropriate to start with the terms of s 140 of the CLCA, and the articulation of the elements of the offence created by that section set out earlier in these reasons. Importantly, the first element of that offence required the production of a document. As explained, the prosecution alleged and ran a case on the basis that the document was the time books, and not any particular entry, page or section of the time books.
The second element of that offence required establishing the falsity of that document. The prosecution case was that the time books were false by reference to the overall misleading impression created by those time books as to the hours worked by RS. Importantly, the second element required a focus upon the falsity of the document (the time books), and not the falsity of any particular entry, page or section of those books.
In my view, this analysis tends to demonstrate that the falsity of particular entries within the time books was not an essential ingredient of the s 140 offence as the case was alleged and presented. Rather, establishing the falsity of particular entries was merely the means of establishing the essential ingredient; namely, the falsity of the time books.
[60] Sadler v The King [2023] SASCA 63.
[61] Sadler v The King [2023] SASCA 63, [11]-[22] (Doyle JA, with whom Bleby JA agreed at [42]).
[62] R v Walsh (2002) 131 A Crim R 299, [57] (Phillips and Buchanan JJA, with whom Ormiston JA agreed). His Honour pointed out that this passage had been followed many times, in Lane v The Queen (2018) 265 CLR 196, [45] (Kiefel CJ, Bell, Keane and Edelman JJ), as well as in Fermanis v Western Australia (2007) 33 WAR 434, [61] (Steytler P, with whom Roberts-Smith and McLure JJA agreed); R v Klamo (2008) 18 VR 644, [75] (Maxwell P, with whom Vincent and Neave JJA agreed); Magnus v R (2013) 41 VR 612, [32] (Buchanan, Ashley and Redlich JJA); R v McCarthy (2015) 124 SASR 190, [117] (Gray J), [282] (Peek J); Lane v The Queen [2017] NSWCCA 46, [18] (Meagher JA and Davies J); Ribbon v The Queen (2019) 134 SASR 328, [65] (Peek J, with whom Parker J agreed), [258] (Doyle J, with whom Parker J agreed); Country Care GroupPty Ltd v Commonwealth Director of Public Prosecutions(Cth) (2020) 275 FCR 342, [79] (Allsop CJ, Wigney and Abraham JJ).
[63] Magnus v The Queen (2013) 41 VR 612.
[64] Ribbon v The Queen (2019) 134 SASR 328.
[65] Sadler v The King [2023] SASCA 63, [17]-[19] (Doyle JA, with whom Bleby JA agreed at [42]).
The Court determined, by a majority, that an extended unanimity direction was not required.
Determination as to the unanimity direction in this case
I need not repeat the conclusions expressed at the outset of my reasons. Acknowledging the difficulties in this case, it is closer to the first category rather than the second category of case described in R v Walsh. I gratefully refer to, without repeating, the analysis by Lovell JA of the live issues in this case which were left for decision by the close of the evidence, particularly as to the way in which the jury could have been directed, as well as the analysis by Doyle JA of the distinguishing features in cases such as Klamo and Lane v The Queen.
The relevant determination is here governed by the fact that there was only one relevant stabbing, and only one cause of death, with the result that there could be no relevant uncertainty in the prosecution case presented to the jury for verdict. This therefore is a case like those involving one transaction, where it would have been sufficient for the jury to be agreed about whether the respondent was the offender who wielded the knife with the intention of causing death or really serious harm at either location.
The difficulty in this case is produced primarily by the potential defences arrayed in answer to the prosecution case at each location. However, on the facts of this case, those defences were broadly common to both locations, separated as they were by a few metres and a short period of time. It may well be otherwise in cases where the potential basis for the verdict on the essential elements of the offending is both uncertain and complicated by materially different issues or consequences arising on the different pathways to proof of guilt, with the result that the case cannot properly be characterised as involving one transaction.
Conclusion
I would answer the questions stated for determination as follows:
1.No.
2.No.
3.Not answered.
LOVELL JA: Hadyn John Sansbury (‘the respondent’) was tried before a jury on the charges of murdering Nigel Thomas Lawrie (‘the deceased’) (‘Count 1’) and aggravated causing harm to Danielle Smith with intent to cause harm (‘Count 2’). The respondent was found not guilty of Count 1 including the alternative charge of manslaughter. He was found guilty of Count 2.
The Primary Judge, on the application of the Director of Public Prosecutions (‘the applicant’), reserved two questions on issues that arose in the course of the trial for consideration and determination by the Court of Appeal. The respondent applied to the Primary Judge to reserve a further question.
The source of all three questions related to the extended unanimity direction given by the Primary Judge. The applicant submitted that on the facts of the case such a direction was unnecessary.
Questions reserved
Section 153(4) of the Criminal Procedure Act 1921 (SA) (‘the CPA’) relevantly provides that a Court before which a person has been tried and acquitted of an offence must, on application by the Director of Public Prosecutions, reserve questions arising in the course of the trial for consideration and determination by the Court of Appeal. Section 155(2)(c) of the CPA provides that if the accused has been acquitted at trial, no determination or order of the Court of Appeal can invalidate or otherwise affect the acquittal.
Extended jury unanimity requires that, in finding an accused guilty, the jury is unanimous not only as to its ultimate verdict but also unanimous as to the route or pathway by which that verdict was reached.
The Primary Judge reserved the following questions for consideration and determination by the Court of Appeal:
1.On the evidence, and as a matter of law, was I right, in directing the jury on the first element of the offence of murder, to direct that it was necessary that the jury be unanimously agreed as to which of the two possible locations at which the single stab wound causing death could have been inflicted, was inflicted, and who inflicted the injury before the jury could proceed to consider the other elements of the offence of murder?
2.On the evidence, and as a matter of law, was I right, in directing the jury on the first element of the offence of manslaughter, to direct that it was necessary that the jury be unanimously agreed as to which of the two possible locations at which the single stab wound causing death could have been inflicted, was inflicted, and who inflicted the injury before the jury could proceed to consider the other elements of the offence of manslaughter (noting that I did not make clear that unanimity of the majority was required after four hours)?
3.Is it consistent with the prosecution duty to conduct the case fairly, to provide particulars and open its case on the basis of what the prosecution argues is two alternative locations at which the act causing death might have occurred and what the defence argues is two alternative pathways to guilt and then, after the close of evidence, on what the defence contends is a change in its position, to:
a.First, argue against a unanimity direction on the basis that the events the prosecution argues is two alternative locations at which the act causing death might have occurred and what the defence argues is two alternative pathways to guilt represent a single event; and
b.Second, following the argument and my ruling on the unanimity direction, to present the case to the jury in closing on the basis that only one of what the prosecution argues is two alternative locations at which the act causing death might have occurred and what the defence argues is two alternative pathways to guilt, opened upon, namely the stabbing on the roadway, was reasonably possible and that the other, namely the stabbing on the driveway, was “highly unlikely”?
Approach of the Court of Appeal
The task of the Court of Appeal is to determine questions of law rather than decide disputed questions of fact. It is not open to the Court of Appeal to make its own findings of fact, or even to draw inferences from the facts disclosed to it. The facts stated by the Primary Judge are to be taken as the ultimate facts.[66]
[66] Southern Adelaide Health Service Inc v C; Case Stated on Acquittal (2007) 97 SASR 556 at [74]; Rapson v WorkCover Corporation (2007) 98 SASR 86 at [14].
The respondent submitted that as the questions reserved did not contain an agreed statement of facts the questions should not be dealt with. I do not agree. While in some matters a lack of agreement on the facts could be fatal to an application, this is not such a case. The issue arose at trial due to uncertainty in the evidence on the prosecution case. Given the Primary Judge’s directions to the jury, the facts, although disputed, are clearly delineated.
Case stated
The events the subject of Count 1 occurred in two locations: in the front garden and driveway of the respondent’s home (point A) and then the adjacent roadway (point B). The deceased sustained a single stab wound to his back which caused his death. It was uncertain whether the stab wound was inflicted within the driveway or in the roadway, that is either at point A or point B. Events occurring in the driveway of the respondent’s home were captured by a CCTV camera mounted on the roof of a house on the other side of the road. Some, but not all, of the events on the roadway were captured by the CCTV camera. The prosecution case relied upon eyewitnesses where there was no CCTV footage available. The events the subject of Count 2 were captured by the CCTV camera and occurred on the footpath outside the respondent’s home after the events the subject of Count 1.
Prior to the commencement of the trial, and at the request of defence, the prosecution filed a document entitled “Further Particulars” that particularised Count 1 in the following terms:
… on the Crown case, the stabbing occurred … when Sansbury is depicted in the footage swinging the knife towards the side and back of the deceased with his left hand, or off camera to the right of screen, immediately before Sansbury is seen crossing over the road and allegedly hitting, stabbing and stomping on Dannielle Smith … While either is possible on the available evidence, the Crown case, reliant in part on the anticipated evidence of Neville Pearce, will be the stabbing most probably occurred off camera using a similar motion to what is seen on the CCTV footage.
Following receipt of the “Further Particulars”, the defence asked the prosecution to elect as to which incident at which location was relied upon as constituting Count 1. Further, the defence applied for the trial to be permanently stayed until such an election was made. The prosecution declined to make such an election and the Primary Judge declined to stay the proceedings.
The events on the driveway of the respondent’s home were detailed during the prosecution’s opening. The prosecution said, with reference to the CCTV footage, “the accused swung or swiped with his left hand in which held the knife coming across Mr Lawrie’s front and around to the opposite side of Mr Lawrie as Mr Lawrie had turned and twisted slightly towards the accused”. The prosecution stated:
The knife may have hit at that point. The knife may have missed. If it hit that was the fatal wound. There was only the one knife wound found to Mr Lawrie. If it missed this swing and miss serves as a prelude to what was soon to come: a second attempt with a knife moments later.
The prosecution say the second scenario is most likely; that the actual stabbing probably happened moments later just off camera after this first attempt.
What can be seen as Mr Lawrie backs away off screen still unarmed is Eric Newchurch going after him unarmed and shirtless like a boxer, and the accused chase after with his knife and paddle.
Just off screen, it must have been two-on-one with Lawrie backing away off screen to the right. The last thing one sees at this point is the accused do a little skip and go after Mr Lawrie again. It is at that point, ladies and gentlemen, if he had not already, that the accused must have swung his knife around and into the back of Mr Lawrie, causing the fatal wound.
The defence submitted that it was appropriate for the trial Judge to direct the jury that it must be unanimous as to the location at which the act causing death, the single stab wound, was inflicted.
The prosecution opposed the proposed direction, contending that because there was one stab wound, the events on the driveway and on the roadway were one continuous incident and therefore no unanimity direction was required.
Following argument, the Primary Judge ruled that she intended to give an extended unanimity direction and gave the following reasons:
In this matter the prosecution alleges there is only one act which caused death, that is, Haydn Sansbury swinging the knife and connecting with Nigel Lawrie, causing a single penetrative stab wound which penetrated his lung.
The prosecution allege this causative act occurred either on the driveway of 10 Afford Street when Haydn Sansbury is seen swinging a knife towards the side and back of Nigel Lawrie on CCTV but says it is more likely it occurred on the other side of Afford Street out of view of the CCTV.
The two possible locations for the causative act are distinct in the following aspects:
1. the source of the evidence which supports the occurrence at each location;
2.by virtue of the events depicted in the CCTV footage between the two locations, namely, the action involving Haydn Sansbury, Susan Newchurch, Eric Newchurch, Dannielle Smith, and Nigel Lawrie, which includes Haydn Sansbury being pushed by Nigel Lawrie and falling to the ground and Eric Newchurch following Nigel Lawrie across the road out of view of the CCTV footage;
3.whether the causative act performed at either location was accompanied by the requisite intent and whether it had been self-defensive, defensive of another, or defensive property.
The evidence upon which Haydn Sansbury’s intent and any perception of need to defend himself, or another, or his property could be inferred is entirely distinct between the two locations. Accordingly, I intend to give the extended unanimity direction.
During her summing up, the Primary Judge directed the jury that they were required to be unanimous as to the location where the stabbing occurred.
The extended unanimity direction, the subject of Questions One and Two, did not materially differ between the offences of murder and manslaughter.
The jury found the respondent not guilty of Count 1, not guilty of the alternative charge of manslaughter, and guilty of Count 2.
Questions One and Two
It is a fundamental principle of criminal law that in arriving at their verdict a jury must be agreed that every ingredient necessary to constitute the offence has been established. While the prosecution has the burden of satisfying the jury of an accused’s guilt, a problem that arises is that satisfying the jury is not necessarily the same as satisfying each individual juror. For example, where evidence tendered by the prosecution reveals more than one factual basis for the conclusion that the accused is guilty, the possibility arises that some jurors may be satisfied of the accused’s guilt only because fact A is proved whereas the others may be satisfied only because fact B is proved. Every juror is satisfied that the accused is guilty but the question remains is the jury so satisfied.[67] The question that may arise is whether the jury in the particular case be directed that they not only be unanimous as to the accused’s guilt, but also unanimous as to the route or pathway by which that verdict was reached.
[67] See generally JC Smith ‘Satisfying the Jury’ [1988] Crim LR 335.
The need for an extended unanimity direction can only be assessed and determined at the trial after the evidence has been adduced and the factual issues have crystallised having regard to the way the prosecution and the accused have put their respective cases in relation to those issues.[68]
[68] Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (2020) 275 FCR 342 at [76] and [95].
Questions One and Two ask whether it was correct on the evidence, and as a matter of law, in directing the jury that it was necessary that they were unanimously agreed as to the location at which the single stab wound causing death was inflicted?
Law
The appellant relies on the submission that in this matter there was only one actus reus involved. It is necessary to give context to that expression as it was common ground that there were two relevant acts of the accused either of which may have led to the infliction of the fatal wound. Some cases referred to later in these reasons do not always distinguish between an act or conduct of an accused and the actus reus of the crime.
The expressions actus reus and mens rea come from the latin maxim, actus non facit reum nisi mens sit rea: that is, there is no guilty act without a guilty mind. The expression actus reus does not simply mean an act of an accused. In many crimes, it is an act or conduct that has a particular result. Relevantly, in murder and manslaughter cases it must be shown that an accused’s conduct, that is, his or her act, was a substantial cause of the death of the victim. A “dead man with a knife in his back is not the actus reus of murder. It is the putting the knife in the back thereby causing the death which is the actus reus”.[69] Murder and manslaughter cases are crimes where the actus reus of the crime is inextricably linked to the element of causation. That is, while other acts or conduct of an accused may be relevant to the overall circumstances, the actus reus is that which was a substantial cause of death.
[69] JC Smith and Brian Hogan, Criminal Law (Butterworths, 4th ed, 1978) 33.
I mention also the decision of the Victorian Court of Appeal in R v Heaney,[146] where Ashley JA (Redlich and Kellam JJA agreeing) held that two stabbings by the defendant in the course of a relatively short, but interrupted and dynamic, argument and altercation were part of a single transaction or criminal activity and so did not require an extended unanimity direction.
[146] R v Heaney (2009) 22 VR 164 at [85]-[93] (Ashley JA, Redlich and Kellam JJA agreeing); referred to in Zandipour at [75] (Warren CJ, Weinberg and Kaye JJA).
In the ultimate analysis, I do not think this case can be resolved by comparing it with the outcomes in other cases. It must be resolved by a direct application of the principles in Walsh, and hence the various indicia listed in my summary of those principles in Ribbon.
Having considered all of the relevant indicia, and acknowledging that the issue is finely balanced, I am not persuaded that it was appropriate to give an extended unanimity direction in the circumstances of the present case. In my view, it was appropriate for the present case to be approached on the basis that the prosecution case alleged only one actus reus (namely, one fatal stabbing), with the two acts (stabbing motions) alleged by the prosecution, and supported by the evidence, being merely alternative factual or evidential pathways to establishing that actus reus. The evidence established that there was only one fatal stabbing. In considering the evidence in support of the prosecution case that the respondent was responsible for this stabbing, it is relevant that both of the alleged stabbing motions by the respondent occurred within the one altercation or episode of violence. While the altercation had two phases, and the evidence presented differing issues or emphases in respect of each of the two alleged stabbing motions, the two were nevertheless sufficiently related in nature, place, time and circumstance to be treated as merely different evidential or factual pathways to establishing the one actus reus.
I accept that this is ultimately no more than a conclusion from an overall assessment of the way in which the case was presented, and a judgment as to the level of permissible uncertainty in the verdict. But in my view, this case is akin to cases such as Royall, PL and Zandipour, where a degree of uncertainty as to the precise detail of the actus reus was acceptable.
I have mentioned the differing issues or emphases that arose depending upon whether the stabbing occurred on the driveway or on the roadway. In the absence of an extended unanimity direction, it would have been necessary to direct the jury in terms that ensured that jurors addressed both locations. If a juror could not be satisfied beyond a reasonable doubt as to the location at which the stabbing occurred, then he or she would need to exclude any ‘defences’ which arose at either location. Regardless of where the stabbing occurred, they would need to exclude as a reasonable possibility that the fatal stab wound was inflicted by a person other than the respondent. And regardless of where the stabbing occurred, he or she would need to exclude as a reasonable possibility any lawful defensive purpose. In my view, directions of this nature could have been given, without any prospect of prejudice to the respondent. Such directions would have ensured that the jury only returned a verdict of guilt in the event that they were unanimously agreed, beyond a reasonable doubt, that the respondent deliberately stabbed the deceased with the requisite intention and in circumstances that caused his death and were unlawful. In my view, in the circumstances of the present case, this would have been sufficient unanimity to sustain a verdict of guilty.
Conclusion
For these reasons, I would answer Questions 1 and 2 in the manner proposed by Lovell JA.
I also agree with his Honour that it is unnecessary and undesirable for this Court to answer Question 3. In some cases, the fact that an answer will not resolve a dispute between the parties is a basis for declining to answer a question. However, given that the questions in the present case arose out of a verdict of acquittal, such that the answers will not have any impact upon that acquittal, the rationale for the questions reserved lies more in their capacity to provide guidance as to the appropriate resolution of similar cases in the future. While this rationale justifies the resolution of Questions 1 and 2, I do not think it justifies the resolution of Question 3. As Lovell JA said, any resolution of that question would involve considerations so specific to the circumstances of the trial in the present case that they would have little utility in resolving future cases. Further, and in any event, if, in accordance with the decision of this Court, there had been no unanimity direction, then the issue the subject of Question 3 would not have arisen.
I agree with Lovell JA’s answers to the questions reserved.
3
35
0