R v Bernard Francis Schutze R v Carolyn May Cornelius Nos. SCCRM 94/417, 94/437 Judgment No. 4903 Number of Pages 13 Criminal Law and Procedure

[1994] SASC 4903

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1) MOHR(2) AND LANDER(3), JJ

CWDS
Criminal law and procedure - particular offences - murder - common purpose to administer beating - evidence insufficient to prove common purpose to cause death or grievous bodily harm - verdict of murder reduced on appeal to manslaughter.

Criminal law and procedure - jurisdiction, practice and procedure - judge' s summing-up - Joint trial - allegation by one accused in interview with police that co-accused stated the he intended to kill - no other evidence of such intention - general warning as to use of statements by co-accused - need for warning specifically directed to such highly prejudicial statement - risk that verdict influenced by the inadmissible material - verdict of murder reduced on appeal to manslaughter.

Criminal law and procedure - evidence - confessions and admissions - Admissions made to police before formal arrest - accused not informed of rights - whether conduct of police amounted to apprehension for purpose of s79a Summary Of fences Act 1953 - no infringement of section - refusal to exclude admissions from evidence upheld on appeal. Summary Offences Act 1953 s79a. R v Conley (1982) 30 SASR 226 at pp239-240; R v Lavery (1978) 19 SASR
515 at p516 and R v Webb and Hay (1992) 59 SASR 563 at p571, applied.

HRNG ADELAIDE, 5-6 December 1994 #DATE 23:12:1994

Counsel for appellant Schutze:     Miss E F Nelson QC with
   Ms E M Griffith

Solicitors for appellant Schutze:    Elizabeth M Griffith

Counsel for appellant Cornelius:     Mrs M E Shaw with
   Mr R T Kane

Solicitors for appellant Cornelius: Robert T Kane

Counsel for respondent:             Mr B J Jennings QC

Solicitors for respondent:         DPP (SA)

ORDER
Appeals allowed.

JUDGE1 KING CJ These appellants have appealed to the Court of Criminal Appeal against convictions by verdict of a jury in the Supreme Court of the crime of murder.

2. The deceased, Christopher Eames, lived in unit 5, 30 Linwood Crescent, Wynn Vale. He was 27 years of age. He weighed 50 kilograms and was 5 feet 4 inches tall. In the late evening of Sunday 28th November 1993, a neighbour Craig Whatmore, went to the deceased's unit and there found his dead body.

3. At post mortem it was ascertained that the deceased had suffered thirty-three injuries to various parts of the body, the injuries being consistent with an extensive beating. There were some injuries to the head. The most serious injury was a compound fracture of the skull associated with a long gaping laceration 8 centimetres in length and gaping to 1.6 centimetres across. The injury was caused by severe contact between the head and a blunt object. That injury was the cause of death.

4. On 3rd December 1993 Detectives Keane and Yelland conducted an audio/visual interview with the appellant Cornelius. She said that her date of birth was 20th April 1964. She told the police that the appellant Schutze was responsible for the deceased's injuries. She said that Schutze had said that he was going to teach the deceased a lesson for "sticking needles and stuff into his arm." That was a reference to an incident which had occurred about a month before. She said that when speaking of teaching the deceased a lesson, Schutze was in an aggressive mood and struck her. This occurred in the early hours of Saturday 27th November. She telephoned the deceased on the pretext of discussing a car jack which belonged to her but which the deceased was holding. This, she said, was a pretext in order to ensure that the deceased was at home. About 5.15 am, Schutze and Cornelius, according to her account to the police, left the house which she occupied with a man by the name of Craig Willmott and set out in a motorcar for Eames' house. Schutze was abusive and violent to her on the journey. On arrival she knocked on the door while Schutze hid around the corner of the house. When the deceased opened the door they both walked in. The deceased picked up a piece of wood and came towards Schutze. Schutze wrested the piece of wood from him and began to beat the deceased. Cornelius left the room while Schutze was beating the deceased. Following the beating Schutze and Cornelius searched the house and removed the car jack and some drugs. Cornelius wiped the doorhandle and door. They then returned to Cornelius' house with the piece of wood in a bag and also the jack. At Schutze's direction, Cornelius burnt the bag, the piece of rag and the piece of wood. On the Monday evening she and Schutze took the partly burnt piece of wood and dumped it on the side of a dirt road past Gawler.

5. Following the interview with Cornelius, Detectives Keane and Yelland and another police officer travelled with her in a car to an area which Detective Keane described as "the other side of Gawler, a place called Concordia." The police recovered a burnt piece of wood indicated by Cornelius which was in the grass verge off a dirt road. They then went to Maloney Road, Virginia, where Cornelius indicated a car jack in some thick grass off the road. They then returned to Cornelius' house at 6 Travis Court, Salisbury East.

6. At about 9.15 pm on that same day Detective Keane and five other police officers proceeded to Schutze's address at unit 33, 15 David Street, Mitchell Park. As a result of the information furnished by Cornelius, they intended to arrest Schutze. As the statement of Cornelius appeared to indicate that Schutze was a violent type of person, it was decided that six police officers should attend to cope with any violence and to ensure that Schutze did not depart. While the police officers were in the vicinity, Schutze drove into his driveway. Detectives Keane, Yelland and Couch approached his car. Keane's evidence of what took place is as follows:
    "I said 'Bernard Schutze?'
    He said 'Yes.'
    I said 'We are police officers from the Major Crime Task
    Force. Rather than talk out here, do you mind if we go
    inside?'
    He said 'Sure I will just lock the car up first.'"

7. Schutze then locked up the car and went into the house with the police officers. The following conversation there took place:
    "I said 'As I said before Bernie, we are police officers
    from the Major Crime Task Force. My name is Keane. This
    is Detective Yelland and this is Detective Sergeant Couch.'
    He said 'Hi.'
    I said 'We are making enquiries in relation to the murder
    of Christopher Eames at his unit at Wynn Vale on or about
    27 November this year.
    I said 'Firstly, I advise you that you are not obliged to
    answer any questions that I ask you, but anything you say
    will be taken down and given in evidence. Do you
    understand that?'
    He said 'Yes, but that sounds a bit heavy. I can't tell
    you anything anyway.'
    I said 'Do you know Christopher Eames, the man that was
    murdered?'
    He said 'I know a Chris that lives over Salisbury way.'
    I said 'Do you know a Carolyn Cornelius?'
    He said 'Yes, I know Carol very well.'
    I said 'We have received information that you and Carolyn
    Cornelius went to Chris Eames's unit last Saturday morning.
    She knocked on the door and after Chris let her inside you
    followed her in and then bashed Chris Eames with a lump of
    wood.'
    He said 'No way.'
    I said 'Do you deny going to Chris's unit with Carol last
    Saturday?'
    He said 'I really don't know what you are talking about.
    Who said this about me anyway?'
    Detective Yelland said 'Look Bernie, we interviewed Carolyn
    this afternoon and she has given us the complete story
    about what happened at Chris's last Saturday.'
    He said 'What did she tell you?'
    Yelland said 'Like I said, she has given us the complete
    story from the time you parked in the church car park
    across the road from Chris's, until you left taking the
    lump of wood with you in a sports bag.'
    He said 'Hang on a minute, we went to Chris's and the door
    was already open. We went inside and found him lying in
    the bedroom with blood all over him. We took off out of
    there.'
    I said 'Bernie, as Detective Yelland has said, Carol has
    told us exactly what happened. We have even recovered the
    lump of wood that was used and which is now partially
    burnt.'
    He said 'I can't believe that Carol would have told you all
    this. Can I read what she has said?' Detective Couch then
    said 'We can't show you at this time because it is all on
    videotape, but you will get to see it is time.'
    I said 'Bernie, it is true. We even know that Carol burnt
    the bag, rags and lump of wood in the sandpit in the back
    yard, but the wood didn't burn completely and the two of
    you threw it away off a dirt road on the other side of
    Gawler.'
    He said 'You obviously know it all.'
    I said 'Yes, we do.'
    He said 'Okay then, it was self defence. He came at me
    with a lump of wood and I took it off him. I guess I just
    lost it a bit.'
    I said 'What do you mean "you lost it"?'
    He said 'I don't know. I'd had some whizzy and I was out
    of it a bit.'
    I said 'What happened when you took the lump of wood away
    from Chris?'
    He said 'I just started hitting him. It was me or him.'
    Couch then said 'How many times do you think you hit him?'
    He said 'No idea, quite a few I suppose.'
    Couch said 'Did Chris hit you at all?'
    He said 'No, I took the lump of wood off him and got him
    first.'
    I said 'Where did you hit Chris?'
    He said 'All over.'
    I said 'Bernie, you are now going to be arrested and
    detained on suspicion of the offence of murder of
    Christopher Eames of Wynn Vale. Do you understand that?'
    He said 'Yes, I guess so. What happens now?'"

8. The case for the prosecution against Schutze, in addition to the interview to which I have referred, consisted of evidence of admissions alleged to have been made to three witnesses named McLaughlin, Torr and a Sylvia Tasker.

9. McLaughlin lived in a unit which was adjacent to that occupied by Schutze. On the Friday evening the 26th November 1993 McLaughlin went with Schutze to Cornelius' house. He said that the discussion prior to Schutze and Cornelius setting out for the deceased's unit was to the effect that the purpose of going to the unit was to retrieve the car jack which the deceased would not return. McLaughlin said that Schutze and Cornelius returned to the house about an hour after their departure. Cornelius had two white bags in her hands. In Schutze's presence, Cornelius said "that Bernie might have gone too far." Schutze also said that "He might have gone too far." Schutze added "He got what he deserved." McLaughlin saw the car jack. There was a subsequent conversation in the kitchen when Schutze, Cornelius and Craig Willmott and McLaughlin were present. McLaughlin's account of that conversation appears in the following passage from his evidence.
    "Q. Can you tell the court, as best you can, what you were
    being told and by whom.
    A. Well, not really so much by whom, but they sort of, the
    conversation with each other led to the point of Carol
    going to the door and knocking on the door, Chris answering
    the door but without actually opening it, and she requested
    the jack and she was politely told to 'Fuck off', and then
    came to the door actually being opened and he started being
    aggressive towards Carol, not physically - he started being
    aggressive towards Carol but not physically, and he
    continued to tell her to 'Fuck off' and everything else.
    Then Bernie approached the doorstep and Chris went back
    inside, Bernie followed him inside.
    Q. Did Mr Schutze say what had happened inside.
    A. Apparently, Chris was going for some form of stick or
    club that was in his house and that Bernie got to it first
    and then Chris was in his bedroom on his bed when Bernie
    saw him next.
    Q. Did Bernie say what he did.
    A. He had beaten him up with it.
    Q. Beaten him up with.
    A. The club or stick.
    Q. Did he say whereabouts he'd hit him.
    A. All over.
    Q. Did he specify any particular areas.
    A. Head, groin, knees, everything.
    Q. Did either of them say what room of the house this had
    occurred in.
    A. Bedroom.
    Q. If I could go back a step. You said that Carol had gone
    to the front door. Did either of them say where Mr Schutze
    was when Carol had gone to the front door.
    A. A couple of metres behind her.
    Q. Did either of them at that stage say what state this
    Chris was in when they left.
    A. He was messed up.
    Q. Did they say how messed up.
    A. They just said messed up.
    Q. Did either of them at that stage say why it had
    happened.
    A. Basically, because of Bernie being annoyed with the way
    Mr Eames was going at Carol.
    Q. Who said that, do you remember.
    A. Bernie, from memory.
    Q. You've used the words 'going at Carol'.
    A. Abusing her.
    Q. Did you understand that, from what you have indicated
    earlier, to be verbal.
    A. Verbal."

10. A witness Michael John Torr was a friend of the witness Sylvia Tasker. He gave evidence that he was visiting Miss Tasker on the Saturday evening the 27th November when Schutze visited her home. Schutze "said that he had a bit of an argument with this other bloke." Torr said he was not really paying much attention to the conversation because he "just didn't really want to listen to the conversation." He recalled however that Schutze said "that he had a fight with this bloke and that some lady rang him up, or something like that, and said that she was having a few problems or whatever so he went around there, or something." Schutze said that he didn't know whether the other person was hurt. Torr added "I didn't really want to hear much about it, you know."

11. Sylvia Tasker had known Schutze for about twelve years. Some little time previously Schutze had told her of an incident when he had been tied up and injected with drugs. That was associated with a conversation about Cornelius. She said that when Schutze came to her house on the Saturday evening he related an incident which he said occurred the night before. The witness recounted what Schutze had said as follows:
    "A. He told me about a friend of his, Carol, who had rung
    him up because - I can't remember if it was Carol had rung
    him or Carol's boyfriend that had rung him - about her
    having some problems with the man that got bashed and that
    in this phone call he got he was asked to come round and
    help them out and that he had gone round there and bashed
    this person. He said he had used a stick. He said that he
    hadn't killed him, but that he bashed him so he wouldn't be
    able to talk, wouldn't be able to dob him in.
    Q. Did he say where he hit him.
    A. Over the head.
    Q. Did he say if it was once or more than once.
    A. He didn't say how many times, but it had to have been
    more than once, because he told me that the bloke had guts
    because he told him while he was bashing him to get fucked,
    and apparently he had said that twice to him while he was
    bashing him.
    Q. You said that he said he hit him over the head. Did he
    say what he hit him over the head with.
    A. He used a stick, a piece of wood.
    Q. Did he describe this piece of wood.
    A. No.
    Q. Did he say how big it was.
    A. He made a gesture with his hands, but.
    Q. Can you give us some idea of the size.
    A. (INDICATES) that was about it.
    HIS HONOUR
    Q. About a metre.
    A. No, not quite."

12. The witness corrected the estimate of a metre to two and a half feet.

13. The prosecution case against Cornelius consisted of the audio/video interview to which I have referred above and to the admissions alleged to have been made to McLaughlin, together with the recovery of the piece of wood and car jack from the sites indicated by her.

14. Neither Schutze nor Cornelius gave evidence.

15. Counsel for Schutze objected at the trial to the admission of the evidence of the interview with the police at his home. His counsel contended that the conversation was involuntary and that, if voluntary, it ought to be excluded in the exercise of the judge's discretion for failure by the police to comply with s79a of the Summary Offences Act 1953. There was hearing in the absence of the jury on the voir dire. Schutze in evidence on the voir dire gave a version of events at the house which was very different from that given by the police officers. The learned judge found that Schutze was not a credible witness and rejected his account. He accepted the account given by the police officers as to what occurred at the house and I have recounted that in substance earlier in these reasons. The learned judge held that that conversation was voluntary. He held that Schutze had not been apprehended within the meaning of s79a prior to the conversation. There was therefore no basis for the exercise of a discretion to exclude the evidence. His Honor indicated, however, that even if he had considered that there had been an apprehension, he would have exercised his discretion in favour of admitting the evidence.

16. The argument of Miss Nelson QC on the appeal focussed upon the s79a point. She contended that, although there had been no formal arrest, what occurred in the driveway of the house amounted to an apprehension of Schutze and that the police were thereupon bound by s79a to accord him the rights stipulated in that section and in particular to inform him that he was entitled to have a solicitor present during any interrogation. She stressed that that was of particular importance in this case because, when Schutze was acquainted of this right subsequently at the police station, he declined to answer further questions until his solicitor was present, and, upon receiving legal advice, declined to answer further questions.

17. I have stated in previous cases the principles which I believe to be applicable to determine, absent a formal arrest, whether a person has been apprehended within the meaning of s79a and I set out the relevant passages from those cases:
    "A person is apprehended for the purpose of (the Summary
    Offences Act) when he is deprived of his liberty by a
    police officer irrespective of whether formal words of
    arrest are used. Frequently a police officer invites or
    requests a suspect to accompany him to a police station or
    to some other place for the purpose of pursuing police
    enquiries and the suspect voluntarily complies. Such an
    invitation or request does not amount to deprivation of
liberty (The Queen v. King (1978) 19 SASR 118, per King J.
    at pp 128-129), even though the police officer would have
    made an arrest if the suspect had not complied and even
    though the suspect believed that that would be the result
    of non-compliance. If, however, the circumstances are such
    that the words uttered, although in form an invitation or
    request, would in the circumstances convey to a reasonable
    person that he had no genuine choice as to whether to
    accompany the police officer, it becomes incumbent upon the
    police officer to make it clear that the suspect is not
    under arrest and is free to refuse to accompany him, and,
    in the absence of such an intimation, the apparent
    invitation or request may constitute an apprehension." The
Queen v Conley (1982) 30 SASR 226 at pp239-240.

"A suspect may, voluntarily and without constraint, accede
    to a police officer's request to accompany him and, if he
    does so, there is of course no interference with his
    liberty. This is so even if he goes reluctantly out of
    respect for authority or fear that a refusal will be
    construed as an indication of guilt or some other similar
    motive. The suspect's liberty is not under restraint
    simply because the police officer would or might arrest him
    if he were to exercise his right to depart or to refuse to
    accompany the police officer." The Queen v Lavery (1978) 19

    SASR 515 at p516.

"The test is whether the actions of the police would have
    induced a reasonable person in the position of Webb and did
    in fact induce Webb to suppose that he was not free to
leave." R v Webb and Hay (1992) 59 SASR 563 at p571.

18. There was no formal arrest. The police officers did not utter any words to indicate that Schutze was under any form of restraint as to his movements or actions. The only request was for him to accompany the police officers into the house for convenience of conversation, a request which he readily acceded to. He was not placed under physical restraint. He remained to lock his car before complying with the request. It is true that the police officers intended to arrest him upon the basis of the information supplied by Cornelius, although, I suppose, they might have been dissuaded from that course if he had produced an explanation, such as an apparently credible alibi, which required further investigation. Schutze's willingness, however, to speak to them in the house without constraint, made it unnecessary for them to effect an arrest. It was prudent to defer doing so until they had heard what he had to say. The question in those circumstances is whether a reasonable person in Schutze's situation would have considered that he was under apprehension in the sense that he was under the control of the police officers so as to be deprived of freedom of action and movement.

19. Miss Nelson contended that the mere presence of six police officers in or near the driveway was sufficient in itself to convey to a reasonable person that he had been deprived of his liberty. She also contended that in the circumstances the request to go into the house was itself an interference with Schutze's freedom of movement. I do not think that the fact that a person is approached by a police officer or a number of police officers is an indication that that person is deprived of liberty. Police officers would be placed in an impossible position if they could not even speak to a suspect without acquainting him of his rights under s79a. To constitute an apprehension, there must be more than a mere approach to a suspect by a police officer or a number of police officers. I do not think that the request to go into the house adds much of significance to the situation. It was merely a request to go from one part of the appellant's premises to another for convenience of conversation. Perhaps if the request had been to accompany the police to a police station or even to some other place to continue the investigation, it might have been incumbent upon the police officers to indicate expressly to the appellant that he was not under arrest and therefore not obliged to accompany them. I do not think that the mere request to move for convenience from the driveway to the house gave rise to that necessity. From the police evidence, which was accepted, Schutze appeared to be quite willing to speak to the police and for that purpose to accompany them into the house after locking his car. There was no indication from his words or actions that he felt that he was under constraint.

20. I consider that the learned trial judge came to the correct conclusion and that the evidence was properly admitted.

21. Miss Nelson on behalf of Schutze called a witness Tracey Parker at the trial. Certain evidence which she sought to lead from Tracey Parker was objected to by counsel for the prosecution. The learned judge heard the evidence in the absence of the jury and ruled it to be inadmissible. That ruling was challenged on the appeal.

22. Tracey Parker was a neighbour of the deceased. Her evidence was that at about 6 pm on Friday 26th November the deceased came out of his house and said "I've been ripped off. I think I know who it is. I will catch you later." He then went off in his motorcar.

23. Miss Nelson argued that this evidence was admissible as tending to show that some person other than Schutze had a motive for killing the deceased. It was possible, so the argument ran, that Schutze did not inflict the fatal head wound but that some other person came to the deceased's house after the beating administered by Schutze and killed the deceased by inflicting the head wound. Tracey Parker's evidence, so it was argued, showed that the deceased had left his house that evening believing that he had been ripped off. It was argued that that gave rise to an inference that he might have confronted some person in connection with the believed rip off and that what occurred may have given that person a motive to visit him later and inflict the fatal wound.

24. I think that that scenario is too fanciful at each point to provide the evidence with any relevance to the issues in the case. There was not the slightest indication in the evidence of any other person being involved in inflicting injuries on the deceased. The notion that some other person might have come along after Schutze had dealt with him and inflicted the fatal wound is really quite fanciful. Moreover the mere departure of the deceased from his house in the belief that he has been ripped off does not provide any basis for an inference that anything occurred which would provide a motive to some unknown person to visit him later and to kill him. I think that the evidence was rightly rejected.

25. The appellant Schutze sought leave from this Court to appeal on a ground in respect of which leave was refused by the single judge. The ground is that "the learned trial judge erred in failing to direct the jury as to the Crown's failure to call a material Crown witness Craig Willmott which failure might give rise to an inference adverse to the Crown." Craig Willmott was in prison at the time of the trial. At the time of the incident which is the subject of the charges he was living in a de facto relationship with the appellant Cornelius. The decision as to whether to put a witness before the Court as a credible witness is a decision which must be made by counsel for the prosecution. The prosecution may well have doubted whether Willmott would be prepared to give truthful evidence if that evidence implicated the appellants. There was no reasonable basis for any inference adverse to the case for the prosecution on the failure of the prosecution to call Willmott. Leave to appeal on this ground should be refused.

26. Miss Nelson applied to the trial judge for an order that the two accused be tried separately. She based her application in particular upon the fact that a joint trial would mean that Cornelius' interview with the police, although not evidence against Schutze, would become known to the jury and that it contained material which was very prejudicial to her client. The learned judge refused the application.

27. Miss Nelson challenged that ruling of the learned trial judge before us and contended moreover that the disclosure to the jury, in consequence of the joint trial, of Cornelius' interview containing material prejudicial to Schutze, particularly in view of the fact that Cornelius did not give evidence, produced a miscarriage of justice.

28. The reasons of principle and policy which dictate that persons charged with committing an offence jointly should ordinarily be tried together are fully discussed in a number of recent cases including R v Demirok (1976) VR
244; R v Gibb and McKenzie (1983) 2 VR 155; R v Collie, Kranz and Lovegrove
(1991) 56 SASR 302 especially at 307-311; R v Webb and Hay (1992) 59 SASR 563; and Webb and Hay v R (1994) 68 ALJR 582 per Toohey J at 606. The joint trial necessarily resulted in the jury learning of what Cornelius told the police although that was not evidence admissible against Schutze. It is necessary to consider whether in all the circumstances of the case that resulted in a miscarriage of justice.

29. The potential for prejudice arising out of the Cornelius interview was greatly diminished by the fact that much of the ground covered in that interview was covered to substantially the same effect in Schutze's interview with the police and in what he said to others according to the uncontradicted evidence of McLaughlin, Torr and Sylvia Parker. Such prejudice as remained fell to be dealt with by an appropriate direction from the learned trial judge.

30. During the course of the evidence of Mr McLaughlin the learned judge gave the jury the following direction:
    "That is right, ladies and gentlemen. I will say to you
    now, if you don't already know, that anything said by one
    accused in the absence of the other is only admissible
    against that accused. So, anything said by Miss Cornelius
    in the absence of the accused Schutze is only evidence
    against her: likewise, anything said by the accused Schutze
    in the absence of the accused Cornelius is only admissible
    against him. I will repeat that to you when I sum up."

31. In the course of the summing up His Honor said:
    "It is convenient here for me to remind you yet again that
    anything said by Cornelius in the absence of Schutze is not
    evidence against him; that is, the police interview of
    Cornelius and McLaughlin's evidence when Schutze was not
    present is not evidence against him."

32. With one important qualification which I shall shortly mention, I think that those directions were adequate to the circumstances of the case. It would not have been in Schutze's interests to have highlighted parts of Cornelius' statement which incriminated him and to have given specific warnings concerning them. The qualification relates to the portion of the interview in which Cornelius attributes to Schutze the statement that he went to the deceased's house with the intention of killing him. The actual passage in the record of the interview is as follows:
    "A. Bernie said to me last night, I think it was last - I'm
    pretty sure it was last night ... that he did have
    intentions of going up there to kill Chris.
    Q. He did - he said that to you did he.
    A. Yeah, and I just couldn't believe like um -
    Q. Where did this conversation take place.
    A. In front of my place, like he's trying to get me to go
    with him last night but -
    Q. This is Thursday night.
    A. ... yeah.
        ...
    Q. That's what Bernie suggested. But he did tell you last
    night that he intended - he went there with the intention
    of killing Chris.
    A. Yeah. I don't know whether he meant it or it was just -
    got this trip like um ..."

33. Those passages were the only evidence in the case indicating that Schutze went to the deceased's house with the intention of killing him. The statements made by Schutze to McLaughlin and Sylvia Parker indicated rather an intention not to kill the deceased but to beat him not necessarily causing him grievous bodily harm. So far as the evidence went, the appellants went to the deceased's house without a weapon. Schutze is a big burly man and the deceased was short and slight. A weapon would not have been necessary to administer a beating.

34. I think that this sole indication of an intention to kill is highly prejudicial to Schutze. In my opinion it called for a strong and specific warning against using it as evidence against Schutze. The learned judge contented himself with the general warnings to which I have referred and made no specific reference to this piece of highly prejudicial evidence. If the jury allowed themselves to be influenced by it, it might have made the difference between the verdict of guilty of murder and guilty of manslaughter. I have reached the conclusion that the summing up, whilst in other respects wholly adequate, was defective in its failure to warn the jury specifically against the danger of using that part of the Cornelius interview against Schutze.

35. For that reason I consider that the verdict of guilty of murder must be regarded as unsafe. It is true that the blow to the head was a severe injury which itself could give rise to an inference of an intention to do grievous bodily harm. A man of the strength of Schutze, however, might misjudge the degree of injury which might be caused by a blow to the head. I do not think that it is conclusive of an intention to do grievous bodily harm. The danger that the jury was influenced by the evidence which was inadmissible against Schutze is too great to be ignored.

36. The evidence that Schutze was guilty at least of manslaughter was overwhelming. He had a fair trial in every respect other than the deficiency in the summing up to which I have referred and which bears only on the question whether the verdict should be murder or manslaughter.

37. I do not think that a retrial on the charge of murder would be justified. There are strong indications in the evidence that Schutze went to the house not with the intention of killing or necessarily causing grievous bodily harm, but with the intention of beating the deceased. I think that the death was unintended and that, excluding the inadmissible evidence to which I have referred, the evidence points to manslaughter rather than murder. I do not think that a retrial on the charge of murder would be justified.

38. In my opinion Schutze's appeal should be allowed, the verdict of guilty of murder should be set aside and there should be substituted a verdict of guilty of manslaughter.

39. Mrs Shaw who appeared for Cornelius argued in support of a number of grounds of appeal against her conviction. One such ground was that "the learned judge failed to adequately identify the evidence admissible against the appellant Cornelius and failed to adequately identify the evidence which was inadmissible against her." The judge did in fact identify in the course of the summing up the evidence which constituted the case against Cornelius. In particular he identified the evidence which indicated the common purpose to beat up the deceased. In that analysis of the evidence he made no reference to any evidence which was inadmissible against Cornelius. I have already referred to his general warning against using statements made in the absence of an accused against that accused. I see no substance in this complaint.

40. A further ground of complaint was that the learned judge wrongly admitted evidence of the incident which occurred in October when Schutze was tied up and injected with a drug. This incident was referred to by Cornelius in her interview with the police. Evidence was admitted from a witness Jane Humphreys as to what had occurred. Both Cornelius and the deceased had participated in the incident and there were indications that Schutze held the deceased responsible in some way for the injection of drugs into him against his will. The prosecution relied upon this incident as the motive for and the explanation of the attack on the deceased on the night of his death. The evidence was clearly admissible and was not objected to by either counsel at the trial. In the course of the summing up the learned judge discussed this incident in terms of motive and I do not think that any further direction was required.

41. A further ground of appeal is "that the learned judge failed to adequately direct the jury as to the use they could make, in the case against the accused Cornelius, of statements made in her presence and of conversations to which she was allegedly a party." Mrs Shaw particularly related this ground of appeal to evidence of McLaughlin as to what was conveyed to him about the events which had occurred at the deceased's house. McLaughlin's evidence was to the effect that Schutze and Cornelius were both present at the conversation and that, while he could not distinguish between what was said by one rather than the other, Schutze and Cornelius were jointly conveying to him what occurred. I do not think that any further direction was required.

42. Leave was refused by the single judge with respect to a ground which complained that the judge had failed to put the defence case adequately. There is no justification for that complaint and leave should be refused by this Court also.

43. Leave to appeal was also refused on the ground complaining that the conviction of murder was unsafe and unsatisfactory. It seems to me, however, that the evidence indicated a common design to administer a beating to the deceased and not necessarily cause him grievous bodily harm. There was no evidence of any common design to kill him. Just as the conviction of Schutze should be for manslaughter rather than murder, so the conviction of Cornelius should be reduced to manslaughter.

44. I would grant leave to appeal on Ground 1, I would allow the appeal, set aside the conviction and substitute therefor a conviction for manslaughter.

JUDGE2 MOHR J I agree.

JUDGE3 LANDER J I also agree that the appeals ought to be allowed, the convictions set aside and convictions of manslaughter substituted in each case.