R v Andreevski
[2010] VSC 568
•30 August 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2009 1670
S CR 2009 0004
S CR 2009 1663
| THE QUEEN |
| v |
| NIKOLA ANDREEVSKI |
| JC |
| JOHN RAY GARCIA |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 August 2010 | |
DATE OF RULING: | 30 August 2010 | |
CASE MAY BE CITED AS: | R v Andreevski & Ors | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 568 | |
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CRIMINAL LAW – Manslaughter – Causing Serious Injury Recklessly – Affray – Submission of no case to answer – Application of Extended Common Purpose discussed – R v Anderson; R v Morris [1966] 2 QB 110 at 120 - Markby v The Queen (1978) 140 CLR 108 - McAuliffe v R (1995) 183 CLR 108.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R. Elston SC with Ms D. Piekusis | Office of Public Prosecutions |
| For the Accused Andreevski | Mr P. Kilduff | Robert Stary Lawyers |
| For the Accused JC | Mr W. Stuart | Galbally & O’Bryan |
| For the Accused Garcia | Mr J. Desmond | Peter Clarebrough & Associates |
HIS HONOUR:
It was submitted on behalf of the accused, Nikola Andreevski, that he had no case to answer on the charge of manslaughter.
It was argued that if it was proved that the accused was party to an agreement to go to Diggers Rest and take part in an affray with the use of weapons, he could not, as a matter of law, be convicted of manslaughter by unlawful and dangerous act.
The crime of unlawful and dangerous act manslaughter is committed when an accused deliberately does an act where a reasonable person in the accused’s position would have realised that he or she was exposing another or others to appreciable risk of serious injury.
It follows that death in such a case is an unintended consequence. It does, of course, follow that the conduct is anything other than conscious, voluntary and deliberate and also intentional.[1]
[1]R v Wilson (1992) 174 CLR 313, R v Holzer [1968] VR 481.
Mr Kilduff of counsel who appeared on behalf of the accused, Andreevski, submitted that this case falls within the situation as described by Gibbs ACJ in R v Markby[2] when his Honour said:
“If the principal assailant has gone completely beyond the scope of the common design, and for example ‘has used a weapon and acted in a way which no party to that common design could suspect’, the inactive participant is not guilty of either murder or manslaughter: R v Anderson; R v Morris [1966] 2 QB 110 at 120 ; [1966] 2 All ER 644.”[3]
[2](1978) 140 CLR 108, R v Anderson; R v Morris [1966] 2 QB 110.
[3]Supra 112.
Particular reliance was placed upon what had been said by the Court of Appeal in R v Anderson and R v Morris,[4] which is set out above by Gibbs ACJ in Markby.[5]
[4][1966] 2 QB 110, 112.
[5]Supra.
It should be noted that the issue which the High Court was obliged to consider in R v Markby[6] was whether manslaughter should have been left to the jury in circumstances where Markby’s co-accused had been convicted of murder. The learned trial judge declined to do so and the Court of Criminal Appeal in New South Wales dismissed Markby’s appeal. The trial judge had, over objection, directed the jury that Markby could only be convicted of manslaughter if his co-accused, the actual killer, had been convicted of manslaughter.
[6](1978) 140 CLR 108.
The facts in Markby may be summarised simply. The two accused had arranged a “drug deal” with the deceased. It was almost certainly their intention to at least rob the deceased. They had with them a rifle to assist in effecting that purpose. The deceased was shot five times. It was the case of the co-accused that he had shot the deceased once, accidentally and that Markby had fired the other four shots. In the case of Markby, who gave evidence, it was the co-accused who fired all five shots into the head of the deceased.
It followed that the co-accused’s defence was that he was guilty of manslaughter, and by implication Markby was guilty of murder. Markby’s case was that he was not guilty of murder but guilty of manslaughter, and that his co-accused was guilty of murder. Markby’s evidence was admissible against his co-accused.
The Crown case was that there existed an agreement between the accused to both rob and kill the deceased. There was no overwhelming inference to be drawn because the lesser agreement to commit a robbery or armed robbery was open. Felony murder had been disavowed by the Crown.
It is important to here set out all of what was said by Gibbs ACJ in Markby:
“It was erroneous to tell the jury that the applicant could be found guilty of manslaughter only if Holden also was guilty of manslaughter and not of murder. When two persons embark on a common unlawful design, the liability of one for acts done by the other depends on whether what was done was within the scope of the common design. Thus if two men go out to rob another, with the common design of using whatever force is necessary to achieve their object, even if that involves the killing of, or the infliction of grievous bodily harm on, the victim, both will be guilty of murder if the victim is killed: R v Lovesey [1970] 1 QB 352 at 356 ; [1969] 2 All ER 1077. If, however, two men attack another without any intention to cause death or grievous bodily harm, and during the course of the attack one man forms an intention to kill the victim, and strikes the fatal blow with that intention, he may be convicted of murder while the other participant in the plan may be convicted of manslaughter: R v Smith (Wesley) [1963] 1 WLR 1200 at 1205–6 ; [1963] All ER 597 R v Betty (1963) 48 Cr App R 6 R v Lovesey 1970 1 QB at 356. The reason why the principal assailant is guilty of murder and the other participant only of manslaughter in such a case is that the former had an actual intention to kill whereas the latter never intended that death or grievous bodily harm be caused to the victim, and if there had not been a departure from the common purpose the death of the victim would have rendered the two participants guilty of manslaughter only. In some cases the inactive participant in the common design may escape liability either for murder or manslaughter. If the principal assailant has gone completely beyond the scope of the common design, and for example “has used a weapon and acted in a way which no party to that common design could suspect”, the inactive participant is not guilty of either murder or manslaughter: R v Anderson; R v Morris [1966] 2 QB 110 at 120 ; [1966] 2 All ER 644. If, however, the use of the weapon, even if its existence was unknown to the other party, is rightly regarded as no more than an unexpected incident in carrying out the common design the inactive participant may be convicted of manslaughter: Varley v R (1976) 51 ALJR 243 at 246 ; 12 ALR 347.”
In the present case, the Crown puts its case on the basis the accused were part of a group which went to Diggers Rest on the afternoon of 8 February 2009 to engage in a fight with a number of young men from that area. It was an arrangement which had been made by the co-accused, Ante Vucak. The group had gathered at Acfold Court, St Albans, the house of co-accused, Timothy Lutze, Nathan Smith and John Roy Garcia. At that address, a number of weapons were gathered together. They included knives, baseball bats, tyre levers and Molotov cocktails. The knowledge each accused had, and for the purposes of this application, the knowledge Andreevski in particular had, in relation to the presence of individual or particular weapons, will be a matter of evidence to be accepted or rejected by the jury.
It was further alleged that the group travelled to Diggers Rest and that 14 young men arrived at the Diggers Rest Recreational Reserve. Three drivers stayed with their vehicles and two witnesses, Zizic and Vodanovic, decided not to participate further. The group then moved across an oval traversing in excess of 100 metres. Some of the group, if not all of them, were armed with various weapons. The group began to run; the order in which they ran is not clear. The accused, Andreevski, described the event as like a scene from “The Last Samurai”.
The question is whether there is evidence from which the jury could conclude that the accused, Andreevski, was party to an agreement which included an unlawful and dangerous act. I have decided it is for the jury to say whether there is sufficient evidence to conclude the accused was party to an agreement, the scope of which included an unlawful and dangerous act. Further, I have decided that the agreement need only be of such character that one of the young men forming the group would commit an unlawful and dangerous act, taken in such context as stated by the Full Court in R v Jensen and Ward:[7]
“As to acting in concert, the law says that if two or more persons reach an understanding or arrangement that a criminal act or acts will be committed by them or by one or some of them, and if while that understanding or arrangement is still afoot and has not been called off, a crime is committed by one or more of them of a kind which falls within the scope of the understanding or arrangement, and if they are all present at the scene of that crime, then they are all equally guilty of that crime, regardless of what part each played in its commission.”
[7][1980] VR 194.
The question of whether an unlawful and dangerous act was within the scope of agreement must be viewed in light of weapons being taken by at least some of the accused. The position of those who chose to cross the oval must be viewed by comparison with Zizic and Vodanovic in particular, who elected to stay with the car.
Insofar as Mr Andreevski in particular is concerned, his friend, Vodanovic, asked him not to go with the group. Andreevski said in his videotaped interview that he first became aware of the presence of weapons whilst he was running across the oval. Given the evidence before the Court in relation to weapons having been seen at Acfold Court, being placed in the car and being taken out of the car, it would be open for the jury to find that the accused, Andreevski, was less than frank when he described events in the record of interview. It was open for the jury to find that an act which was both unlawful and dangerous was within the scope of the agreement to which he had committed himself.
The argument in support of the no case submission was put on another basis.
It was submitted that because Nathan Roberts-Nunan met his death at the hand of Nathan Smith’s deliberate, intentional act accompanied by murderous intent, such act could not be characterised as an unlawful and dangerous act insofar as the accused, Andreevski, was concerned.
In addition or alternatively, it was put that since Nathan Smith caused death by a deliberate and intentional act with murderous intent, there could therefore be no unlawful and dangerous act which had caused death.
The latter submission was based, in part, upon the judgment of the English Court of Appeal in R v Anderson; R v Morris. [8] Lord Parker CJ, who delivered the judgment of the Court, said:
“Mr Caulfield, in his attractive argument, points to the fact that it would seem to be illogical that, if two people had formed a common design to do an unlawful act and death resulted by an unforseen consequence, they should be held, as they would undoubtedly be held, guilty of manslaughter; whereas if one of them in those circumstances had in a moment of passion decided to kill, they would be acquitted altogether. The law, of course, is not completely logical, but there is nothing really illogical in such a result, in that it could well be said as a matter of common sense that in the latter circumstances the death resulted or was caused by the sudden action of the adventurer who decided to kill and killed. Considered as a matter of causation there may well be an overwhelming supervening event which is of such a character that it would relegate into history matters which would otherwise be looked upon as causative factors. Looked at in that way, there is really nothing illogical in the result to which Mr Caulfield points.”
[8]Supra p 120.
It seems to me that was simply another way of saying a co-accused can only be convicted for acts which are within the scope of the agreement reached between the parties. The jury had been instructed, quite erroneously in the case of Morris, that it was open to convict him of manslaughter notwithstanding he had no knowledge his co-accused was armed with a knife, and that he killed the deceased by “an act outside the common danger to which Morris is proved to have been party”.
In his written submission, Mr Kilduff said:
“11. The anomaly in this case is that co-accused Nathan Smith pleaded guilty a crime of specific intent namely, intentional murder and intentionally causing serious injury. It was not manslaughter by unlawful and dangerous act. As such the DPP’s case is misconceived as the subjective intent of Nathan Smith was his, and only his, purpose on the criminal enterprise.
12. The alleged unlawful and dangerous act (affray with weapons) did not kill the deceased or cause serious injury. In other words the cause of death and serious injury was not the unlawful and dangerous act of affray with weapons but the acts of Nathan Smith with the specific intention to kill and do serious injury.
13. As a question of law the fatal act was not an unlawful and dangerous act. As was stated in Hartwick [2005] VSCA 264 at paragraph 39 “it is trite that unlawful and dangerous manslaughter consists of the unintentional causing of death by an unlawful and dangerous act” see also paragraphs 40 and 43. Manslaughter by unlawful and dangerous act is involuntary manslaughter: R v Wilson (1992) 174 CLR 313.
14. The deceased was not killed by an unintentional unlawful and dangerous act but by a voluntary and intentional act. The same reasoning applies to causing serious injury recklessly.
15. The subjective nature of murder is not compatible with and is in contradistinction to the objective test for unlawful and dangerous act manslaughter as stated in R v Wilson (1992) 174 CLR 313, that is be “directed to assess whether a reasonable person, in the appellant's position, would have realised that, in punching the deceased (in this case an affray with weapons), he was exposing him to an appreciable risk of serious injury”: R v Wilson (1992) 174 CLR 313.
16. It is submitted that the DPP cannot prove the objective elements of manslaughter as the test involves transposing Nathan Smith’s intent for murder into manslaughter. In other words, the DPP cannot change the questions of fact and law that Nathan Smith committed subjective murder and then hypothesis objective manslaughter. It is a contradiction of principles regarding the objective and subjective tests to be undertaken by direction given the principal offence was, by admission, carried out subjectively.
17. It is submitted that it is quite clear that the DPP’s case against the accused must inevitably fail as a question of law and the Court should find the accused has no case to answer in relation to Counts 1 and 2.“
I do not accept that anything which was said either in Hartwick[9] or Wilson[10] in relation to the crime of manslaughter being unintentional in the sense that it does not require mens rea. The resultant death is of course an unintended consequence; however that does mean that the act which is unlawful is not an intentional act.[11]
[9](1992) 174 CLR 313.
[10](1992) 174 CLR 313.
[11]See R v Lamb [1967] 2 QB 981.
If it could be demonstrated that accused joined an enterprise, here affray, in which they foresaw the possibility of death or serious injury, then they could each be convicted of murder.[12] The Crown has, quite appropriately in this case, chosen to proceed for manslaughter and affray.
[12]See McAuliffe v R (1995) 183 CLR 108, Clayton & Ors v R (2006) 168 ACrimR 174.
It is not the law that murderous intent excludes an unlawful and dangerous act.
A conscious, voluntary and deliberate act causing death with murderous intent is an unlawful and dangerous act. It comes with the additional element, namely, the intent to cause death as the law understands it.
When manslaughter is talked about as involuntary, it means no more than an accused being held responsible for a death not including that last subjective element, the intention to kill or cause really serious injury. The deliberate act of an accused, with intent less than murderous intent, is punishable as manslaughter when such act is objectively dangerous.
The mere fact that the intent of a co-accused, here Nathan Smith, can be said to be greater than that of any other accused offers no excuse unless the jury are satisfied that the Crown has failed to prove that a deliberate act which was dangerous was within the understanding of the group, or more particularly, within the understanding of an individual accused.
In these circumstances, the greater does not exclude the lesser; that was in fact the whole point of what the High Court decided in Markby v R[13].
[13]Supra.
It should be observed that even if Nathan Smith had stood his trial, it is most likely that manslaughter by unlawful and dangerous act would have been left to the jury on the basis that there may have been a reasonable doubt about intention to cause death or really serious injury. In that way, it would have been seen that at the very least the conduct of Nathan Smith was both unlawful and dangerous.
Mr Stuart, who appeared for JC in the trial, submitted that the submissions put by Mr Kilduff were largely misconceived, and I think that is so.
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