R v Childs - [2007] SASC 195

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CHILDS
[2007] SASC 195
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice Kelly)
30 May 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
Full Court agrees to consider application for permission to appeal - permission to appeal previously refused by single Judge of the Supreme Court - hearing of application treated as hearing of appeal - appellant granted permission to amend Notice of Appeal and granted an extension of time - Notice of Appeal raised two substantive grounds.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - JOINT TRIAL OF SEVERAL PERSONS
First substantive ground of appeal - whether trial Judge erred in law by directing jury to convict the co-accused upon her plea of guilty - trial Judge's direction exceeded scope of Judge's entitlement to direct jury that, as a matter of law, they should return a verdict of guilty - error of trial Judge did not result in miscarriage of justice - trial Judge's direction as to guilt of the co-accused had no effect on regularity or fairness of appellant's trial.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - WHERE GROUNDS FOR INTERFERENCE WITH VERDICT - PARTICULAR CASES - WHERE APPEAL ALLOWED
Second substantive ground of appeal - whether trial Judge erred in law in directing jury on significance of evidence that the appellant was intoxicated - discussion of significance of common law principles relating to intoxication - effect of s 268 of the Criminal Law Consolidation Act 1935 (SA) on common law principles - trial Judge's failure to direct jury in terms of manslaughter by dangerous act did not give rise to a miscarriage of justice - trial Judge's direction on effects of intoxciation on formation of basic or specific intent to commit murder contained a significant error - error gives rise to the possibility of a miscarriage of justice.
Held: Permission to appeal granted - time for filing Notice of Appeal extended - appeal allowed - conviction set aside - re-trial ordered.
Supreme Court Criminal Appeal Rules 1996 (SA) r 15(4); Customs Act 1901-1975 (Cth); Criminal Law Consolidation Act 1935 (SA) s 23, s 267A, s 267A(1), s 268, s 268(3), s 269(1); Acts Interpretation Act 1915 (SA) s 19(1)(c), referred to.
R v Brooks & Childs (2006) 95 SASR 369; R v Brooks [2007] SASC 35; Yager v The Queen (1997) 139 CLR 28; Jackson v The Queen (1976) 134 CLR 42; R v Douglass (2004) 9 VR 355; Director of Public Prosecutions v Stonehouse [1978] AC 55; Gent (1989) 89 Cr App R 247; R v Wang [2005] 1 WLR 661; R v Caley-Knowles; R v Jones (Iorwerth) [2007] 1 Cr App R 197; Meissner v The Queen (1995) 184 CLR 132; R v Pugh (2005) 158 A Crim R 302; The Queen v O'Connor (1980) 146 CLR 64; The Queen v Tucker (1984) 36 SASR 135; Wilson v The Queen (1992) 174 CLR 313; Weiss v The Queen (2005) 224 CLR 300; R v Lowery & King (No 2) [1972] VR 560, considered.

R v CHILDS
[2007] SASC 195
Court of Criminal Appeal: Doyle CJ, Vanstone and Kelly JJ

DOYLE CJ and VANSTONE J: Mr Childs was tried before a Judge of this Court and a jury on a charge of murdering Mr Anderson on 26 January 2005. He was jointly charged with Ms Brooks.
On the fourth day of the trial Ms Brooks, at her request, was re-arraigned. She pleaded guilty. The jury returned a verdict of guilty.
The trial proceeded against Mr Childs alone. He was found guilty.
Mr Childs appealed against his conviction. A Judge of this Court treated each of the five grounds raised by him as not raising “a question of law alone”. The Judge refused to extend the time for the lodging of the Notice of Appeal (it was several weeks late) and refused permission to appeal.
Mr Childs requested, pursuant to r 15(4) of the Supreme Court Criminal Appeal Rules 1996, that the application for permission to appeal be considered by the Full Court. The Full Court heard the application, directing that the hearing of the application be treated as the hearing of the appeal if it decided to extend time and to grant permission to appeal.
On the hearing of the appeal, the Court allowed Mr Childs to amend his Notice of Appeal to add one further ground. Mr Hinton QC, counsel for the Director of Public Prosecutions, did not oppose the grant of permission to amend.
Most of the grounds can be disposed of quite shortly. However, ground 1, and the additional ground of appeal, raise points of substance. Having regard to this, it is appropriate to extend the time for the filing of the Notice of Appeal to 26 September 2006, the date when it was filed.
Ground 1: The Judge erred in law by directing the jury that they must convict Ms Brooks upon her plea of guilty
It may be that this ground raises a question of law alone. In any event, we would grant permission to appeal because this ground raises a matter of substance.
It was during the afternoon of Friday 14 July 2006, the fourth day of the trial, that Ms Brooks’ counsel told the Judge that she wished to be re-arraigned. The information came without prior warning to the Judge. We gather that counsel for Mr Childs had little or no warning.
Ms Brooks was re-arraigned and pleaded guilty to the charge of murder. The transcript records that the Judge then said to the jury:
… I now direct you that you must, as she’s still in your hands, direct you as a matter of law that you must return a verdict of guilty of murder. I just leave you to make sure you’re happy about that and I’ll ask the person sitting closest to me to indicate the result. I don’t want to send you out but you really have no alternative. Is it all agreed among you that she should be found guilty? …
At the request of the Judge, one of the jurors then delivered a verdict of guilty on behalf of the jury.
The allocutus was not given. The Judge adjourned the trial to the following Monday afternoon.
On Monday 17 July counsel for Ms Brooks told the Judge that his instructions had been terminated. Other counsel appeared for Ms Brooks. Counsel for Mr Childs told the Judge that no application for an adjournment of the trial would be made as a result of Ms Brooks’ plea. The trial was adjourned to Tuesday 18 July.
On Tuesday 18 July, counsel for Ms Brooks invited the Judge to have the allocutus read, and this was done. The Judge then sentenced Ms Brooks to imprisonment for life, and deferred the fixing of a non-parole period.
On Wednesday 19 July Ms Brooks applied for permission to withdraw her plea of guilty. The Judge heard submissions on this application over the next two days. On Friday 21 July the Judge refused permission: see R v Brooks & Childs [2006] SASC 247; (2006) 95 SASR 369
The trial resumed on Monday 24 July, and continued until it was completed.
On 14 February 2007 the Full Court dismissed an appeal against the Judge’s refusal of permission to withdraw the plea of guilty: see R v Brooks [2007] SASC 35.
It is an established principle that once Ms Brooks was put in charge of the jury, only the jury (unless they had been discharged) could return a verdict of guilty or not guilty on the charge against Ms Brooks. It is also an established principle that ordinarily a trial judge cannot take that decision away from the jury by directing them that they must convict or acquit. The ground of appeal raises the scope of that principle.
Authority binding this Court establishes that in limited circumstances a judge can tell a jury that it is their duty to return a verdict of guilty, and perhaps can go further and direct them that they must return a verdict of guilty.
In Yager v The Queen (1977) 139 CLR 28 the accused was charged under the Customs Act 1901-1975 (Cth) with importing, and with having in her possession, a prohibited import. She pleaded not guilty. The prohibited import was said to be cannabis. At trial the accused made a number of admissions so that proof of the matters admitted was not required at the trial. She admitted in particular that she brought into Australia plant material that was plant material of the genus cannabis. The effect of the admissions was such that the only issue for the jury was whether the plant material that she admitted she brought into Australia was, for the purposes of the relevant section, a prohibited import. There was no issue of fact for the jury to decide, if the relevant statute was construed as prohibiting the import of all species of cannabis. The Judge ruled as a matter of law that the relevant statutory provision had the effect of prohibiting the import of all plants of the genus cannabis. Accordingly, having regard to the admissions that the accused had made, all elements of the offence were made out.
The Judge said to the jury (see Yager at 35):
What then, is the situation, Mr Foreman and members of the jury? The situation is this: That combined with that direction as to the meaning of cannabis, and combined with all of the admissions that have been made by the accused or on her behalf at the commencement of the trial, it would seem that the Crown has established all of the elements of the charge against the accused but the finding of guilt is one for you and for you alone.
I should think that you must be satisfied beyond reasonable doubt that all of the facts which the accused has admitted have been established and if you accept my direction as a matter of law as to the meaning of cannabis as expressed in the Customs Act, then with regard to each of the counts against the accused, you will return a verdict of guilty. Probably what I have just said surprises you. It might be, Mr Foreman and members of the jury, that you would wish to take time to consider the consequences of what I have told you. That might well be unnecessary and in light of that direction you might feel inclined here and now to agree upon the appropriate verdict with regard to each of the counts. The appropriate verdict, as I have told you in my opinion, quite clearly is one of guilty.
It was argued that by this direction the Judge had usurped the function of the jury and, in effect, had directed them to return a verdict of guilty.
It should be noted that in the trial of Ms Brooks the trial Judge gave a stronger direction, directing the jury as a matter of law that they must return a verdict of guilty.
In Yager Barwick CJ, dismissing the appeal, said that the admissions and the Judge’s ruling meant that everything had been established to require a verdict of guilty. He added at 36:
It is a misconception, in my opinion, to think that when all the material has established, without dispute as in this case, all the ingredients of an offence, a presiding judge cannot so inform the jury and tell them that it is their duty to return a verdict of guilty.
He agreed with the reasons of Mason J.
Gibbs CJ agreed in the result. He said the direction was very close to a direction that the jury should convict: at 38. He said that a judge could “never direct a jury to enter a verdict of guilty”: at 38. However, a judge could tell a jury that it was their duty to return a verdict of guilty. He said that in the case before him the direction did not cross “the fine line between a proper direction as to the law and its application to the facts of the case, and an improper direction to convict”: at 39.
Stephen J agreed with the reasons of Barwick CJ and Mason J.
Mason J emphasised the formal admissions made by the appellant, and said that it was “an exercise in fantasy to suggest the jury might not have acted on the admission”. He added at 46:
... The learned judge was therefore in my opinion entitled to direct the jury to return a verdict of guilty; it would not have been proper for him to invite the jury to consider whether they should accept or reject the formal admission; to do so would have been to invite them to deal with a matter which was not an issue at the trial. Support for the view which I have expressed may be found in Jackson v The Queen (1976) 134 CLR 42, at p 45.
Murphy J dissented on the basis that a judge may never direct a jury to convict: at 52. We note, however, that at 51 Murphy J said that the judge had treated “the admissions as equal to a plea of guilty …”. This might suggest that he accepted that a jury could be directed to convict on a plea of guilty.
We are conscious of the fact that in Yager the Judge did not in terms direct the jury that they must convict. He did not tell them this was required of them as a matter of law. However, he told them that the appropriate verdict was one of guilty. Barwick CJ treated the direction as telling the jury it was their duty to return a verdict of guilty. Mason J took the view that the Judge was entitled to direct the jury to return a verdict of guilty. And, it needs to be emphasised, in this case the appellant had pleaded not guilty, and had maintained that plea.
A number of Australian cases refer to the principle that a judge may not direct a jury to return a verdict of guilty, but in all but one of the cases that we have found this is in the context of a plea of not guilty.
However, in R v Douglass (2004) 9 VR 355 at 356, Coldrey J refers in passing to the fact that after the commencement of the trial before him the accused had pleaded guilty, and that he had directed the jury to return a verdict of guilty.
Our consideration of the English cases indicates a steady trend away from earlier decisions that appear to permit a judge to direct a jury to return a verdict of guilty. The effect of the English authority is that such a direction is not permissible in any circumstances when an accused has pleaded not guilty, but the cases recognise that a direction to convict, in breach of this principle, will not necessarily result in a conviction being reversed: see Director of Public Prosecutions v Stonehouse [1978] AC 55; Gent (1989) 89 Cr App R 247 at 250; R v Wang [2005] 1 WLR 661 and R v Caley-Knowles; R v Jones (Iorwerth) [2007] 1 Cr App R 197. However, we note that in Gent at 250 the Court appeared to accept the possibility of a directed verdict if there was “a formal admission of guilt”, although the Court did not explain what that meant.
In light of the decision in Yager it was open to the Judge to direct the jury that because of the formal admission made by the plea of guilty, because the plea amounted to a judicial confession, they were to take all elements of the offence as established, and that it was their duty to return a verdict of guilty. The Judge was entitled to tell them that consistent with their oath as jurors they should return a verdict of guilty. We consider that the Judge was entitled to tell them that as a matter of law they should return a verdict of guilty.
In our respectful opinion the Judge’s direction to the jury went further than it should have, because he told them that as a matter of law they must return a verdict of guilty. As well, the Judge should have offered the jury the opportunity of retiring to consider their verdict, if they wished to do so.
However, we take the view that in the exceptional circumstances of a plea of guilty, no miscarriage of justice can result from the fact that the direction went further than it should have. There is no reason at all to doubt that, properly directed, the jury would have acted on the plea of guilty and returned a guilty verdict.
There is a further reason why this ground of appeal cannot succeed. In our opinion Mr Childs cannot complain about the direction that was given in relation to Ms Brooks’ plea of guilty. Just as he cannot complain of her decision to plead guilty, he cannot complain about the Judge’s direction in relation to it. There is no way in which an error in the Judge’s direction, if there was one, can be said to have had any effect on the regularity or fairness of Mr Childs’ trial.
For that reason, this ground of appeal is not made out.
Ground 2: The trial Judge erred in law by permitting the trial of Mr Childs to proceed after the plea of guilty by Ms Brooks.
There is no substance in this point.
Counsel for Mr Childs had several days in which to consider the position, and raised no objection to the trial proceeding. On appeal Mr Borick QC, counsel for Mr Childs, did not identify any possible source of unfairness or prejudice arising from the continuation of the trial. We accept the submission by Mr Hinton that when Ms Brooks pleaded guilty, all of the evidence that the jury had heard was admissible against Mr Childs. The fact that the jury was aware of the plea of guilty was not, in the circumstances, unfairly prejudicial to Mr Childs’ defence. This observation turns in part on the directions given by the Judge, to which we will refer later.
We would refuse permission to appeal on this ground, because it is not reasonably arguable.
Ground 3: The Judge erred in law in failing to direct the jury that Ms Brooks’ plea of guilty was not an admission of a joint enterprise with Mr Childs, and could not be used to establish such a joint enterprise.
The short answer to this ground is that the Judge directed the jury quite precisely that Ms Brooks’ plea of guilty must not be treated as having any bearing on Mr Childs’ guilt: at [224]. He explained that the jury had no way of knowing on what basis Ms Brooks admitted her guilt. He told the jury, in effect, that the plea of guilty could not be linked with the fact that Mr Childs was there to establish that he must have taken some part in the murder: at [227].
We would refuse permission to appeal on this ground. It is not reasonably arguable.
Ground 4: The trial miscarried because the trial Judge failed to identify the factual basis of Ms Brooks’ plea of guilty, and failed to tell the jury that Ms Brooks had applied to withdraw her plea of guilty.
We consider that there is nothing in this point.
It was not the duty of the trial Judge to determine the factual basis upon which Ms Brooks pleaded guilty, before the trial could proceed. Neither she nor her counsel were under any obligation to inform the Judge of the basis of the plea, had the Judge made enquiry of them. While one might expect Ms Brooks to put forward a factual basis for the purpose of submissions relevant to the fixing of a non-parole period, there was no reason why that should be done as part of the trial of Mr Childs. Indeed, Ms Brooks’ statement as to the factual basis of her plea was not admissible, of itself, in the trial of Mr Childs. Nor was there any reason for the trial Judge to inform the jury of the application by Ms Brooks to withdraw her plea of guilty.
We would refuse permission to appeal on this ground. It is not reasonably arguable.
Ground 5(i): The trial Judge erred in directing the jury that a reason why they could not make use of Ms Brooks’ plea of guilty in the trial of Mr Childs was because a person might plead guilty to a crime the person did not commit.
The Notice of Appeal suggests that the above direction is inconsistent with the direction to the jury that they were required as a matter of law to return a verdict of guilty upon Ms Brooks’ plea of guilty.
There is no inconsistency. A person may plead guilty although not in fact guilty. The court must act upon a plea of guilty, even though the court realises that the accused might be pleading guilty for a reason other than a recognition or acknowledgement of the person’s guilt: see the discussion in Meissner v The Queen (1995) 184 CLR 132 and in R v Pugh (2005) 158 A Crim R 302 at [36]-[38] Doyle CJ and at [120] Bleby J. The Court must act on a plea of guilty entered in open court by an adult person of apparently sound mind and understanding, provided that the plea is made in the exercise of an apparently free choice: Meissner at [141]-[142]. Of course, the Court may make appropriate enquiries of the accused when it thinks it is appropriate to do so, before acting on the plea.

The Judge was entitled and obliged to act on the plea of guilty as he did (subject to the terms of the direction to the jury). The direction to the jury immediately after Ms Brooks’ plea of guilty is not inconsistent with the Judge’s direction to the jury in relation to the case against Mr Childs. The Judge’s remark at [224] that it is not “unknown in some cases for a person, for good reason, to plead guilty to a crime they did not commit”, was no more than an illustration of why the Judge was directing the jury that they must not treat Ms Brooks’ plea of guilty as having any tendency to prove that Mr Childs was guilty of murder.
The Judge’s direction was correct. This ground is not reasonably arguable. We would refuse permission to appeal.
Ground 5(ii): The trial Judge gave inconsistent and misleading directions relating to the evidence that Ms Brooks hated Mr Anderson and had said she wanted him killed
The prosecutor led evidence of disputes between Ms Brooks and Mr Anderson over custody of and access to the children of their relationship. The prosecutor led evidence of statements by Ms Brooks that she wanted Mr Anderson dead, or wanted to kill him.
The Judge told the jury that this evidence could be used to establish a motive or reason on the part of Ms Brooks to join in an arrangement with Mr Childs to kill Mr Anderson: [260], [269], [274].
In the course of doing so, the Judge warned the jury that the evidence of Ms Brooks’ attitude to Mr Anderson did not of itself prove that there was any arrangement between Ms Brooks and Mr Childs to kill Mr Anderson; the evidence was circumstantial evidence of a motive on her part to kill or harm Mr Anderson, and was circumstantial evidence that she might make an arrangement with Mr Childs to kill Mr Anderson. That direction was correct.
The Judge also told the jury that evidence that Mr Childs said that he disliked Mr Anderson, and wished harm on him, was relevant to show his attitude to Mr Anderson: [273]. It was also capable of being evidence of motive.
That direction was correct.
In the course of these directions, while dealing with the relevance of motive on the part of Ms Brooks as evidence that she was party to an arrangement to kill Mr Anderson, the Judge said at [277]:
On the other hand, if you were to infer from the evidence of the relationship and from the other events that Vicki Brooks did have a motive to want Robert Anderson killed, and that [is] a matter entirely for you, then that may be a pointer as to whether he was in fact a party to such an arrangement. As to whether or not she had such a motive you might need to consider not only what I have called generally the relationship evidence but some other events preceding Robert Andersen’s death as well.
Mr Borick fastened on this passage as indicating that the Judge told the jury that evidence of motive on the part of Ms Brooks could be used as evidence that Mr Childs was a party to an arrangement to kill Mr Anderson.
We are satisfied that, in the first sentence, the word “he” should be “she”. The context points strongly to this conclusion, because at this stage of the directions the Judge is focussing on the position of Ms Brooks. If this is not a typographical error, we are satisfied that the jury would have understood this part of the summing up as relating to Ms Brooks.
This ground is not reasonably arguable. We would refuse permission to appeal.
Additional Ground: That the trial Judge erred in law in directing the jury on the significance of the evidence that Mr Childs was intoxicated
This ground raises the application of s 268 of the Criminal Law Consolidation Act 1935 (SA) (“the Act”). We would grant leave to appeal on this ground, because it raises an issue of practical importance.
Facts
We return to the facts.
Shortly before 2.00 am on 26 January 2005, in the car park of the Marion Hotel in suburban Adelaide, Mr Anderson was doused in petrol and set alight. He suffered severe burns. He died in hospital about 5.00 am on that morning.
From the start of the trial the prosecution case was put on two bases. First, that Mr Childs himself committed the murder. Second, that he was a party to a joint enterprise with Ms Brooks to set fire to Mr Anderson and to kill him. The prosecution maintained, correctly, that if the joint enterprise was established, it was not necessary to prove just who set fire to Mr Anderson in the car park.
The prosecution case was a circumstantial one. However, it is pertinent to record that although at the early stages of the police investigation Mr Childs denied it, he admitted at trial that he drove to the car park with Ms Brooks on the morning in question, and was present when Mr Anderson was set on fire. The prosecution case that Ms Brooks was with him was very strong.
The prosecutor led evidence, to which we have alluded, that Ms Brooks hated Mr Anderson, and had said she wanted him hurt or killed. There was evidence that Ms Brooks and Mr Childs were friendly. There was evidence that Mr Childs had talked of harming Mr Anderson.
There was evidence of a telephone call on the evening of 25 January from which the jury could infer that Ms Brooks telephoned Mr Anderson and arranged to meet him at the Marion Hotel car park. There was evidence that Ms Brooks and Mr Childs were in the company of each other on the evening of 25 January.
Mr Childs admitted, as we have already said, that he travelled to the car park of the Marion Hotel in company with Ms Brooks. He admitted that he was present at the time when Mr Anderson was set on fire. Mr Childs said that he had no idea that Ms Brooks would do this. The effect of his evidence was that he accompanied Ms Brooks because she had arranged to meet Mr Anderson there, and he wanted to make sure that Mr Anderson did not harm her. He said that he was sitting in the car and saw Ms Brooks and Mr Anderson arguing. Five or six minutes later he saw a flash of flames and saw Mr Anderson running away from the car. He admitted that he left the scene with Ms Brooks.
There was strong evidence that Mr Childs had purchased petrol on the way to the car park, and evidence capable of satisfying the jury that he had put it in a portable petrol can. There was evidence that when he purchased the petrol he tried to conceal his identity. There was evidence from people nearby, when Mr Anderson was set on fire, suggesting that when the crucial events unfolded there were three people in the car park. This evidence was capable of supporting a finding that Mr Childs was a participant in the attack on Mr Anderson.
In short, there was evidence from which the jury could conclude that Ms Brooks and Mr Childs met Mr Anderson at the car park shortly before he was set on fire, and that both of them were involved in setting him on fire. There was evidence of a shared motive. There was evidence from which the jury could infer that Mr Childs travelled to the car park with Ms Brooks having purchased petrol in the course of the journey, and evidence from which the jury could infer an arrangement between the two of them to attack Mr Anderson, to pour petrol on him and to set fire to him, intending to kill or cause serious harm to him.
There was also evidence bearing on the question of whether Mr Childs was intoxicated. The Judge summarised this evidence for the jury. Mr Walsh saw Mr Childs at about 8.00 pm on 25 January. He said that Mr Childs had been drinking, but his speech was clear and his balance good. Mr Fleet saw Mr Childs about 9.00 pm. Mr Fleet said that Mr Childs had been drinking, and that Mr Childs was “not obliviated but not exactly sober”. Mr Baines visited Mr Childs between 10.00 pm and 11.00 pm. He said that Mr Childs drank every night. Mr Childs was drinking but was steady on his feet and his speech was normal. Mr Haley spoke to Mr Childs between 11.00 pm and 11.30 pm. Mr Childs was very drunk, and could hardly talk sensibly. Mr Walters had been drinking with Mr Childs and Ms Brooks earlier in the day. He saw Mr Childs again between 10.30 pm and 11.00 pm. He was drinking at the time, but was in “a normal mood”.
Mr Carter was the attendant who sold petrol to Mr Childs at a petrol station at about 1.20 am. He said that Mr Childs smelt of alcohol, but that he was steady on his feet.
Ms Asker saw Mr Childs about 3.00 am, which must have been after the events at Marion. She said that Mr Childs was drunk, and was not making much sense.
When questioned by the police on the morning of 26 January, Mr Childs claimed to remember the events of the preceding night. When questioned by the police on the day of his arrest, he claimed to have had a blackout, and not to remember events at the Marion Hotel. According to the Judge in his evidence at trial, Mr Childs’ memory of events on 25 and 26 January “was reasonably clear”. There was evidence that Mr Childs had been on a drinking binge for some weeks prior to 25 January.
In the light of this evidence, it is not surprising that the Judge decided that he should direct the jury in relation to the possible effects of alcohol on Mr Childs’ memory of events on the night in question, and in general terms in relation to the possible effects of alcohol on behaviour. He gave a direction about those matters as they applied to Mr Childs and to a number of other witnesses.
Common Law Principles
At common law, evidence that an accused person was affected by alcohol at a relevant time (we will hereafter use the term “intoxication” as a shorthand expression to mean “affected by alcohol”, without implying anything about the extent of the effect) can have a double significance when considering whether an accused person is guilty of an offence. First, evidence of intoxication may raise a reasonable doubt as to whether the act relied upon by the prosecution was voluntary. That is, ignoring questions of onus, evidence of intoxication might be relied upon by the accused to support an argument that he is not responsible in law for the act relied upon (driving a motor car, firing a gun, striking a blow) because he was so intoxicated that he cannot be said to have been acting voluntarily. Equally, it may be said that he did not intend to do the relevant act. In this situation intoxication is relevant to proof of what is called the basic intention to do the forbidden act.
When we refer hereafter to proof of a basic intention, we mean proof that an act was conscious and voluntary and deliberate.
Apart from that, evidence of intoxication will be relevant if it is capable of raising a reasonable doubt as to the proof of a specific intention if that is required to be proved as one of the elements of the crime in question. For example, an intention to kill or to cause grievous bodily harm is required for proof of murder. Evidence of intoxication may be relevant to proof of the specific intent because it is capable of raising a reasonable doubt as to whether the accused formed the necessary specific intent. We will use “specific intent” to refer to a specific intent that might have to be proved in a particular case.
For present purposes we do not need to explore the concepts of basic intent and specific intent. We use them as broad markers only.
The common law was considered by the High Court in some detail in The Queen v O’Connor (1980) 146 CLR 64. In our respectful opinion Barwick CJ accurately summarised the position in the following passage at 87-88:
In my opinion, evidence of the state of the body and mind of an accused tendered to assist in raising a doubt as to the voluntary character of the physical act involved in the crime charged is admissible on the trial of an accused for any criminal offence, whether an offence at common law or by statute. Further, in my opinion, such evidence tendered to raise a doubt as to the actual intention with which the physical act involved in the crime charged, if done, was done is admissible on the trial of an accused for any offence, whether at common law or by statute, with the exception of such statutory offences as do not require the existence of an actual intent, the so-called absolute offences.
As I earlier indicated, however, the jury needs careful and special instruction. If the evidence, if accepted, is not such as to be capable of raising a doubt as to either of the basic elements, voluntariness or actual intent, there being no other material to suggest a lack of voluntariness or actual intent, that evidence can be withdrawn from the jury's consideration. It will have had no more than a tendency to establish that though the accused acted voluntarily and with the requisite intent, he was influenced in what he did by a state of insobriety. They should be told that if the evidence does not raise in their minds a doubt as to voluntariness or actual intent they may put that evidence out of their minds in considering the accused's guilt or innocence. But if the evidence is capable of raising a doubt either as to voluntariness or the existence of an actual intent, the jury should be told that if that evidence raises in their minds a reasonable doubt as to voluntariness or actual intent, it is for the Crown to remove that doubt from their minds and to satisfy them beyond reasonable doubt that the accused voluntarily did the act with which he is charged and that he did so with the actual intent appropriate to the crime charged. They should be instructed as to the meaning and scope of voluntariness and as to the precise intent which the crime charged requires. It would be proper in these cases to tell a jury that the fact that a man does not later remember what he did does not necessarily indicate that his will did not go with what he did do or that he did not have the necessary intent.
Another helpful summary of the position can be found in the reasons of King CJ in The Queen v Tucker (1984) 36 SASR 135. He said at 138-139:
… A person is, it is true, criminally responsible only for actions which are accompanied by the will. It is also true that, albeit in rare cases, the ingestion of alcohol may deprive a person of the use of his will with the consequence that his actions do not result from the exercise of the will. Criminal liability requires, however, in the great majority of crimes, not only that the physical act constituting the actus reus be voluntary but also that it be accompanied by a basic intention to do the forbidden act. In the case of many crimes, moreover, there must be a further specific intent. The existence of intent, either basic or specific, in the sense in which I have used those words, implies the existence of volition. The concept of an intended but unwilled act is a psychological, and once the terms are properly understood, a logical self-contradiction. In trials of charges of which intent, either basic or specific, is an ingredient, where there is evidence of intoxication, it is necessary for the judge to direct the jury to have regard to the effect of intoxication on the accused's mind in determining whether he possessed the requisite intent. If intent is proved, voluntariness is proved ipso facto. If intent is not proved, a verdict of not guilty results irrespective of voluntariness. In all such cases a direction as to the effect of alcohol on the existence of volition is unnecessary and could well confuse the jury. Only in the rare case in which there can be criminal liability for an unintended act or omission, and there is evidence of drunkenness to a degree which could raise a doubt as to whether act was accompanied by will, is it necessary for a trial judge to direct as to the effect of intoxication on the voluntary character of the act.
In that passage King CJ distinguishes between voluntariness, which will rarely arise, what he calls “a basic intention” to do a forbidden act and then “a further specific intent”.
Section 268
Against that background of the common law, we now come to a consideration of s 268 of the Act. We emphasise that the prosecution case against Mr Childs was put on alternative bases: see above at [59].
The charge of murder required proof that the conduct of the accused, in this case setting fire to Mr Anderson, was accompanied by what we have called a “basic intention”. That is, that the person in question intended to set fire to Mr Anderson. This would not be proved if the person performing the act was, or might have been, acting as an automaton and therefore lacked the basic intent to perform the act, or if the act was, or might have been accidental. Proof of the charge of murder further required proof that Mr Anderson was set on fire with the intention of causing his death or causing him grievous bodily harm. That is proof of a specific intent.
By s 269(1) the question of whether a defendant’s consciousness may have been impaired by intoxication to the point of criminal irresponsibility is not to be raised with the jury, and if raised by the jury must be withdrawn from their consideration, unless the defendant or the prosecutor “specifically ask the judge to address the jury on that question”. In this case, the prosecutor and counsel for Mr Childs both asked the Judge to direct the jury on that question.
Section 268 provides as follows:
268    Mental element of offence to be presumed in certain cases
(1)If the objective elements of an alleged offence are established against a defendant but the defendant's consciousness was (or may have been) impaired by intoxication to the point of criminal irresponsibility at the time of the alleged offence, the defendant is nevertheless to be convicted of the offence if it is established that the defendant—
(a)     formed an intention to commit the offence before becoming intoxicated; and
(b)     consumed intoxicants in order to strengthen his or her resolve to commit the offence.
(2)If the objective elements of an alleged offence are established against a defendant but the defendant's consciousness was (or may have been) impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence, the defendant is nevertheless to be convicted of the offence if the defendant would, if his or her conduct had been voluntary and intended, have been guilty of the offence.
(3)However, subsection (2) does not extend to a case in which it is necessary to establish that the defendant—
(a)     foresaw the consequences of his or her conduct; or
(b)     was aware of the circumstances surrounding his or her conduct.
Example
A, whose consciousness is impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence, beats B up and B dies of the injuries. In this case, A could be convicted of manslaughter but not of murder (because A is taken to have intended to do the act that results in death but not the death).
(4)     If—
(a)     the objective elements of an alleged offence are established against a defendant but the defendant's consciousness was (or may have been) impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence; and
(b)     the defendant's conduct resulted in death; and
(c)     the defendant is not liable to be convicted of the offence under subsection (1) or (2); and
(d)     the defendant's conduct, if judged by the standard appropriate to a reasonable and sober person in the defendant's position, falls so short of that standard that it amounts to criminal negligence,
the defendant may be convicted of manslaughter and liable to imprisonment for life.
(5)     If—
(a)     the objective elements of an alleged offence are established against a defendant but the defendant's consciousness was (or may have been) impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence; and
(b)     the defendant's conduct resulted in serious harm (but not death); and
(c)     the defendant is not liable to be convicted of the offence under subsection (1) or (2); and
(d)     the defendant's conduct, if judged by the standard appropriate to a reasonable and sober person in the defendant's position, falls so short of that standard that it amounts to criminal negligence,
the defendant may be convicted of causing serious harm by criminal negligence.
Maximum penalty:
Imprisonment for 4 years.
(6)A defendant's consciousness is taken to have been impaired to the point of criminal irresponsibility at the time of the alleged offence if it is impaired to the extent necessary at common law for an acquittal by reason only of the defendant's intoxication.
Some relevant definitions are to be found in s 267A. An “alleged offence” means not just the offence charged, but also any other offence of which the accused could be found guilty on the charge. It is clear that “consciousness” embraces voluntariness, basic intent and specific intent, because s 267A(1) includes the following definition:
Consciousness includes –
(a)     volition;
(b)     intention;
(c)     knowledge;
(d)     any other mental state or function relevant to criminal liability.
The section defines “subjective element” to mean the mental elements of an offence including voluntariness. An “objective element” is any element of an offence that is not a subjective element. The “Example” that follows s 268(3) is part of the Act: see s 19(1)(c) of the Acts Interpretation Act 1915 (SA).
Section 268 of the Act has not rendered the common law principles referred to above irrelevant. Its effect is to modify them. For crimes of specific intent, that modification, found in s 268(1), is extremely limited. The principal work which s 268 does is found in s 268(2). The ambit of s 268(2) is limited by s 268(3) which effectively excludes offences of specific intent such as murder and causing serious harm with intent to cause serious harm (s 23 of the Act).
However, s 268(2) operates on offences of basic intent which include, among others, the automatic alternative to a charge of murder, being manslaughter. Now, where the crime charged, or the available alternative, is an offence of basic intent the accused can be found guilty of that offence even though, under common law principles, the accused might not have been found guilty because evidence of intoxication might have left a reasonable doubt as to the voluntariness of the act or the intention accompanying it. Thus, where the accused is charged with murder, the effect of s 268 will be that although the accused is acquitted of the principal charge, the accused may be convicted of manslaughter notwithstanding the impact of intoxication upon volition or intention.

In that context, that is the context of manslaughter as an alternative to a charge of murder, a reference to s 268(4) is appropriate. As we have just explained, on an Information alleging murder the accused might be convicted on the alternative of manslaughter, even though evidence of intoxication might have left a reasonable doubt as to the voluntariness of the act in question. That is the effect of s 268(2). In that setting s 268(4) appears to offer an alternative route to a conviction of manslaughter, namely, on the basis that the conduct of the accused “amounts of criminal negligence” but that alternative route is open only if the accused is not liable to be convicted of manslaughter under s 268(2). It is not easy to identify circumstances in which this alternative will arise, if a direction is given by reference to s 268(2).
Directions
But for the request that counsel made, relying on s 269, it would have been appropriate for the judge to direct the jury as to the elements of the offence of murder and manslaughter in accordance with ordinary common law principles, except that the issue of impairment by intoxication of consciousness to the point of criminal irresponsibility would not be put.
If the jury was satisfied that Mr Childs set fire to Mr Anderson, but was not satisfied that he acted with an intent to kill or to cause grievous bodily harm, then the jury, applying ordinary common law principles, would acquit him of the charge of murder but could convict him of manslaughter. The jury could find him guilty of manslaughter if satisfied that the act was an unlawful and dangerous act: see Wilson v The Queen (1992) 174 CLR 313. Alternatively, applying ordinary common law principles the jury might (although this seems a little unlikely) have convicted Mr Childs of manslaughter on the basis that his conduct was criminally negligent.
A direction in terms of manslaughter by unlawful and dangerous act would have been appropriate. If the jury rejected the accused’s evidence that he remained in the motor vehicle at the time Mr Anderson was set alight, and concluded that it was Mr Childs who set fire to Mr Anderson, or was party to an arrangement with Ms Brooks that Mr Anderson would be set on fire, but was not satisfied of the intention to kill or cause grievous bodily harm, then it seems to us that a conviction for manslaughter was likely. After all, the material supporting an involuntary act by Mr Childs was slim indeed.
However, because of the request by both counsel pursuant to s 269, and because there was some suggestion that Mr Childs had blacked out at the time of the setting fire and had no memory of the relevant events, the judge considered that he had to direct the jury about the possibility of criminal irresponsibility and by reference to s 268.
In light of the very limited evidence raising involuntariness it might be said that s 268 of the Act has no role to play in the present case. Mr Childs’ evidence was that he took no part in the killing. If the jury found to the contrary, there was little, if any, basis on which to admit as a reasonable possibility that his involvement was involuntary or not deliberate. But many judges would be slow to reject a request by both counsel when there was some evidence suggestive of criminal irresponsibility. Once counsel made their request pursuant to s 269, it was for the Judge to decide whether there was an evidentiary basis that made it appropriate to put to the jury the issue of criminal irresponsibility by reason of intoxication.
On the face of things, directing on impairment of the defendant’s consciousness to the point of criminal irresponsibility would provide an additional route by which a jury could acquit of murder. But, as well, the operation of s 268 would expose Mr Childs to the risk of a conviction for manslaughter by unlawful and dangerous act without need of proof of voluntariness or deliberation and, if the jury were directed in terms of s 268(4)(d), to the risk of conviction for manslaughter by criminal negligence on a similarly enlarged basis. But bearing in mind the nature of the act alleged against Mr Childs, it would seem potentially confusing and pointless to introduce manslaughter by criminal negligence.
So, what was the judge to do in the present case?
If the judge determined that there was no basis on which the jury could entertain a reasonable doubt as to the voluntariness of the accused’s acts (such as it found them to have been) the judge was not obliged to direct the jury on that matter, despite the request by counsel. Under those circumstances the judge should have directed the jury both in terms of murder and in terms of manslaughter by unlawful and dangerous act according to common law principles. In neither direction should the issue of involuntariness by reason of intoxication have been put to the jury. But of course intoxication would still be relevant to whether specific intention was formed, the accused’s perception of the situation, his memory and so forth.
However, the judge determined to accede to the requests of counsel. That meant that in terms of murder the issue of voluntariness by reason of intoxication had to be left as a live one. Then, in giving the elements of manslaughter by unlawful and dangerous act, the judge should have advised the jury that any doubt about the relevant act being voluntary and deliberate arising from the accused’s intoxication could not stand in the way of conviction for manslaughter. (This follows from the provisions of s 268(2) of the Act.)
The Judge did not direct the jury in terms of manslaughter by unlawful and dangerous act. In the circumstances of this particular case, we are satisfied that that error (if it be an error) does not give rise to any miscarriage of justice. We cannot identify any basis upon which the failure to direct the jury in terms of manslaughter by unlawful and dangerous act could have worked to the prejudice of Mr Childs. The Judge directed the jury in terms that gave them the alternative of convicting of manslaughter by criminal negligence, as well as acquitting. So it is not a case in which Mr Childs has suffered because an available lesser offence was not left to the jury as an available verdict.
No point was taken about this in the course of submissions on appeal, and there is no ground of appeal directed to this point. We are satisfied that were the point to be raised, it could not succeed.
We turn now to the particular complaint about the terms of the Judge’s direction.
When dealing with intoxication the Judge began by directing the jury at [170] that if they found Mr Childs was “capable of performing acts of the type he described in his evidence as having been performed by him”, the question of intoxication affecting his criminal responsibility did not arise, and they need consider the topic no further.
That direction was wrong. The jury had to consider both the basic intent and the specific intent for murder, and intoxication was relevant to each. The fact that Mr Childs acted voluntarily and intentionally was not inconsistent with a conclusion that, by reason of intoxication, he did not form the specific intent required.
The Judge next told the jury that if they found that because of intoxication Mr Childs had no memory of being at the scene of the crime, then they should consider whether “Childs’ consciousness was or may have been impaired by self-induced intoxication to the point where he was incapable by reason of impairment of forming the intention to cause death or grievous bodily harm as a consequence of his conduct …”. In giving this direction the Judge was evidently drawing on s 268(4), because he went on to direct the jury by reference to manslaughter by criminal negligence.
But, in our respectful opinion, this direction also was wrong. The issue was not whether Mr Childs was incapable of forming the specific intent, but simply whether the jury was satisfied, taking into account the evidence of intoxication, that he did in fact form the intent.
After the next adjournment, and after counsel raised the terms of the direction with the Judge, he re-directed the jury at the first available opportunity.
The Judge now told the jury, referring to a short written memorandum that he had given them the previous day, that they should disregard his direction that the question of intoxication could be put to one side, if the jury was satisfied that Mr Childs was capable of performing acts of the type he described in evidence: at [214]. The Judge told them that they should begin by considering whether Mr Childs was intoxicated. Then, by reference to the written memorandum, he directed them in effect that they had to consider whether “Childs’ consciousness was or may have been impaired by self-induced intoxication to the point where he was incapable, by reason of the impairment, of forming the intention to cause death or grievous bodily harm as a consequence of his conduct”.
That further direction repeated the error in the initial direction. The issue was not whether the prosecution had failed to satisfy the jury that Mr Childs was capable of forming the intention to cause death or grievous bodily harm. The issue was whether the prosecution had satisfied the jury that Mr Childs in fact formed that intention, notwithstanding any evidence of intoxication on Mr Childs’ part.
If one could be satisfied that the Judge’s direction was understood by the jury as meaning that they had to be satisfied that Mr Childs in fact formed the specific intent (that is, that “incapable” was used as a synonym for “fail to form”) then the direction would be adequate. But having regard to the terms of the initial direction and the re-direction, and to the language of the written memorandum, where the term “incapable” is used, we cannot be so satisfied.
It follows that the Judge’s direction contained a significant error on this topic. It is possible that the jury reached their verdict on the basis that intoxication, or its effects, were no answer to the charge unless the intoxication went so far as to make Mr Childs incapable of forming an intent to kill or to cause grievous bodily harm.
On appeal, Mr Hinton QC accepted that the direction was defective. He went on to argue, referring to the principle stated by the High Court in Weiss v The Queen [2005] HCA 81, (2005) 224 CLR 300 at [41]-[47], that making its own independent assessment of the evidence, this Court could be satisfied that Mr Childs was nevertheless proved beyond reasonable doubt to be guilty of the offence of murder. He argued that there was no evidence raising a reasonable possibility that at the time when Mr Childs was in the car park of the Marion Hotel he did not, by reason of being intoxicated, form an intention to kill Mr Anderson or to cause him grievous bodily harm.
In effect, he submits that an acquittal of murder, on the basis that because of the effects of intoxication Mr Childs did not form the required specific intent, was not reasonably open to the jury.
We agree that the defence case in this respect was not a strong one. But we are not able to say that the evidence established beyond reasonable doubt that Mr Childs intended to kill or cause grievous bodily harm, or that Mr Childs’ intoxication was not capable of giving rise to a reasonable doubt that he formed a required intent. There was evidence that Mr Childs was a heavy drinker, and had been drinking on the night in question. The evidence about the events at the hotel car park was lacking in precision, and understandably so having regard to the limited observations that were made by the people who were nearby at the time. In our opinion it cannot be said that the error in a Judge’s direction could not have given rise to a miscarriage of justice.
The jury might have found Mr Childs guilty on the basis of being party to an arrangement with Ms Brooks that Mr Anderson would be set on fire. But there is no way of knowing which approach the jury took.
In our opinion the appeal should be allowed because of the error in the Judge’s directions, the conviction should be set aside and a re-trial should be ordered.
Other matters
As there is to be a re-trial, there are some other points that can be made.
The evidence suggests that if there was an arrangement between Ms Brooks and Mr Childs to lure Mr Anderson to the hotel car park, and there to attack him and set fire to him, the arrangement was reached on the evening of 25 January 2006. The question of intoxication on the part of Mr Childs was relevant to the question of whether such an arrangement was made at some stage that evening. The Judge did not give any directions on that matter. It is desirable that they be given.
A further point worth making is that the Judge’s written direction in relation to joint enterprise makes no reference to the need to prove that both parties to the arrangement were present at the scene of the crime and that, while the arrangement remained on foot, one or other of them did, or they together did, in accordance with their understanding or arrangement, all the things that are necessary to constitute the crime: see R v Lowery & King (No 2) [1972] VR 560. In the circumstances the failure to refer to both parties being present at the scene of the crime, or to the arrangement remaining on foot, could not have mattered, because there is no doubt that Mr Childs was there. However, it would be better if the direction had included that aspect. If Mr Childs was in the car when Mr Anderson was set alight, there might have been a question as to his remaining part of the arrangement.
Conclusion
Because of the error made in relation to intoxication, the appeal against the conviction for murder must be allowed. The conviction should be set aside. This is not a case in which the Court can say that there was no reasonable possibility of the jury failing to be satisfied that Mr Childs formed an intention to kill Mr Anderson, or to cause him grievous bodily harm. Nor is it a case in which the error in the summing up can be disregarded on the basis that it could not have affected the jury’s consideration of this issue.
We would order a retrial.
KELLY J: I agree with the orders proposed by Doyle CJ and Vanstone J and with their reasons.