R v Adams

[1998] QCA 64

IN THE COURT OF APPEAL

[1998] QCA 064

SUPREME COURT OF QUEENSLAND

Brisbane

[R. v. Adams; ex parte A-G]

C.A. 341 of 1997

THE QUEEN

v.

GEORGE ADAMS Respondent

EX PARTE: ATTORNEY-GENERAL OF QUEENSLAND

Appellant

[R. v. Adams]

C.A. No. 343 of 1997

THE QUEEN

V.

GEORGE ADAMS

(Applicant) Appellant

Fitzgerald P.
McPherson J.A.

Byrne J.

Judgment delivered 21 April 1998

Separate reasons for judgment of each member of the Court, Fitzgerald P. dissenting

IN APPEAL C.A. 341 of 1997, APPEAL AGAINST SENTENCE DISMISSED.

IN APPEAL C.A. 343 OF 1997,

(1)	APPEAL AGAINST CONVICTION DISMISSED;
(2)	APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.
CATCHWORDS:	CRIMINAL LAW - assault occasioning bodily harm - procurement - whether conviction unsafe and unsatisfactory - whether accused was proved to have intended the offences actually committed by primary offender - Criminal Code, s. 7(1)(d). CRIMINAL LAW - sentence - leniency - whether age, health and family circumstances are mitigating features.
Griffiths v. R. (1994) 69 A.L.J.R. 77 Holland v. R. (1993) 67 A.L.J.R. 946 K.B.T. v. R. (1997) 72 A.L.J.R. 1165 R. v. Oberbillig [1989] 1 Qd.R. 342 R. v. Clough (1992) 28 N.S.W.L.R. 396 Stuart v. R. (1974) 134 C.L.R. 426
Counsel:	Ms L. Clare for the appellant/respondent. Mr W.J. Cuthbert with him Mr G.D. Wendler for the respondent/appellant
Solicitors:	Director  of Public Prosecutions (Queensland) for the
appellant/respondent. John. D. Weller & Associates for the respondent/appellant.
Hearing Date:	11 February 1998

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 21 April 1998

On 14 April 1997, the appellant, Adams, was convicted of two offences in the District Court at Cairns; namely, that on 26 August 1994 he (i) unlawfully detained one Von Nida in a room against his will and (ii) unlawfully assaulted Von Nida and thereby did him bodily harm while in company with other persons and armed with an offensive weapon. Following his conviction, the appellant was sentenced to imprisonment for two years for the former offence and for four years for the latter offence, to be served concurrently, and it was ordered that the balance of the sentence be suspended for four years after he had served nine months’ imprisonment. The appellant has appealed against his conviction and applied for leave to appeal against sentence and the Attorney-General has appealed against the appellant’s sentences.

Von Nida, a former business associate of the appellant, attended at his premises on 26 August 1994 at the appellant’s invitation in connection with a debt owed by the appellant to Von Nida. After some discussion, the appellant left the room and, as he did so, three other men entered. Each carried a telescopic steel baton which he extended with a flick of his wrist. The offences then took place in the absence of the appellant. Von Nida was badly beaten, threatened with a pistol, and detained (at times with a blanket over his head) while his assailants cleaned up the premises, an activity which took more than two hours and primarily involved hosing and mopping up Von Nida’s blood. Repeated threats were made to kill Von Nida and his family. After the appellant returned, Von Nida was released. Later, he was admitted to hospital, with injuries which included a broken jaw, and extensive gashes, lacerations and bruising to his head and body.

The appellant had arranged for the three men who assaulted Von Nida, together with a fourth man, to travel from Sydney and be present at the appellant’s premises when Von Nida attended at the appellant’s invitation. It is convenient to refer to the other men as the “principal offenders”. While Von Nida was still being held, the appellant also hired a car for two of the principal offenders to use to return to Sydney. Immediately after the offences, the appellant and the two other men from Sydney travelled to Innisfail. The appellant booked two motel rooms in Innisfail under a false name and flew to Sydney the following day.

The appellant did not give evidence, but in a record of interview said that he had arranged for the principal offenders to protect him from Von Nida and to “negotiate with” Von Nida. The appellant was aware that one of the principal offenders had a gun. During Von Nida’s conversation with the appellant, the principal offenders were in the next room. When the appellant and Von Nida were talking and the appellant was “getting upset”, “two of those fellows burst in and pushed me aside and out of the door and started to beat ...” Von Nida, although they “were supposed to be waiting for the meeting to be over”. The offences occurred despite the appellant’s protests and his pleas on Von Nida’s behalf. According to the appellant, he had not authorised the offences and was distressed by them. He tried to intervene, but was threatened.

The appellant’s grounds of appeal against his conviction all arise out of the manner in which the trial was conducted with the consent, or at least acquiescence, of both the prosecutor and the appellant’s experienced trial counsel. Three aspects of the trial need be noted. Firstly, the prosecution case against the appellant was based entirely on that part of sub-s. 7(1)(d) of the Criminal Code which provides that, when an offence is committed, a person who procures any other person to commit the offence is deemed to have taken part in committing the offence and to be guilty of it and may be charged with actually committing it.[1] Secondly, the jury was instructed that it could only convict the appellant of the offences charged or acquit him. “There is no scope here for an alternative verdict of any kind.” Thirdly, in directions summarising the prosecution and defence cases, the case for the appellant at trial was put as follows:

[1]              See also sub-ss. 7(2) and (3) of the Code.

“The defence case, on the other hand, is that ... you would not accept the evidence of [Von Nida] in respect of the participation of the accused in what occurred in that room ... . ... . They also submit to you that at the end of the day you would be left in reasonable doubt whether or not the account given [by the appellant] to the Police Sergeant ... was correct or not, and therefore would accept that account and acquit the accused person.”

The prosecution submission was that the jury “would have no doubt in rejecting beyond reasonable doubt the [appellant’s] story ... that those men who came to Cairns ... subsequently went on a frolic of their own ... without any participation or encouragement of the accused in the violence used against the complainant”.

Earlier, before identifying the legal elements of the offences, the trial judge had directed the jury that it had to be satisfied beyond reasonable doubt that the prosecution “has made out each and every element which must be made out in respect of a particular count. If, at the end of the day, you say to yourselves you are not satisfied beyond reasonable doubt that the Crown has made out a particular element in respect of this accused in respect of a particular count, then you acquit the accused of that count. If, on the other hand, at the end of the day you are satisfied beyond reasonable doubt that the Crown has made out each and every element in respect of a particular count in respect of the accused person, your verdict, in accordance with the oath which you took the other day, would be one of guilty in respect of the count.”

It is against that background that the critical passage in the trial judge’s summing up must be viewed. After telling the jury that it was not really in dispute that the elements of the offences had been established in respect of the conduct of the principal offenders, his Honour continued:

“So in summary, the principal offences are accepted as being committed against the complainant by the assailants, as I will call them. So how does the accused fit into that picture? Because it is not suggested that he was indeed one of the three assailants.

Our law provides ... that where an offence is committed each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it, that is to say every person who actually does the act which constitutes the offence - that would be the three assailants. And further, any person who procures any other person to commit the offences. What is said here by the Crown is that you should be satisfied beyond reasonable doubt that it was this accused who procured those three men to commit the principal offences. And if you are so satisfied beyond reasonable doubt, then you would convict the accused himself of the principal offences despite the fact that he did not actually commit the offences himself.

Ladies and gentlemen, that is the way that the matter is placed before you as far as the legal aspects of the case are concerned. It then becomes necessary for you to obviously consider the facts of the case. ...”

For present purposes, the most important passages in the trial judge’s directions to the jury are the following two statements:

“If, at the end of the day, ... you are not satisfied beyond reasonable doubt that the Crown has made out a particular element in respect of this accused in respect of a particular count, then you acquit the accused of that count.”

and

“What is said here by the Crown is that you should be satisfied beyond reasonable doubt that it was this accused who procured [the other] three men to commit the principal offences. And if you are so satisfied beyond reasonable doubt, then you would convict the accused himself of the principal offences despite the fact that he did not actually commit the offences himself.”

The summing-up contained no additional explanation or elaboration of those directions.

Sub-section 7(1)(d) imposes criminal liability on a person “who counsels or procures” another person to commit an offence. Counselling and procurement are not coextensive, but alternatives, and the dicta of Philp J. In R. v. Solomon[2] should not be regarded as authority to the contrary. Procurement involves more than mere encouragement[3] to commit an offence and requires successful persuasion. A person who procures another to commit an offence not only attempts to induce but actually induces the other to do so.

[2] [1959] Qd.R. 123, 129 last paragraph.

[3]              Cf. Stuart v. R. (1974) 134 C.L.R. 426, 445; R. v. Oberbillig [1989] 1 Qd.R. 342, 345.

“Offence” is defined in s. 2 of the Code as an act or omission which renders the person doing the act or making the omission liable to punishment. That definition is applicable to sub-s. 7(1)(d).[4] The “act” which the appellant was charged with committing was procuring the principal offenders to do the “acts” which rendered them liable to punishment for unlawful detention and assault of Von Nida in company and armed with an offensive weapon. The appellant argued that the prosecution was required to prove beyond reasonable doubt that he procured the actual conduct engaged in by the principal offenders. At its widest, that argument involves the submission that the jury should have been instructed that the prosecution had to prove beyond reasonable doubt that the appellant specifically procured each individual punishable act performed by the principal offenders.

[4]           R. v. Barlow (1997) 188 C.L.R. 1 at p. 9 per Brennan C.J., Dawson and Toohey JJ.

That is incorrect. When a charge is founded on sub-s. 7(1) of the Code, the accused must be proved to have intended the offence or offences committed by the primary offender, i.e., the primary offender’s acts or omissions. Even though s. 9 of the Code facilitates the prosecution’s task when a charge against an accused is founded on counselling, the jury must be instructed in such a case to consider what, if any, punishable acts or omissions the accused sought to induce the primary offender to do or omit to do.[5] More generally, proof of an accused’s intent for the purpose of a charge founded on sub-s. 7(1) is usually dependent on proof of the state of the accused’s knowledge.[6] For a charge founded on procurement, although it is ordinarily unnecessary to prove that he or she knew that the particular acts would be committed by the primary offender and sufficient that the accused knew the type of offences intended,[7] proof is required that he knew the essential facts of the offences or deliberately avoided that knowledge.[8] In Bruce v. Williams, Priestley J.A., with whom Samuels and Meagher JJ.A. agreed, said:[9]

[5]           Stuart at p. 445; Oberbillig at p. 345.

[6]              The case against an accused might be largely or entirely circumstantial - as is this case - necessitating the accused’s state of mind to be determined by inference. Because proof beyond reasonable doubt is required, the inference or inferences essential to guilt must be the only inferences available.

[7]           Bruce v. Williams (1989) 46 A.Crim.R. 122; R. v. Ancuta [1991] 2 Qd.R. 413, 417-419

[8]           Giorgianni v. R. (1985) 156 C.L.R. 473; Yorke v. Lucas (1985) 158 C.L.R. 661, 667; Stokes and Difford (1990) 51 A.Crim.R. 25, 38; R. v. Clough (1992) 28 N.S.W.L.R. 396, 399; R. v. T. [1997] 1 Qd.R. 623, 643; R. v. Jeffrey (C.A. 154 of 1997, unreported, 19 December 1997 per McPherson J.A. at p. 6.)

[9]              46 A.Crim.R. at p. 129.

“... Clearly, it will be a matter of the court’s evaluation from case to case whether the particular crime committed bore such similarity to that of which the accused had knowledge, to fall within the rule, and no doubt there will be cases where it is difficult to be sure that the rule is fulfilled. ...”

The jury in the present case was given no explanation by the trial judge concerning what it should consider or how it should decide whether the appellant had procured the principal offenders’ offences. More particularly, it was given no indication that it was required to determine what the appellant knew and intended. No reference was made to the possibility that the appellant intended that Von Nida only be threatened, not struck, or that he not be struck with weapons, to the possibility that the appellant did not intend that bodily harm be caused to Von Nida, or to the possibility that he did not intend that Von Nida be unlawfully detained or that his assailants be armed. In my opinion, the trial judge’s directions to the jury were inadequate. Especially because the jury would likely have been easily persuaded that the appellant procured some offences by Von Nida’s assailants, the absence of material detail from the summing-up created a real risk that the appellant was convicted of more serious offences than he sought to procure.

The deficiency in the summing-up is exacerbated by the consideration that the case against the appellant was largely circumstantial and would have been considerably strengthened by the almost certain conclusion by the jury that the appellant had lied. A proper direction concerning the jury’s permissible use of the appellant’s lies was critical,[10] but no direction concerning lies was given. Such a direction would have included reference to the special difficulty of drawing an inference with respect to the offence of unlawful detention and the circumstances of aggravation in relation to the charge of unlawful assault.[11]

[10]         Edwards v. R. (1993) 178 C.L.R. 193.

[11]            Cf. R. v. M. [1995] 1 Qd.R. 213 at p. 223 (evidence of flight).

The conduct of the appellant in “importing” thugs from Sydney and then inviting Von Nida to his property for “negotiations”, his immediate departure for Sydney with the assailants after Von Nida had been beaten, including his use of a false name, and his blatantly implausible story to police strongly suggest his guilt of procuring an assault on Von Nida.[12] Further, his trial counsel consented to, or acquiesced in, the course of the trial. Nonetheless, in my opinion, the directions to the jury on the critical point in dispute in the trial were seriously deficient. In these circumstances, the Court cannot be satisfied that the appellant did not lose a real possibility of acquittal and that there has not been a substantial miscarriage of justice.[13]

[12]            If, as seems likely, the appellant is guilty, the sentences imposed seem extremely lenient, even allowing for the personal circumstances of the appellant and his wife.

[13]         K.B.T. v. R. (High Court of Australia, FC97/049, 9 December 1997, unreported).

The appeal should therefore be allowed, the appellant’s convictions quashed and a new trial ordered.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 21 April 1998

The appellant was found guilty at his trial in the District Court at Cairns on an indictment charging him with one count of unlawfully detaining the complainant Edward von Nida against his will and another count of assault occasioning bodily harm. In respect of the second count, two aggravating circumstances were also charged, and were found by the jury. They were that, at the time of the assault, the appellant was in company with other persons, and that the appellant was armed with an offensive weapon. He was sentenced to imprisonment for four years suspended for four years after serving nine months of it.

The facts giving rise to the offence are set out in detail in the reasons of Fitzgerald P., which I have had the advantage of reading. In essence, they are that the appellant and the complainant had been involved in business dealings which had given rise to an indebtedness on the part of the appellant to the complainant. On 26 August 1994 at the appellant’s invitation, the complainant went to the appellant’s house at Deeral to discuss the matter. The discussion took place in a room in that house that was used as an office. When it was over the appellant got up to go saying words to the effect “You shouldn’t have threatened me”. As he left through a door to the room, three men burst in through that door. One had a stocking over his face, and each of them was carrying a telescopic steel baton, which they proceeded to extend. Their leader told the complainant, “You shouldn’t have threatened an elderly man and an elderly woman”. They then set about punching and beating the complainant, after which he was kept in the room. A gun was placed at his temple and a blanket was put over his head. Afterwards he was made to help with cleaning up his blood, which had spattered extensively over the floor and walls of the room.

There is no doubt that the complainant had been detained in the room against his will, and had been assaulted and sustained bodily harm, as defined in the Criminal Code to mean any bodily injury which interferes with health or comfort. Those who assaulted him were in company, and one of them was armed with an offensive weapon. The appellant did not himself give evidence, but the defence version of events, which was before the jury at the trial, was in substance that he had arranged to bring the three men from Sydney, not in order to beat up the complainant as in fact happened, but only to provide protection for himself against possible physical harm by the complainant.

Having regard to the way in which the case was conducted at the trial, the primary question for the jury was whether or not the appellant was criminally responsible for the actions of the three men who carried out the beating and detention of the complainant. In accordance with the practice followed in Queensland in framing indictments, each of the counts and the aggravating circumstances in respect of count 2 was formulated in terms that averred that the appellant himself had carried out the acts in question. That accords with the provisions of s.7(1) of the Code, which, in imposing criminal responsibility on various secondary offenders, provides that, in the circumstances specified in paras. (a) to (d) of s.7(1), each of them “is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it ...”.

In the present case, there was potentially more than one paragraph of s.7(1) under which the appellant might have been so charged or found guilty of the offences in the indictment. When pressed by the learned trial judge, the Crown prosecutor elected to rely on s.7(1)(d) or that part of it deeming a person to have actually committed an offence “who ... procures any other person to commit the offence”. As to that, there was ample evidence on which the jury could have been satisfied, as they evidently were beyond reasonable doubt, that the appellant had procured the three men to do what they did. The complainant was detained, assaulted and sustained bodily harm at the hands of those three men. They had been waiting in the house at Deeral in the adjoining room next to where the discussions were taking place between the complainant and the appellant. They came into the room at the same time as he went out, passing so close to the appellant that, as the complainant said, “they would have rubbed shoulders as they passed in the doorway”. Having regard to this and to the fact that the offences took place in the appellant’s own house, as well as to evidence of the arrangements made by the appellant to bring the men from Sydney and return them there, it was plainly open to the jury to conclude that their intended function was not simply to protect the appellant from being harmed by the complainant, but to inflict harm upon him, which is what they did.

In these circumstances, there can be no question that the verdicts returned were in any way unsafe or unsatisfactory. At the trial the issue was presented to the jury by counsel on both sides as essentially one of whether they were satisfied to the requisite standard of the prosecution case or, conversely, whether the defence version raised a reasonable doubt in their minds. Relying on the way in which the case was conducted, the learned trial judge directed the jury accordingly. There can be no complaint on that score.

What is said, however, is that the learned judge failed to instruct the jury about the law in relation to s.7(1)(d). He should, so it was submitted, have directed them not to convict unless they were able to determine specifically what it was the appellant had procured or arranged for the three men to do, and that they had done, no more than that to the complainant. In fact, what the trial judge said in giving his directions to the jury was that the prosecution asked them to find that:

“... in all those circumstances, with that evidence taken together, you could be left with only one inference, and that is that the accused was a party to the violence inflicted on the complainant in that room. Indeed, that you could be satisfied beyond reasonable doubt that in all the circumstances he procured that violence and that detention.”

His Honour had previously explained to the jury the meaning of bodily harm (which it was conceded the complainant had sustained) as well as the effect of s.7(1)(d), saying that they could convict the appellant if they were satisfied beyond reasonable doubt that it was the appellant who had procured those three men to commit the principal offences “despite the fact that he did not actually commit the offence himself”. I do not consider that more than these directions was required by the decision in Barlow v. The Queen (1997) 188 C.L.R. 1.

It might perhaps be thought to have left out of account the matters of aggravation charged in the indictment; but in his direction his Honour dealt specifically with those matters. He also said that the prosecution:

“[asked] you to be satisfied beyond reasonable doubt that the accused had
procured the offences alleged in the indictment.”

In the result, I do not consider that the directions given to the jury by the trial judge were defective or deficient in any way. The complainant was subjected to detention and also to bodily harm as a result of an assault or assaults perpetrated by the three men. The only question for the jury was whether that outcome had been procured by the appellant. They were satisfied beyond reasonable doubt that it had been. The appeal must therefore be dismissed. I agree with the reasons of Byrne J. for arriving at this conclusion on the principal issue on the appeal, as well as the other questions considered by him.

As to sentence, it is hardly possible to underestimate the seriousness of the offences and the method adopted by the appellant to commit them. The appellant is 68 years of age, with no previous convictions, and he had, we were told, a difficult life in Poland before emigrating here. In sentencing him, the judge plainly took those factors into account in imposing a sentence of imprisonment for four years and suspending it after only nine months. Such a penalty can in the circumstances only be described as moderate, if not merciful. Even the elderly must not be led to suppose that, because of their age or other factors, they may commit offences of this character with impunity. But, for much the same reason and in particular because of the personal circumstances of the appellant himself, I do not regard the matter as one in which the sentence ought on this occasion to be increased. On this and related questions, I agree with what Byrne J. has written.

In my opinion both the appeal against conviction and the application for leave to appeal against sentence should be dismissed. The Attorney-General’s appeal against sentence should also be dismissed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 341 of 1997

Brisbane

Before Fitzgerald P

McPherson JA

Byrne J

[R v Adams; ex parte A-G]

THE QUEEN

v

GEORGE ADAMS

Respondent

EX PARTE ATTORNEY-GENERAL OF QUEENSLAND

Appellant

C.A. No. 343 of 1997

[R v Adams]

THE QUEEN

v

GEORGE ADAMS

(Applicant) Appellant

REASONS FOR JUDGMENT - BYRNE J

Judgment delivered 21 April 1998

The President's reasons summarize the important facts.
The notice of appeal against conviction contained one complaint: that the verdict was

unsafe and unsatisfactory. The case against the appellant was convincing. It is therefore not surprising that the ground has not been pursued. However, leave has been granted to raise new challenges. All relate to the summing-up, although at the trial no request was made for any redirection.

One contention is that the judge omitted to warn the jury “in appropriate terms of the danger of convicting” in reliance on the evidence of Mr Von Nida. The judge, it is said, was obliged to direct the jury that the complainant was a “potentially unreliable witness”, and to draw attention to matters such as that the complainant and the appellant had an unhappy business relationship; that the complainant's evidence might have been fabricated; and that he had a reason to lie, viz a perception that the appellant's conviction could facilitate the prosecution of civil proceedings to be instituted by the complainant against the appellant. Those and other like considerations with a capacity to bear upon the reliability of the complainant's testimony would, no doubt, have been plain to the jury by the time of the conclusion of the addresses of the prosecutor and defence counsel, if not as the evidence emerged. In other words, the risks of unreliability said to have required warnings by the judge would have been “obvious to the lay mind”[14]. So no warning of the kind suggested was necessary.[15]

[14]            Bromley v The Queen (1986) 161 CLR 315, 324.

[15]              cf Longman v The Queen (1989) 168 CLR 79, 91, 95-96.

Another complaint about absence of a warning concerns the weight to be accorded to some evidence. The complainant testified that, as the appellant left the room, “three thugs entered ... The leader said ‘you shouldn't have threatened an elderly man’ ...”. The jury, it is said, should have been directed that it was dangerous to act on this evidence because the appellant was not present during the incident and therefore was not in a position either to accept or to deny that the words were spoken. But this, too, must have been apparent. It follows that no perceptible risk of a miscarriage of justice arose from the omission to give the suggested instruction.

Next it is complained that the judge misdirected the jury in saying:

“The defence case, on the other hand, is that they submit to you, in respect of the Crown's first approach, that you would not accept the evidence of the complainant in respect of the participation of the accused in what occurred in that room in view of his evidence in respect of other matters which he gave to you. And you would not accept that to the necessary standard to which I have referred. They also submit to you that at the end of the day you would be left in reasonable doubt whether or not the account given to the Police Sergeant in Sydney was correct or not, and therefore would accept that account and acquit the accused person.”

The passage is said to be open to the interpretation that an acquittal depended on an acceptance of the appellant's account to the police, thereby excluding the possibility that the jury might entertain a reasonable doubt on the basis that his story might have been true, even if they were not inclined to accept it.[16] Secondly, it is said that, even though the direction accurately stated the defence case, the judge ought to have told the jurors that they must acquit if they entertained a reasonable doubt about the truth of the complainant's version.

[16]            cf R v Holman [1997] 1 Qd R 373.

The judge had earlier given directions concerning the burden and standard of proof, explaining that conviction depended on proof beyond reasonable doubt of “each and every element” of the offence. Afterwards, in the above passage, he reminded the jury of the defence case, and it is not suggested that his summary misstated its nature. He told them, in effect, that its essence was that the jury should conclude that the prosecution had not established guilt because they would not be satisfied of the reliability of the complainant's story, or else because the appellant's account to the police sufficed to raise a reasonable doubt.

True it is that the judge, apparently adopting defence counsel's choice of expression, spoke of accepting the appellant's account and of acquitting for that reason. In context, however, it clear enough from all that was said that the judge cannot have left the impression that a reasonable doubt could not derive from a consideration of the appellant's version unless the jurors were affirmatively satisfied of its reliability. No elaborate discussion of the second contention is needed; the directions which the judge gave concerning the burden and standard of proof were adequate.

Another complaint is that the direction on unanimity of verdict was inappropriate because it had a potential to mislead the jury into believing that they must not fail to agree on a verdict. What the judge said, and it accorded with the stance taken by the defence, was:

“The verdicts open to you are either guilty or not guilty. There is no scope here for an alternative verdict of any kind. Each of those verdicts, whether it be for guilty or not guilty, must be unanimous. That is the verdict of each and every one of you.”

This is scarcely an instruction that it was not open to the jury to disagree.

There remains the contention that the judge failed to direct adequately as to the

“requirement of proof that each of the elements of the offences was procured by the accused”.
After instructing the jury on the burden and standard of proof, the judge turned to the
elements of the offences. He told the jury that if they were satisfied beyond reasonable doubt that
the complainant had been detained in a building owned by the appellant at Deeral - “and nobody
has suggested you should not accept that” - an offence had been committed. In relation to the
second count, his Honour first defined bodily harm. He mentioned that it had been admitted that
the injuries inflicted constituted bodily harm. After that, the summing-up dealt with the
circumstances of aggravation. It was pointed out that several individuals had been involved in
inflicting the injuries, which proved that the assault was perpetrated “in company”. As to the
allegation those involved in the attack were armed with an offensive weapon, his Honour said
that it was common ground that the men were armed with an offensive weapon - a baton and a
pistol were mentioned - before telling the jury that, if those facts were accepted - “and I stress
nobody has suggested you should not accept them”- they would be sufficient to establish both the
second count and the two charged circumstances of aggravation. The judge then said:

“So in summary, the principal offences are accepted as being committed against the complainant by the assailants, as I will call them. So how does the accused fit into that picture? Because it is not suggested that he was indeed one of the three assailants.

Our law provides ... that where an offence is committed each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it, that is to say every person who actually does the act which constitutes the offence - that would be the three assailants. And further, any person who procures any other person to commit the offence. What is said here by the Crown is that you should be satisfied beyond reasonable doubt that it was this accused who procured those three men to commit the principal offences. And if you were so satisfied beyond reasonable doubt, then you would convict the accused himself of the principal offences despite the fact that he did not actually commit the offences himself ....

The Crown ... submit to you that if you are satisfied beyond reasonable doubt that the complainant's account is correct, that you would have little doubt in concluding the only inference was that the accused was in effect setting the assailants on the complainant as some sort of punishment for real or perceived threats ... Indeed ... they ask you to be satisfied beyond reasonable doubt that the accused had procured the offences alleged in the indictment. (Secondly) ... they say to you, ‘However, the evidence does not end there.’ Even if you had some doubt about the evidence of the complainant they ask you to look at the undisputed evidence of the complainant as to what happened in the room - that is leaving aside the part that they say the accused played: the evidence connecting the accused with the ... men; his admissions that he arranged for four of the men to come from Sydney; that he put them up in his house overnight and that he had them in his house for the meeting; that he hired a car for one or two of them and put two of them up at a hotel motel in Innisfail where he registered under a false name. They ask you to say, in all those circumstances, with that evidence taken together, you could be left with only one inference and that is that the accused was a party to the violence inflicted on the complainant in that room. Indeed, that you could be satisfied beyond reasonable doubt that in all the circumstances he procured that violence and that detention.”

The prosecution case was restricted to a contention that the accused had procured the commission of the offences. The judge did not attempt a definition of “procure”. But the circumstances, especially the nature of the rival cases, did not call for that. To the extent that a complaint is made of that omission, the ground lacks substance. However, the real criticism of the directions relating to “procure” is that the judge failed to alert the jury to the possibility that the accused's conduct may have amounted to procuring “something different to or short of the assault, with all those circumstances of aggravation” (or, in case of the other charge, “something different to or short of deprivation of liberty”).

Generally speaking, an accused cannot procure the commission of an offence without having successfully endeavoured to produce “the essential matters which go to make”[17] it up. Ordinarily, therefore, where the prosecution case is that an accused is criminally responsible on the footing that he procured an offence, the jury will be directed to consider what was done[18] by the principal offender and to compare that conduct and its consequences with what the accused had sought to achieve. Still, in evaluating the adequacy of the directions in this trial, the following related considerations should be kept in mind:

[17]            Yorke v Lucas (1985) 158 CLR 661, 667; cf R v Ancuta [1991] 2 Qd R 413, 417-419; R v T [1997] 1 Qd R 623, 643; R v Jeffrey, C.A. 97/460, unreported, 19 December 1997, per McPherson JA at 6.

[18]            or, in an appropriate case, omitted.

“Every summing-up must be regarded in the light of the conduct of the trial and the questions which have been raised by the counsel for the prosecution and for the defence respectively.”[19] And so “the first matter to be determined is what was the real issue between the Crown and the accused, for the adequacy of a direction is not to be determined in vacuo.”[20]

[19]            R v Stoddart (1909) 2 Cr App R 217, 246, cited approvingly by Brennan and Deane JJ in Barker v The Queen (1983) 153 CLR 338, 368; see also R v Ives [1973] Qd R 128, 135, 139; and R v Tripodina (1988) 35 A Crim R 183, 192-194.

[20]            Ryan v The Queen (1967) 121 CLR 205, 232, per Menzies J, applied in R v Holden [1974] 2 NSWLR 548, 558.

“A plea of not guilty puts all elements of the offence charged in issue and a trial judge is wrong to withdraw any element in issue from the jury, no matter how cogent a Crown case may be. That is not to say that a particular direction must be given as to each element of an offence in a case where no contest as to a particular element is raised in the conduct of the trial and where the evidence does not itself raise an issue as to the existence of that element.”[21]

[21]            Griffiths v The Queen (1994) 69 ALJR 77, 79 per Brennan, Dawson and Gaudron JJ; cf Saad v The Queen (1987) 61 ALJR 243.

“A failure by a trial judge fully to direct the jury about all the elements of an offence does not automatically mean that, in the event of a conviction, there has been a miscarriage of justice. To determine whether there has been a miscarriage, regard must be had to all the circumstances of the case, including the conduct of the trial. As Dixon, Williams, Webb, Fullagar and Kitto JJ observed in Alford v Magee (1952) 85 CLR 437 at 466:

‘... the late Sir Leo Cussen insisted always most strongly that it was of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them. ... He held that the only law which it was necessary for them to know was so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues are. If the case were a criminal case, and the charge were of larceny, and the only real issue were as to the asportavit, probably no judge would dream of instructing the jury on the general law of larceny. He would simply tell them that if the accused did a particular act, he was guilty of larceny, and that, if he did not do that particular act, he was not guilty of larceny.’

To the same effect were the comments of Lord Hailsham of St Marylebone in
R v Lawrence [1982] AC 510 at 519:

‘The purpose of a direction to a jury is not best achieved by a disquisition on jurisprudence or philosophy or a universally applicable circular tour round the area of law affected by the case. ... A direction to a jury should be custom built to make the jury understand their task in relation to a particular case. Of course it must include references to the burden of proof and the respective roles of jury and judge. But it should also include a succinct but accurate summary of the issues of fact as to which a decision is required, a correct but concise summary of the evidence and arguments on both sides, and a correct statement of the inferences which the jury are entitled to draw from their particular conclusions about the primary facts.’”[22]

[22]            Holland v The Queen (1993) 67 ALJR 946, 951-952 per Mason CJ, Brennan, Deane and Toohey JJ; see also R v Jones (1995) 38 NSWLR 652, 655-656; R v Williams (1993) 99 Cr App R 163, 167; and R v Williams (1990) 50 A Crim R 213, 214, 226-227.

It was no part of the defence case that the appellant, if he procured the offenders violently to accost the complainant, might have been seeking to achieve results materially different from the attack actually perpetrated and its consequences. No questions were asked of prosecution witnesses to suggest such a possibility. Nor, it seems clear, did defence counsel in address hint that such a view of the facts might be open. Instead, as has been seen, the defence case was that a reasonable doubt about guilt[23] could be found either in reservations about the complainant's testimony or in the chance that the applicant's statement to the police might have been true.

[23]            in respect of both charges, including, in relation to the assault, the two circumstances of

No criticism has been made of these trial tactics, which is not surprising. For it is not hard to appreciate why the experienced counsel who appeared for the appellant considered that advancing an alternative case along the lines that the appellant might only have tried to bring about a less serious attack may well have diminished the prospects of an acquittal on both charges. After all, the appellant had brought the assailants to the place, and, more importantly, after he discovered what the assailants had done, his subsequent conduct[24] bore all the hallmarks of approbation. Moreover, the decision not to raise the prospect of conviction for a less serious offence was consistent with the evidence, which did not indicate a substantial basis upon which a conviction on a lesser assault charge, might, reasonably possibly, have been available. The appellant had procured the men to be there, obviously intending that they would do their work together, and he knew that one carried a gun. In all the circumstances, unless the appellant's statement to the police raised a question about his guilt, the only reasonable inference was that he had engaged the assailants to occasion at least bodily harm to the complainant while at least one of the men was armed with an offensive weapon.

[24]            apart from the highly implausible account he gave to the police.

In view of the issues raised for the jury's consideration, and as there was no real scope for a conviction of a lesser assault, in my opinion, there was no need for the judge to have troubled the jury with directions canvassing such a fanciful possibility.

It would, it must be said, have been better had the judge stated in his own words those facts needed to establish guilt, and this was not the form the summing-up took. Instead, the judge spoke of the Crown case, mentioning that if the jury were satisfied beyond reasonable doubt that the appellant had procured the assailants to commit the offences, then they would convict him of them, adding that the Crown case was that the jury should decide that the appellant had “procured that violence and that detention” - words referring to the nature and extent of the violence actually inflicted[25] and to the deprivation of liberty associated with the assault. Nonetheless, in my opinion, the jury was not misdirected by this, somewhat oblique, way of identifying the facts that had to be found before a guilty verdict could be justified on either charge. There is, I think, no serious possibility that the jury will have conducted their deliberations other than on the basis that a conviction on the assault charge required proof beyond reasonable doubt that the appellant succeeded in his endeavours to bring about not less than the degree of bodily harm inflicted by the armed assailants. Similar considerations apply to the deprivation of liberty count.

[25]            bodily harm perpetrated in company, armed with an offensive weapon.

Strictly, the direction that no alternative verdict was open was wrong. In point of theory, the accused might have been convicted, for example, of assault occasioning bodily harm without one or other of the circumstances of aggravation. The judge's words were therefore not happily chosen in this respect. But the setting in which they were expressed was, as has been said, that the only practicable alternative to an acquittal of the assault charge, including the circumstances of aggravation, was a verdict of not guilty. Accordingly, in view of the way the defence case was conducted at trial[26], no substantial miscarriage of justice has occurred through this misstatement.

[26]              cf KBT v The Queen (1997) 72 ALJR 116, 119 1st col E-F.

I would dismiss the appeal against conviction.
The maximum sentences for the offences were seven years imprisonment for the

aggravated assault and imprisonment for three years for the deprivation of liberty. The appellant was sentenced to imprisonment for four years in respect of the assault and to two years imprisonment for the deprivation of liberty. After nine months are served, the sentences are to be suspended for four years.

The considerations mentioned by the judge as leading to such lenient sentences were the care which the appellant provided to his sick wife, his own poor health, his age (he was born in 1930), and his prior good character (he not having previously been convicted of any offence). These, it may be accepted, were all mitigating considerations.[27] On the other hand, the offences were bad examples of crimes that are much to be discouraged.

[27]            As to age, see R v Schloss C.A. 98/044, unreported, 20 March 1998, per Pincus JA at pp 3-4.

The assailants initially concentrated their attack on the complainant's head. When he protected his head with his arms, they reigned blows on his ribs, legs and back. After a time, the complainant was ordered to the floor. He was slow to respond, so the men knocked him down. A pistol was held to his temple and he was threatened with death if he moved or later went to the police. A blanket was thrown over his head. He could hear the group cleaning the room with a mop and a hose. There had been blood all around. Outside, a backhoe started operating. The complainant thought it was preparing his grave. There were repeated threats to kill him and his family. He was detained for more than two hours. In the attack, the complainant suffered a fractured mandible, two scalp lacerations, and multiple bruising. He was hospitalized for a week.

The judge's sentencing remarks do not disclose any error of principle. The question then is whether these especially lenient sentences are outside the scope of a proper sentencing discretion.[28] Not without hesitation, I have concluded that they are not so manifestly inadequate as to call for correction.

[28]            R v Melano, Ex parte Attorney-General [1995] 2 Qd R 186.

I would dismiss the Attorney-General's appeal. The appellant's application for leave to appeal against sentence should also be refused.

aggravation.