R (* "the Queen* ") (Respondent) v R (Suppressed) (Appellant) R (* "the Queen* ") (Respondent) v G (Suppressed) (Appellant) Nos. SCCRM 94/479, 94/480 Judgment No. 4997 Number of Pages 8 Criminal Law and Procedure..

[1995] SASC 4997

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), MATHESON(2), MILLHOUSE(3), PERRY(5) AND DUGGAN(4) JJ

CWDS
Criminal law and procedure - particular offences - Murder - felony murder - liability of participant, other than actual killer, in violent or dangerous felony - not necessary for such participant to contemplate use of fatal violence. R v Mcgride (1984) 34 SASR 433, applied. Johns v R (1979-80) 143 CLR
108, distinguished.

Criminal law and procedure - jurisdiction, practice and procedure - judge's summing-up - Accused giving evidence against co-accused - warning as to danger of relying on such evidence - whether prejudicial to first accused - fair balance held. Webb and Hay v R (1994) 68 ALJR 582, applied.

Criminal law and procedure - jurisdiction, practice and procedure - Joint trial of two accused for murder in course of armed robbery - whether statements out of court by one accused implicating the other cause of miscarriage of justice - erasure of prejudicial effect by the first accused giving evidence to same effect - no miscarriage of justice.

HRNG ADELAIDE, 20 February 1995 #DATE 31:3:1995 #ADD 2:5:1995

Counsel for appellant R (suppressed):     Ms B J Powell QC

Solicitors for appellant R (suppressed): W.A.G. Morris Pearce
  and Associates

Counsel for appellant G (suppressed):     Mr M David QC with
  Mr V Condello

Solicitors for appellant G (suppressed): V Condello

Counsel for respondent Crown:             Mr J J Doyle QC with
  Mr S A Millsteed

Solicitors for respondent Crown:         DPP (SA)

ORDER
Appeals dismissed.

JUDGE1 KING CJ The appellants have appealed against convictions by verdict of a jury of the crime of murder. The appellant R has also appealed against his conviction of attempted armed robbery. The appellant G pleaded guilty to that charge.

2. At about 11.30pm on 27th May 1993 two men entered a restaurant in O'Connell Street North Adelaide conducted by Mr and Mrs Debs. The restaurant was closed for business but Mr and Mrs Debs were still on the premises. Both men were wearing balaclavas and both held knives. One man seized Mrs Debs. The second man confronted Mr Debs. A scuffle occurred and Mr Debs was fatally stabbed.

3. The appellant G gave evidence admitting that he was at the shop for the purpose of robbery. He said that the appellant R was his companion and that R stabbed Debs. There was other evidence implicating R. G claimed that he believed that the knives would not be used. He claimed that he did not consider the possibility of violence being used. The following question and answer occurred during his evidence:
    "Q. Am I correct in saying that your state of mind was
    that Bob had told you that once they see knives they will
    just throw money at you.

A. Yes."

4. R gave evidence denying any part in the crime and denying that he was at the restaurant that night.

5. The learned judge directed the jury that the perpetrator, the actual stabber, was guilty of murder if he intended death or grievous bodily harm.

6. The learned judge further directed the jury that "(t)he perpetrator was guilty of felony murder if he caused the death of Mr Debs by a deliberate stab wound that occurred in the course of or in furtherance of a felony involving violence and danger to life."

7. The direction as to the perpetrator's companion was as follows:
    "First, the Crown have to prove that the perpetrator, the
    man I've just been talking about at length, that the perpetrator
    of Mr Debs' death and his companion were engaged on a joint
    enterprise to rob the occupant or occupants of the restaurant at
    knife point. That means that they must have planned the robbery
    together in advance, although any time in advance will do - it
    could have been immediately before they entered the restaurant -
    but they planned it together, so that both of them were acting
    as partners in the robbery, and both knew that each was carrying
    a knife that would be used, if only by way of threat, to assist
    in bringing the robbery to a successful conclusion.

Secondly, it must be proved that the robbery was a felony
    involving violence and danger to life.

Next, it must be proved that Mr Debs' death was caused, or
    caused substantially, by an act of the perpetrator that occurred
    in the course of, or in furtherance of, the robbery. It must be
    the perpetrator's willed act, but it is not necessary that the
    perpetrator intended to cause death or grievous bodily harm.

Now I've already explained what all of those ingredients of a
    felony murder require. The law says that, when a death
    amounting to felony murder actually occurs in those
    circumstances, the perpetrator's companion or partner will also
    be guilty of murder. It must be proved that the companion knew
    that he was engaged in a knife-point robbery involving the
    threatening of any occupant or occupants of the restaurant with
    knives at close quarters, and that such robbery, in fact,
    amounted to a felony involving violence and danger to life. I
    say amount 'in fact' to such a felony; that will be a matter for
    your judgment.

If it was such a felony, that is, a felony involving violence
    and danger to life, it does not matter whether the companion, or
    the perpetrator for that matter, realised at the time that he
    was engaged in a violent and dangerous crime.

It would be no defence for the companion to say that he did not
    intend to use his knife, and did not expect that the perpetrator
    would either, that he thought that any occupant or occupants
    would simply hand over their money, as soon as they saw the
    knives, without a struggle. That would not be a defence,
    because the policy of the law is that, if a man knowingly joins
    in what is, in fact, a violent and dangerous crime of the kind
    that I have described, in partnership with another, then he
    shares the responsibility for a murder that takes place in the
    course of, or in furtherance of that crime. Now, whether this
    is, or was, a violent crime, dangerous to life, will be a matter
    for you to decide."

8. The appellant G challenges the direction so far as it relates to the perpetrator's companion. Mr David QC who appeared for him contended that the jury should have been directed that, assuming the stab wound to have been inflicted by the other robber, G was guilty of murder only if it was in his contemplation that the stabber would or might inflict a fatal stab wound.

9. The common law as to felony murder applied in South Australia at the time of the subject incident. Since then it has been abolished by statute in consequence of the abolition of the concepts of felony and misdemeanour, and has been replaced by a more or less equivalent provision; Criminal Law Consolidation Acts12A. The common law rule as formulated by this Court in R v Van Beelen (1973) 4 SASR 353 at p403 is that "it is murder to cause death in the commission of or in furtherance of the commission of a felony involving violence or danger."

10. In R v McBride (1984) 34 SASR 433, the Full Court had to consider an argument that the participant in the felony who is not the actual perpetrator of the fatal violence is guilty of murder only if he has agreed or consented to the fatal violence or had in contemplation that such violence might be used. I find the reasons expressed by the members of the Court somewhat confusing but it is clear that the Court rejected that argument and upheld a direction that if two persons are engaged in armed robbery, only one of them holding a gun which kills the victim, then both are guilty of murder.

11. Mr David QC challenged the correctness of that decision and five judges have sat on this appeal because of that challenge.

12. The decision in R v McBride was in accordance with established authority. The leading case is the decision of the English Court of Criminal Appeal in R v Betts and Ridley (1930) 22 Cr App R 148. In that case it was held that a principal in the second degree to the crime of robbery with violence, was guilty of murder when the principal in the first degree, contrary to the accessory's expectation, inflicted violence to such a degree as to cause death. In R Solomon (1959) Qd.R 123 at pp126-7 Philp J, citing R v Betts and Ridley, said:
    "By the common law if the victim of robbery, which is a
    felony involving violence, be killed in the course of the
    robbery all parties to the robbery are guilty of murder. The
    probability or possibility that homicide would or would not be
    done is irrelevant. The fact that the homicide occurred
    independently of the exercise of the will of one of the
    accomplices would not exonerate him."

That statement of the common law is supported by Stephen, A Digest of the Criminal Law 7th Ed. p225; R v Jackson (1857) 7 Cox's CC 357; R v Rubens and Rubens (1909) 2 Cr App R 163; R v Murray (1924) VLR 374; R v Appleby (1940) 28 Cr App R 1; R v Ryan and Walker (1966) VR 553 esp at 563-7; R v Grant and Gilbert (1954) 38 Cr App R 107.

13. Mr David argued that this Court should depart from that line of authority and place the criminal liability of a principal in the second degree or an accessory before the fact to felony, for a murder committed in the course of the felony, on the basis of the rule as to common purpose laid down in Johns v R (1979-1980) 143 CLR 108. He contended that such a radical development of the common law is justified on grounds of policy because, in his submission, the Johns principle is a more just and satisfactory basis of liability, and on the ground that the maintenance of the principle upheld in R v McBride supra would confine the operation of the Johns principle in South Australia to a narrow class of cases.

14. As the Solicitor-General (Mr Doyle QC) observed, the argument on grounds of policy is really an attack on the felony murder rule itself. If the policy is accepted that the actual perpetrator should be liable for the unintended consequences of his actions in the course of the felony because in engaging in a violent or dangerous felony he must accept responsibility of what occurs in the course of that felony, even though unintended, there appears to be no reason of policy why other participants in the felony should not also have to accept the same responsibility. The felony murder rule is part of the common law and is now entrenched in the statute law of South Australia, in equivalent form, by s12A of the Criminal Law Consolidation Act. The rule upheld in R v McBride appears also to be consonant with the principles of accessorial liability for unintended consequences laid down in Giorgianni v R (1985) 156 CLR 473.

15. It is true that the rule has the effect of confining the scope of the operation of the Johns principle within narrow bounds because most common enterprises resulting in murder will have felony, or its equivalent under s12a, as their object. There are other classes of case, however, to which the Johns principle applies; one such case is R v Miller (1979-80) 1 A Crim R 188 in which the purpose contemplated by the accessory was not felony but seduction.

16. R v Johns was decided in accordance with the law of New South Wales. The felony murder rule does not form part of the law of that State. An equivalent rule is enacted by s18 of the Crimes Act (NSW) in relation to crimes punishable by penal servitude for life, but it is confined to the commission of the crime "by the accused, or some accomplice with him" (emphasis added). Section 18 therefore had no application to the factual situation in Johns as the appellant in that case was not with the actual perpetrator but was an accessory before the fact. The restriction of the liability of the accessory to acts which were within his contemplation, has no application in South Australia to a murder committed in the course of the commission of a felony.

17. I do not think that there would be any justification for this Court to depart from the established principles of the common law with respect to accessorial liability for felony murder.

18. The conclusion to which I have come leaves the appellant G without a defence to the charge of murder and, strictly speaking, disposes of his appeal without the necessity of considering his other grounds of appeal. I think it advisable, however, to deal briefly with one of them.

19. The learned trial judge gave the jury a warning about the use of G's evidence against R. The relevant passage in the summing up is as follows:
    "Each of the accused gave evidence on oath and was generally
    cross-examined, just like the other witnesses. Generally
    speaking, you should assess the evidence of an accused person in
    the same way as you would assess the evidence of any other
    witness. Consider it carefully and assess it in the light of
    all the other evidence in the trial.

However, when an accused person gives evidence against his
    co-accused - evidence which, if believed, would undermine the
    defence of the co-accused - it is necessary to examine that
    evidence with more than ordinary care, because the person who is
    giving it may have an interest of his own to serve.

Now, there may be different reasons why G might have decided to
    give false evidence in this respect against R. It will be for
    you to decide whether that is what has happened in this case.

You will also consider, of course, whether G's evidence against
    R in this respect - putting R in the restaurant as the second
    man - has independent support from witnesses whose evidence you
    are disposed to accept. You must understand clearly that this
    word of caution is directed only to G's identification of R as
    his companion in the robbery - I should add to that - and to his
    implication of the involvement of R that he describes, by
    implication perhaps, on the stairway and his other part in the
    events outside the restaurant to the exclusion of G personally.

What I am saying has nothing to do with G's evidence in support
    of his own defence, what he did and so on that night. In that
    latter respect, you must approach G's evidence in the same way
    as you would approach the evidence of any other witness."

20. Mr David argued that this direction was unfairly prejudicial to G and ought not to have been given. In Webb and Hay v R (1994) 68 ALJR 582, the High Court endorsed the view of the Court of Criminal Appeal of this State that the correct approach to the question of a warning where one accused gives evidence against a co-accused is to be found in this passage from the judgment of the Court of Criminal Appeal of New South Wales in R v Hennig (Unreported 11th May 1990):
    "But different principles apply when the supposed accomplice
    who gives evidence against a co-accused is himself an accused
    giving evidence in his own case. It would be difficult indeed
    to seek to apply inflexible rules to such situations. For the
    interests of justice will almost certainly require different
    responses in different circumstances. Considerable latitude
    must be allowed in order to enable trial judges to address the
    situation in a manner which will adapt to the competing
    interests in the particular case."

In Webb and Hay, Toohey J at p609 speaking for the majority stated the obligation of the trial judge as "to maintain a balance between the interests of Webb on the one hand and Hay on the other."

21. In my opinion the learned trial judge held a fair balance in the present case. He made it clear that the warning applied only to G's inculpation of R and that G's evidence in support of his own case was to be approached in the same way as that of any other witness. That distinction might be difficult for a jury to apply, but the judge did all that could be done to be fair to both accused.

22. Mr David has also complained about the learned trial judge's refusal to allow counsel for G to cross-examine R about R's criminal record. He contended that R had given evidence against G within the meaning of s18(1)(VI)(c) of the Evidence Act. The argument was that, as G's defence that he did not contemplate the use of the knife was founded in part upon the conversation with R referred to above, R's denial of any participation undermined G's defence and therefore exposed R to cross-examination as to character. The learned trial judge held that R's evidence denying participation did not amount to evidence against G within the meaning of the section. The bearing of the point on the appeal, however, depends upon the relevance of G's state of mind as to whether the knives would be used. As the law, in my opinion, makes G guilty of murder irrespective of whether he contemplated the use of the knife by R, it is unnecessary to consider this ground of appeal.

23. The appellant R's appeal is based upon the contention that the joint trial has produced a miscarriage of justice by permitting the jury to hear evidence which was not admissible against R and which was prejudicial to him.

24. The first such piece of evidence was a conversation deposed to by a witness Sandra Bright, between her and G. Bright gave evidence that she was in the car in which G and R travelled to, and left the vicinity of, the restaurant on the night of the robbery. The subject conversation occurred on the following day, according to Bright, and in it G implicated R as having stabbed the man in the restaurant. There were also out of court statements made by G to detectives which implicated R. It seems to me, however, that the prejudicial effect of the statements to Bright and the police, was erased by the fact that G gave evidence at the trial to the same effect and was cross-examined by counsel for R.

25. The other piece of evidence which was said to be prejudicial was the conversation deposed to by G in the passage quoted above in which R spoke of the way people behaved when confronted by a knife. It was said that that conveyed to the jury that R had previously been involved in similar conduct.

26. There was a history to the leading of that evidence. There had been a previous trial of these accused on these charges as well as a further charge of wounding Mrs Debs with intent to do her grievous bodily harm. The case against G as to the last mentioned charge was, at least as an alternative, based upon his sharing a common purpose with the actual stabber. G, on that trial, gave evidence of the above conversation and gave further detail indicating expressly that R had said that he had "done this before". The learned trial judge discharged the jury. He then indicated that he would grant separate trials unless the prosecution agreed to sever the charge of wounding Mrs Debs. His Honor's reasoning was that if that were done, there was no relevance in the evidence that R had done this before, because the case for murder against G depended not upon common purpose to stab but upon the killing occurring in the course of the commission of a felony. The prosecution agreed to that course and a new joint trial commenced. The critical evidence was carefully led in accordance with his Honor's ruling so as to avoid any reference to previous criminal behaviour.

27. Despite his Honor's precautions, the risk must be recognized that jurors might speculate as a result of the remarks attributed to R that R had previously engaged in robbery by means of a knife. The question is whether the speculative prejudice arising from that possibility had the effect of causing a miscarriage of justice.

28. In R v Webb and Hay, Toohey J, speaking for the majority, recognized that when accused persons are charged with committing a crime jointly, prima facie there should be a joint trial. The learned trial judge in this case considered that "the indicators for a joint trial in this particular case are very strong." I recognize that if G gave evidence at a separate trial of R, the evidence of the conversation would not be permitted as it could have no probative value, its tendency being exculpatory rather than inculpatory on the murder charge. Nevertheless the prejudice said to result is inferential and speculative. It is highly unlikely that the jury was influenced in a prejudicial way. I do not think that the speculative possibility of some prejudicial effect can be allowed to outweigh the considerations in favour of a joint trial. I do not think that there has been a miscarriage of justice.

29. I would dismiss the appeals.

JUDGE2 MATHESON J I agree that both appeals should be dismissed for the reasons given by the Chief Justice.

JUDGE3 MILLHOUSE J I agree that the appeals be dismissed for the reasons given by the Chief Justice.

2. Mr David made a bold attempt to get us to change the law - but it was an attempt bound to fail, even though he exercised to the full his considerable powers of persuasion.

JUDGE4 DUGGAN J I agree that these appeals should be dismissed for the reasons given by the Chief Justice.

JUDGE5 PERRY J I agree that the two appeals in this matter should be dismissed, substantially for the reasons given by King CJ.

2. I would wish to add some observations as to two aspects of the matter.

3. The first is the question raised in the appeal by R as to the admissibility of the evidence of G that R had told him that "once they see knives they will just throw money at you".

4. With respect to the view expressed by the learned Chief Justice, in my opinion, that evidence would be both relevant and admissible if one imagined that it was led on a separate trial of R. One assumes that the Crown would in such a trial rely on the felony murder rule. If so, in my opinion, the evidence would be admissible to prove a common intention to rob, that being an element in the foundational offence, which would in any event be put in issue by R's plea of not guilty to attempted armed robbery.

5. The second is that I would wish to sound a note of caution as to the construction of s.12A of the Criminal Law Consolidation Act 1935, that section having been introduced into the Act by the Criminal Law Consolidation (Felonies and Misdemeanours) Amendment Act 1994 which came into effect on 1 January 1995.

6. The section is as follows:
    "A person who commits an intentional act of violence while
    acting in the course or furtherance of a major indictable
    offence punishable by imprisonment for ten years or more
    (other than abortion), and thus causes the death of another,
    is guilty of murder."

7. Although there has been some uncertainty as to the precise formulation of the felony murder rule at common law, the law applicable in this State has been settled by the passage which appears in the joint judgment of Bray CJ, Mitchell and Zelling JJ in R v Van Beelen (1972) 4 SASR 353 cited by King CJ, which I repeat (403):
    "... it is murder to cause death in the commission of or in
    furtherance of the commission of a felony involving violence
    or danger."

8. That statement of the rule considered in the context of the preceding discussion at pp 400 et seq makes it plain that an act resulting in death may be caught by the rule even if it is not a violent act and even if it does not occur in the course of a felony the commission of which involves violence as opposed to danger.

9. Furthermore, at common law the act causing death may be accidental and no specific intention need be proved other than that involved in the elements of the foundational crime; see, for example, Gillies' Criminal Law 3rd Ed (1993) at 624:
    "It is unnecessary that the act causing death be accompanied
    by any element of mens rea other than, of course, the mens
    rea associated with the foundational felony. Thus, on
    inadvertent act causing death will incriminate D in felony
    murder."

10. An example of a common law felony not involving violence but which involves danger and is therefore capable of giving rise to the application of the common law rule is arson (see the discussion in Howard's Criminal Law (5th Ed) (Fisse) (1990) at 64-71).

11. In contrast with the common law rule, s.12A requires an intentional act of violence, and to that extent, would, on the face of it, have a more limited application. There may be a question also as to the meaning to be given to the word "intentional" when it appears in the section.

12. However, the section is not of application in the present case, and consideration of its meaning and scope must await the hearing of a case to which it applies.

13. Before parting with the matter, I mention in case it might be thought to have been overlooked, that the words used and repeated by the learned trial Judge in the course of his summing up, namely, "violent and dangerous" (my emphasis) represented a more strict expression of the rule than that appearing in Van Beelen (supra).

14. I would dismiss the appeals.