R v Golding and Edwards - [2008] SASC 68

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GOLDING & EDWARDS
[2008] SASC 68
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice David)
12 March 2008
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - AIDER AND ABETTOR
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - RECORDS OF INTERVIEW
Appeals against conviction and sentence - appellants jointly charged with two co-accuseds of causing grievous bodily harm with intent to do grievous bodily harm - during the course of the trial the two co-accuseds pleaded guilty - application was made at trial to discharge the jury after co-accuseds pleaded guilty - application to discharge jury was refused - on the issue of aiding and abetting, the Judge directed the jury that if the appellants were present and ready to give aid to the person actually committing the crime, then that would make the appellants aiders and abetters - appellants acquitted of the offence of causing grievous bodily harm with intent to do grievous bodily harm but were found guilty of the alternative offence of causing grievous bodily harm - whether Judge should have discharged jury after co-accuseds pleaded guilty - whether Judge's direction to jury following the pleas of guilty was adequate - whether evidence of earlier uncharged incidents was admissible and, if admissible, whether it should have been excluded as a matter of discretion - whether the Judge misdirected the jury on the topic of aiding and abetting, and if so, whether the Judge later corrected the misdirection - whether the trial Judge misdirected the jury on the use that it could make of the records of interview of both appellants - whether question from the jury suggested that the jury had formed a view that was inconsistent with the verdicts returned - whether the sentences were manifestly excessive.
Held: appeals against conviction allowed - convictions entered in the District Court set aside - appellants to be retried in respect of the offence of causing grievous bodily harm - Judge did not err in refusing application to discharge jury - Judge did not err in his direction to jury - evidence of the earlier incidents was relevant, probative and admissible - Judge misdirected the jury on the topic of aiding and abetting - Judge should have directed the jury that presence and readiness to give aid were items of evidence to which they could have regard together with other relevant evidence in reaching a conclusion as to whether encouragement in fact had been proved beyond reasonable doubt - to suggest that presence and readiness would amount to encouragement was a serious misdirection - other aspects of the summing up did not relevantly address this misdirection or overcome the risk that it had led to a miscarriage of justice - Judge did not err in directing the jury on the use that it could make of the records of interview of both appellants - question from the jury indicates no more than that at least one member of the jury would wish the question to be answered, it does not indicate that the jury as a body have reached any concluded view - given that appeals against conviction have been allowed, it is not necessary to consider appeals against sentence.
Criminal Law Consolidation Act 1935 (SA) s 21; Criminal Investigation Act 2006 (WA) s 115, s 116, s 117, s 118, s 119, s 120, s 121, s 122, s 123 and s 124, referred to.
TKWJ v The Queen (2002) 212 CLR 124; Ali v R (2005) 214 ALR 1; Nudd v R (2006) 225 ALR 161; R v Lam (2005) 159 A Crim R 448; R v Coney (1882) 8 QBD 534; R v Sumner & Sumner [2007] SASC 376; R v Lowery and King (No 2) [1972] VR 560; R v Beck [1990] 1 Qd R 30; Giorganni v The Queen (1985) 156 CLR 473; R v Phan (2001) 53 NSWLR 480; M v The Queen (1994) 62 SASR 364; R v Callaghan [1994] 2 Qd R 300; Mule v The Queen (2005) 221 ALR 85; R v Aziz [1996] 1 AC 41; Mahmood v State of Western Australia (2008) 241 ALR 606; Whitehorn v The Queen (1983) 152 CLR 657; Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279; Richardson v The Queen (1974) 131 CLR 116; R v Apostilides (1984) 154 CLR 563; Jack v Smail (1905) 2 CLR 684; Middleton v The Queen (1998) 19 WAR 179; Willis v The Queen (2001) 25 WAR 217; S (2002) 132 A Crim R 326; R v Sharp [1988] 1 WLR 7, considered.

R v GOLDING & EDWARDS
[2008] SASC 68
Court of Criminal Appeal: Doyle CJ, Gray and David JJ

DOYLE CJ: I agree with the orders proposed by Gray J. There is nothing that I wish to add to his reasons, with which I agree in substance.
GRAY J.
These appeals against conviction give rise to questions concerning the appropriate direction to be given to a jury with respect to aiding and abetting.
The appellants, Jorde Edwards and Dwayne Graham Golding, were each charged with the offence of causing grievous bodily harm with intent to do grievous bodily harm, contrary to section 21 of the Criminal Law Consolidation Act 1935 (SA). They were originally jointly charged with two others, Christopher Wayne McNeil and Shane Lucas McNeil. Both Christopher and Shane McNeil pleaded guilty during the course of the trial to, inter alia, the charge of causing grievous bodily harm with intent to do grievous bodily harm.
The appellants were acquitted of the offence of causing grievous bodily harm with intent to do grievous bodily harm but were found guilty of the alternative offence of causing grievous bodily harm.
On the hearing of the appeals, both appellants advanced applications for permission to argue further grounds and applications for permission to appeal against sentence. Although there were separate appeals and applications, the complaints advanced were common to both appellants. Counsel for each appellant argued discrete grounds and each adopted the other’s argument. Accordingly it is convenient to address the appeals together.
The Trial
On the prosecution case, the appellants had been involved in an attack upon J, a man in his forties. J could not recall with certainty how he was initially struck, nor could he recall how many times he was struck. He sustained very serious injuries to his head, face and chest during the attack. He suffered a considerable loss of blood.
The attack on J followed a chance encounter between J, and the appellants and the McNeils, in a bottle shop known as Grays Inn. J intervened when the McNeils were behaving aggressively toward an attendant at the bottle shop. This encounter occurred about 10 or 15 minutes before the attack that is the subject of the charges.
There had also been an incident some hours earlier which involved a confrontation between the McNeils and a woman, who was the duty gaming manager at Richie’s Tavern. This incident involved aggressive abuse by the McNeils, and was witnessed by both appellants.
Four eyewitnesses to the incident, the subject of the charges against the appellants, gave evidence in the trial. The reliability of the observations of these witnesses was a key issue. No witness was able to identify the precise role played by the McNeils or either of the appellants, who were all close to J at the time he sustained his injuries.
The incident giving rise to the charges commenced when the appellants and the McNeils were walking together as a group along Morphett Street, Mount Barker, when J’s car drove by. One of the group recognised J as the person who had intervened in the bottle shop incident. The four men were together when items were thrown at J’s car by one of the McNeils. J stopped, left his car and approached the group.
One witness observed these events and saw the four men, as a group, run toward J. Then the attack occurred. He described all four men as having “wrapped themselves around” J.
Another witness described all four men striking J while he was still standing. This witness then described J, while on the ground, being kicked about 12 times to his head and chest by all four men.
A further witness described J being surrounded by the four men, then being punched by at least two of the men. This witness could not say how many men kicked and stomped on J. However, he did observe the four men to be still surrounding J at the time the kicking and stomping took place.
The final witness described the four men standing with J while he was on the ground. He then observed two of the four men kicking and punching J while the other two were standing back. This witness thought that it was possible that the two standing back had once or twice kicked J. He observed the four men after the attack move away as “kind of in a group”.
An examination of the clothing and footwear of both appellants did not reveal any trace of J’s DNA or blood. However, traces were found on the clothing and footwear of the McNeils.
Both appellants had been interviewed by the police some hours after the attack. The records of interviews were tendered by the prosecution. The records contained both inculpatory and exculpatory material. Neither appellant gave evidence.
The Appeal
Application to Discharge the Jury
The trial commenced as a joint trial of the appellants and the McNeils. It was not an issue that the four accused were at the scene of the incident giving rise to the charges with respect to J. However, the conduct and actions of each, and the inferences to be drawn from the evidence, were the subject of considerable dispute.
Early in the trial, following the commencement of the prosecution evidence, the McNeils pleaded guilty to the counts alleged against them. Following the pleas, the jury returned verdicts of guilty with respect to both men. The verdicts included guilty verdicts of the crime of causing grievous bodily harm with intent to do grievous bodily harm.
The appellants then sought the discharge of the jury. The trial Judge rejected this application and ordered the trial to continue. The Judge, when making this ruling, observed:
I have thought about the application for a mistrial. The application is dismissed. I will, if required, deliver reasons later.
No reasons were requested. None have been delivered.
A plea by an alleged co-offender during a trial occurs from time to time. The principles to be applied are well settled. Street CJ in Cowell[1] observed:
When, in the course of a trial, one of a number of co-accused pleads guilty, that fact is, of course, inevitably known to the jury who must be invited (but not directed) to return a verdict in consequence of that plea. At the same time, trial judges are astute to ensure that juries are made plainly aware that a plea of guilty by a co-accused is not to be taken into account in the slightest degree in determining the question of guilt of those who remain in charge of the jury.
Lord Goddard comments that, even if the plea has not been taken in the presence of the jury, it is very difficult to avoid telling the jury in some way that the other person has pleaded guilty. This is by no means always the case. It is only permissible to tell the jury that another person has pleaded guilty if that is a necessary part of the overall material that the jury must have before them.
Reliance is placed in the present case by the Crown upon a statement in the text in Archbold, Criminal Pleading Evidence and Practice (41st ed), par 15-60:
“Nor is a plea of Guilty by one defendant in any sense to be regarded as evidence, even of his own guilt, against a co-defendant: R v Moore (1956) 40 Cr App R 50, though in the latter’s trial the jury may be told that the former has pleaded guilty in order to explain his absence from the dock.”
I have considerable reservations in embracing the unauthenticated observation in the concluding portion of the sentence. It would only be permissible to tell the jury this if, I repeat, it can be seen to be necessary so to do for the purposes of the trial in hand.
It was open to the Judge to continue with the trial.
[1] Cowell (1985) 24 A Crim R 47 at 50. See also Burnett (1994) 76 A Crim R 146.
The Adequacy of the Direction Following the Pleas
The Judge directed the jury that the pleas of guilty could not be relied upon by the prosecution in its cases against the appellants. The Judge’s direction was in the following terms:
Ladies and gentlemen, as you are aware, this trial started as a trial of three offences and involved four accused. Two of the accused, Mr Christopher McNeil and Mr Shane McNeil, entered pleas of guilty to the charges against them yesterday.
The trial will now proceed against Mr Golding and Mr Edwards but because the nature of the trial has changed, it may require a little bit of time for counsel to rearrange the way in which the witnesses are to be called and just who is to be called.
What we propose to do is to finish the evidence of [Ms D] this morning and then we will have a break until 2.15 while logistic arrangements are made and the new trial, if I can use that expression, or the amended trial, is put on track.
You will be aware that Mr Golding and Mr Edwards are charged only with the offence set out in count 3 of the information. Accordingly, counts 1 and 2 are no longer relevant for your purposes because the accused named in those charges have pleaded guilty.
For the purposes of the trial against the two remaining accused, you must not pay any attention to the fact that Christopher McNeil and Shane McNeil have pleaded guilty. The fact that Christopher McNeil and Shane McNeil have pleaded guilty is not evidence against the remaining accused. The evidence or the admission of the offence by Christopher McNeil and Shane McNeil is evidence only against themselves. It is not evidence against the remaining accused.
The pleas of guilty by Christopher McNeil and Shane McNeil do not affect the position of the remaining accused. Their pleas cannot be regarded as providing any evidence whatsoever against the remaining accused on their trial. The pleas of guilty cannot be relied upon as any basis for implicating Mr Golding or Mr Edwards in count 3.
It would be wrong and unprofitable for you to speculate as to why Christopher McNeil and Shane McNeil pleaded guilty, or as to what Christopher McNeil or Shane McNeil would have said if they had been called to give evidence during the course of the trial.
The present accused, Mr Golding and Mr Edwards, having pleaded not guilty, it will be up to you to determine on the evidence that you will hear during this trial, insofar as the evidence relates to Mr Golding and Mr Edwards, and that evidence alone, whether each one of them is guilty or not guilty of the crime charged.
As to each of the remaining accused, Mr Golding and Mr Edwards, you must reach your verdict on the evidence that you will hear in this case against them and you must put out of your minds entirely the plea of guilty by Christopher McNeil and Shane McNeil and the evidence that relates solely to the involvement of Christopher McNeil and Shane McNeil in the crime.
I will say some more about this in my summing up but I just thought it might be useful if I help you to orientate yourselves having regard to the change in the nature of the trial.
The prosecutor, at the commencement of his final address, reminded the jury of this direction and of its terms and effects. In the course of summing up, the Judge on several occasions referred to the fact that the pleas could not be relied on by the prosecution. The Judge’s further remarks included the following:
In the case of Mr Chris McNeil his initial reaction to the approach by [Mr J] might have been treated as self-defence. Where actions are taken in self-defence, they are considered to be lawful and the requirement of unlawfulness for the offence to be made out would not exist. You have been told, for present purposes, you cannot take into account the plea of guilty by Mr Christopher McNeil and Mr Shane McNeil.
...
In this context can I remind you of what I said last week. You cannot treat the pleas of guilty by the two McNeil defendants as evidence against the current accused. The Crown must establish beyond reasonable doubt, by evidence before you, that a principal offender has committed an offence. If the Crown has satisfied you beyond reasonable doubt that the crime of causing grievous bodily harm with intent to cause grievous bodily harm was committed by a principal offender, you must then consider whether, at the time that that crime was being committed, the accused was both present and intentionally either gave aid or encouragement in its commission. You need to consider that in the case of each of the two accused.
...
One of the reasons for that is that some of the evidence which is available to you is evidence against one of them but not the other. I repeat what I said about not being able to use the pleas of guilty by the McNeil accused as evidence against the current accused. In the same way you cannot use what Mr Edwards said to the police officers during his interview as evidence against Mr Golding, or vice versa. You have to consider the case against each accused and the evidence against each accused separately.
At trial no complaint was made about the initial direction following the pleas, or the need for any redirection on the topic. However, on appeal the appellants contended that the importance of this direction, although given in appropriate terms early in the trial, should have been repeated during the summing up.
This submission is without substance. The Judge gave the jury an appropriate direction. The prosecutor drew the attention of the jury in his final address to the Judge’s earlier direction. The jury were reminded by the Judge in the course of the summing up of the substantive effect of the earlier direction on three separate occasions. There was no risk that a miscarriage could have arisen from the suggested need to repeat the entire direction during the summing up.
Admissibility of Earlier Incidents
The appellants challenged the admissibility of evidence of the two earlier incidents – the confrontation with the woman and the incident at the bottle shop. In the alternative, it was said that evidence of the earlier incidents should have been excluded as a matter of discretion.
It is relevant to record that no objection was taken at trial to the admissibility of this evidence. No application to exclude the evidence as a matter of discretion was advanced. It is also relevant to point out that the account of the earlier incidents could be said to disclose events and circumstances of assistance to the appellants. The description of the earlier incidents, whilst providing submissions relevant to the prosecution, also provided accounts of the McNeils behaving aggressively while the appellants were standing back. Defence counsel at trial may have taken the view that there were forensic advantages in the evidence of the earlier incidents being before the Court. This would explain the lack of any objection at any time.
On appeal, counsel did not suggest any lack of competence or want of care in the conduct of the defence.[2] There was no suggestion that the course followed at trial did not have the approval of either appellant. This complaint, as with others, had the indicia of a new approach to the case on appeal.
[2] TKWJ v The Queen (2002) 212 CLR 124; Ali v R (2005) 214 ALR 1; Nudd v R (2006) 225 ALR 161.
The evidence of the earlier incidents was relevant, probative and admissible. On the Crown case, it was probative as to identity. Distinctive clothing was worn by the McNeils. The evidence also went to the state of mind of the appellants in the lead up to and at the time of the attack. The evidence provided an explanation for the throwing of items at J’s motor vehicle. The evidence allowed inferences to be drawn about the appellants’ awareness of the aggressive nature of the McNeils. The evidence was relevant to the appellants’ ability to foresee conduct in which the McNeils might engage. The prosecution case also involved the allegation that there was a common or joint enterprise between the four men. The evidence of the two earlier incidents was relevant to, and probative of, the nature of the association of the men that night.[3]
[3] R v Lam (2005) 159 A Crim R 448 at [24]-[30].
Aiding and Abetting

The appellants complained that the Judge had misdirected the jury on the topic of aiding and abetting. The Director accepted that there had been a misdirection but contended that the imperfections in the direction were corrected by later directions. Before coming to discuss this issue in detail, it is helpful to place the issue in context.
The Judge suggested to the jury that the appellants could be found guilty in several ways – through directly striking a blow or blows to J, through the doctrine of common purpose or joint enterprise, or through the doctrine of aiding and abetting.
It was accepted by the Director that it was possible that the jury had arrived at its verdict with respect to each appellant on the basis that they were guilty as aiders and abetters. The Director also accepted that the misdirection was a direction on a critical issue and that as a result, if it was not adequately corrected by the trial Judge, it would have given rise to a risk that a miscarriage of justice may have occurred. The Director accepted that if this Court did not find that the trial Judge’s later directions corrected the misdirection, then the appeal should be allowed. It was also accepted that, if this was found to be the case, there was no room for the application of the proviso. However, as earlier observed, it was contended by the Director that there had been an adequate correction by the Judge’s directions later in the summing up.
It is convenient to now turn to the impugned direction. The Judge’s initial direction was in the following terms:
I turn now to another scenario. It is the Crown case that even if Mr Edwards and Mr Golding did not hit or kick [J] so as to directly cause the injury to him, they are guilty as aiders and abetters in the commission of the crime committed by the principal offender.
A person who was not a principal offender may be convicted if that person was present at the commission of the crime, aiding and abetting its commission. An aider and abetter is a person who is present at the time when the crime is committed by another person and who intentionally aids or gives encouragement to that other person in the commission of the crime.
The law regards such an aider and abetter as just as guilty of the crime as the person who actually committed it. The mere presence of an accused at the scene of a crime is not sufficient to make an accused an aider and abetter. It must be shown that there was also intentional aid or encouragement of that other person in the commission of the crime.
Such encouragement would be established if the Crown satisfied you beyond reasonable doubt that an accused was both present and ready to give aid to the person actually committing the crime if required. Such readiness to give aid if required amounts to an encouragement to that other person to commit the crime and would make the accused an aider and abetter.
First of all, you would need to be satisfied that the crime of causing grievous bodily harm with the intention of causing grievous bodily harm was committed by the principal offender before you could be satisfied that an accused was an aider and abetter to its commission.
… If the Crown has satisfied you beyond reasonable doubt that the crime of causing grievous bodily harm with intent to cause grievous bodily harm was committed by a principal offender, you must then consider whether, at the time that that crime was being committed, the accused was both present and intentionally either gave aid or encouragement in its commission. You need to consider that in the case of each of the two accused.
Before you could find that the accused intentionally gave either aid or encouragement in the commission of the crime, you must be satisfied beyond reasonable doubt that the accused knew all of the essential factual circumstances that have to be proved by the Crown to show that the crime was committed by a principal offender.
Specifically, the Crown must establish that the accused had foreseen that the principal offender might act with intent to inflict really serious injury. That is, the Crown must establish that the accused foresaw that the principal offender might do something with the specific intention of inflicting really serious injury. It would not be sufficient if the Crown only established that the accused foresaw that really serious injury might be caused. The Crown must establish that the accused knew that the principal offender might act with the intention of inflicting really serious injury.
It is a subtle distinction. I will say it again: what is necessary is that the Crown must establish that the accused knew that the principal offender might act with the intention of inflicting really serious injury. That requirement focuses on the intention of the principal offender. Foresight that the conduct might cause really serious injury, which focuses on the likelihood of injury, rather than the intention of the principal offender is not sufficient. The intention of the accused to assist or encourage the principal offender must be based on his knowledge of the essential facts.
[emphasis added]
It is the emphasised paragraph in this direction that was of concern. In substance, the Judge directed the jury that they could find aiding and abetting established through encouragement, and that encouragement would be established if the Crown satisfied the jury beyond reasonable doubt that each appellant was both present and ready to give aid to the person actually committing the crime if required.
Counsel for the appellants submitted that more was needed to make out aiding and abetting through encouragement. There had to be something further than presence and readiness.
The Judge then reiterated his direction in the following terms:
The Crown case is that the four men remained together when [J] approached them. The group of four surrounded [J] when the punching and kicking took place and remained within a couple of metres of [J] while the attack took place. Of course, the Crown case is that each of Mr Edwards and Mr Golding participated in the punching and kicking. If you find beyond reasonable doubt that happened, then you may find them guilty as principal offenders or on the basis of a joint enterprise. My current comments relate to the situation where the Crown has not proved beyond reasonable doubt that Mr Golding and Mr Edwards participated in punching and kicking [J] so that they were not principal offenders or guilty on the basis of a joint enterprise, but if you find beyond reasonable doubt that they were both present and intentionally gave either aid or encouragement in the commission of the offence.
To recapitulate, in order to establish that Mr Edwards or Mr Golding was an aider and abetter, the Crown must prove beyond reasonable doubt; first, the commission of the crime by a principal offender; secondly, the presence of an accused at the time the crime was committed; thirdly, that the accused knew all the essential factual circumstances necessary to show that the crime was committed by the principal offender; fourth, that with that knowledge, an accused intentionally assisted or encouraged the principal offender to commit the crime.
In all the above paragraphs, when reference is made to encouragement, the impugned direction is not corrected. Following retirement, the jury returned with a question. This interchange then followed:
HIS HONOUR: Ladies and gentlemen, I have received your question, thank you. I will just read out the question to put my comments into perspective:
If the accused were present during the assault and the jury has found the principal offenders guilty of causing grievous bodily harm with intent to do grievous bodily harm, and the accused are found to be part of a joint criminal enterprise, but did not participate in the assault, and did not attempt to thwart the attack, would the accused be guilty of an offence, that is offence 1, or the lesser charges?.
Can I emphasise what I will call the third limb of that question, the words ‘and the accused are found to be part of a joint criminal enterprise but did not participate in the assault’. There is a little contradiction there. If the accused didn’t participate in the assault, they would not have participated or have been part of a joint criminal enterprise.
What you should consider, if the first two limbs of the question are made out, they are, ‘if the accused were present during the assault and the jury has found the principal offenders guilty of causing grievous bodily harm with intent to do grievous bodily harm’, what you need to do if you get to that stage is to consider aiding and abetting.
In that context, can I repeat some of the words I said this morning?
A person who was not a principal offender may be convicted if that person was present at the commission of the crime aiding and abetting its commission. An aider and abetter is a person who is present at the time when the crime is committed by another person and who intentionally aids or gives encouragement to that other person in the commission of the crime. The law regards such an aider and abetter as just as guilty of the crime as the person who actually committed it.
The mere presence of an accused at the scene of the crime is not sufficient to make the accused an aider and abetter. It must be shown that there was also intentional aid or encouragement of that other person in the commission of the crime. Such encouragement would be established if the Crown satisfied you, beyond reasonable doubt, that an accused was both present and ready to give aid to the person actually committing the crime if required.
Such readiness to give aid, if required, amounts to an encouragement to that other person to commit the crime and makes the accused an aider and abetter.
[emphasis added]
It is to be observed that the Judge repeated by re-reading the impugned direction.
There has been considerable debate in the authorities about what the prosecution needs to prove to establish aiding and abetting.[4] A convenient starting point is Archbold, Criminal Pleading, Evidence and Practice,[5] where encouragement necessary to constitute aiding and abetting is explained:
To establish aiding and abetting on the basis of encouragement, it must be proved that the defendant intended to encourage and wilfully did encourage the crime committed. Mere continued voluntary presence at the scene of a crime, even though it was not accidental, does not of itself necessarily amount to encouragement; but the fact that a person was voluntarily and purposely present witnessing the commission of a crime and offered no opposition, though he might reasonably be expected to prevent it and had the power to do so, or at least express his dissent, might in some circumstances afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted, but it would be purely a question of fact for the jury whether he did so or not: R v Clarkson, 55 Cr. App. R. 445, Ct-MAC. In R v Jonesand Mirrless, 65 Cr. App. R. 250, CA, it was emphasised (following R v Allan [1965] 1 Q.B. 130, 47 Cr App. R. 243, CCA) that mere voluntary presence which in fact encouraged the principal was not enough; nor was mere voluntary presence coupled with a secret intention to assist, if required. What none of the cases make absolutely clear is whether mere voluntary presence, which in fact encourages the principal, and which is intended to do so, is sufficient. In principle, it is submitted that it should be; the act is the voluntary act of being present. This conclusion is consistent, it is submitted, with the leading case of R v Coney (1882) 8 Q.B.D. 534, CCR (non-accidental presence at an unlawful prize fight capable of being encouragement); and with Wilcox v Jeffery [1951] 1 All. E.R. 464, DC (intentional encouragement in fact by voluntary attendance at a concert performance known to be unlawful).
The voluntary presence of a defendant as part of a crowd engaged in threatening behaviour over a period of time and/or distance is sufficient to raise a prima facie case against him on a charge of threatening behaviour, notwithstanding the absence of evidence of any act done by himself: Allan v Ireland, 79 Cr. App. R. 206, DC, applying R v Allan, ante. The same principle plainly applies, for example, to affray.
[emphasis added]
[4] In the review of the authorities set out below, I have been greatly assisted by the reasons of Redlich J in R v Lam (2005) 159 A Crim R 448.
[5] Archbold, Criminal Pleading, Evidence and Practice (2007) at [18-18]-[18-19].
In Coney,[6] Hawkins J identified the essential requirement for aiding and abetting in the following manner:
In my opinion, to constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, on non-interference, or he may encourage intentionally by expressions, gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former case he does not. It is no criminal offence to stand by, a mere passage spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might under some circumstances, offer cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted. But it would be purely a question for the jury whether he did so or not.
[emphasis added]
[6] R v Coney (1882) 8 QBD 534 at 557-558. See also R v Sumner & Sumner [2007] SASC 376.
In Lowery (No 2),[7] Smith J conveniently set out the principles relating to aiding and abetting. His Honour said:
Even if there is no prior understanding or arrangement that the crime shall be committed a person is guilty in law of a crime committed by the hand of another – another whom the law calls the principal in the first degree – if the person is present when the crime is committed and aids and abets the commission of it. In such circumstances he is called the principal in the second degree and he is equally guilty of the crime with the principal in the first degree. Aiding and abetting in this connexion means doing one or other of these three things while aware that the crime is being committed: first, intentionally helping the principal in the first degree to commit the crime, or, secondly, intentionally encouraging him by words or by your presence and behaviour to commit it, or, thirdly, intentionally conveying to him by words or by your presence and behaviour that you are assenting to and concurring in his commission of the crime. A person present at the scene of the crime and so aiding and abetting a person to commit a crime is in law a principal in the second degree and is guilty in law of the crime committed by the hand of the principal of the first degree.
[7] R v Lowery and King (No 2) [1972] VR 560 at 561-562.
In Beck,[8] Macrossan CJ, after observing that one may look at all of the aider’s conduct to see whether he intends and is giving support at a particular moment, said:
Intentional encouragement may come from expressions, gestures “or actions intended to signify approval”. Voluntary and deliberate presence during the commission of a crime without opposition or real dissent may be evidence of wilful encouragement or aiding. It seems that all will depend on a scrutiny of the behaviour of the alleged aider and the principal offender and on the existence which might appear of a bond or connection between the two actors and their actions. ... [A] calculated presence or a presence from which opportunity is taken can project positive encouragement and support to a principal offender. The distinction between a neutral and a guilty presence of a person at the scene of a crime would be for the jury to assess. Proof of guilt of the crime of aiding will not ordinarily be established by mere presence if no telltale acts are performed by the alleged aider but the intention behind and the effect of the presence of the additional person at the scene may be established by other evidence from which it is possible to say that a case of intentional encouragement or support of the principal offender is made out.
[emphasis added]
[8] R v Beck [1990] 1 Qd R 30 at 37.
In Giorganni,[9] Mason J examined the terms aid, abet, counsel or procure and then observed:
But the terms are descriptive of a single concept. In this regard, I would adopt the observation of Cussen A.C.J. in R v Russell, as being applicable to secondary participation in misdemeanour. Having listed various words, including “aiding” and “abetting” which have been used to refer to the conduct of a principal in the second degree in felony, his Honour observed:
“All the words above mentioned are, I think, instances of one general idea, that the person charged as a principal in the second degree is in some way linked in purpose with the person actually committing the crime, and is by his words or conduct doing something to bring about, or rendering more likely, such commission.”
[9] Giorganni v The Queen (1985) 156 CLR 473 at 493 (footnotes omitted).
These authorities establish that presence and readiness are evidence that may go to establish encouragement. However, it would be an exceptional case where these circumstances and no more would be sufficient. In the ordinary case, more would be required.[10]
[10] See R v Phan (2001) 53 NSWLR 480 at [75].
The Judge’s impugned direction informed the jury that encouragement would be established by the appellants being present and ready to give aid if required to the person actually committing the crime. In the circumstances of this case, more was needed. The Judge should have directed the jury that presence and readiness to give aid were items of evidence to which they could have regard together with other relevant evidence in reaching a conclusion as to whether encouragement in fact had been proved beyond reasonable doubt. To suggest that presence and readiness would amount to encouragement was a serious misdirection.
There was a body of evidence from which inferences could be drawn to support the prosecution case on encouragement. This evidence had been outlined by the prosecutor in his final address. The Judge did not seek to assist the jury at all with respect to this evidence, the weight they might attach to it, or the way in which they, as the finders of fact, might relate the evidence to the question of encouragement. The Judge should have done so.
I do not consider that other aspects of the summing up relevantly addressed this misdirection or overcame the risk that it has led to a miscarriage of justice. It is a reasonable possibility that the jury understood that encouragement was made out by mere presence and readiness, and that accordingly the element of encouragement had been established sufficient to satisfy the prosecution onus in respect of that element of the offence. It is reasonably possible that the jury, when convicting the appellants, followed this route. As counsel for the Director conceded, once this conclusion was reached, there was no room for the application of the proviso. There is a real risk that there has been a miscarriage of justice. Accordingly, the convictions recorded against both appellants should be set aside and a retrial ordered in respect of the charge of causing grievous bodily harm.
Two further complaints were made with respect to the Judge’s directions concerning aiding and abetting. Although I have reached the conclusion that the earlier deficiency in the summing up has given rise to a risk of a miscarriage of justice, it is desirable that these further complaints be addressed. It was argued that the jury should have been directed that the prosecution must prove that an accomplice must have intended the principal offender to commit the crime. This submission should be rejected. The intention that had to be proved in the present case was that the appellants intentionally encouraged or assisted, in the knowledge of the essential facts needed for one or other of the McNeils to be guilty of causing grievous bodily harm.

It was further submitted that the jury should have been directed that the prosecution must prove that an accomplice intended his conduct to have the effect of encouraging the principal. It was said that this direction was not given by the trial Judge. The Director submitted that this formulation was simply another way of saying that to aid and abet, an accomplice must have intentionally encouraged or assisted the principal in knowledge of the essential facts. I agree. This was the substance of the direction given by the trial Judge.
Records of Interview
The trial Judge addressed the use the jury could make of the records of interview of both appellants. As earlier observed, the records contained both inculpatory and exculpatory statements.
During the summing up, the Judge told the jury that the topic of the assessment of witnesses was important. The Judge discussed with the jury how they might consider, treat and assess the evidence given before them in the witness box – that is, the sworn evidence in the trial. In the course of this discussion, the Judge informed the jury:
In this case neither of the accused gave evidence. The records of interview which you saw on the videotapes, and which you can take into the jury room with you, are not evidence. Each of the accused has exercised a right which the law gives to everyone. As I told you, the accused are not required to prove anything. You must not draw any inference adverse to an accused because of the fact that he exercised a right which the law gives to everyone. There may have been good reasons why the accused did not give evidence. You should not speculate as to what those reasons may be. As I have told you, the onus rests with the prosecution to prove its case beyond reasonable doubt.
Later, the Judge referred again to the records of interview, with some particularity. In that respect the Judge observed:
In his interview which is recorded on the tape, Mr Golding said that the four of them were not in a group but were spread out. He said that the male, that is [J], ran up and asked who had thrown something at the car. [J] went straight up to Chris, who was the biggest. Mr Golding said ‘That’s when I turned around and started walking off because he was obviously angry, so we didn’t really want to get involved in it’. He said he was behind them and that as soon as the dude started pushing around, they all pretty much turned around and started walking off. He said the dude started pushing Shane. His description of what [J] actually did was as follows: ‘I cannot remember. It all happened so quick and then we all started walking off. And he went to bang one to Chris and Chris has, like, ducked it and dude fell on the ground and then we turned around and started running pretty much’. Mr Golding said ‘I just heard screaming and that because I didn’t want to get involved in it and neither did Shane. That, because he’s on probation and that, so we just pretty much turned around and he’s kept going’. He said that [J] kept pushing Chris or Shane. He said ‘Then we all started walking off and he went to Chris and then after that he -’ that is [J] ‘- hit Chris and Chris moved’.
When he was questioned by the police Mr Golding denied that he had hit or kicked [J]. He was asked whether he or anyone else punched or kicked the male. His reply was ‘I do not know. I don’t think so. I heard him fall on the ground and that’s it’. That tape will be with you in the jury room. If you wish to watch it you can.
As to the case for Mr Edwards, it is his case also that the eyewitnesses may have been mistaken, particularly as to whether there were four men or two men involved in the attack. That is something which you need to consider. Were the eyewitnesses mistaken?
Counsel pointed out ways in which the eyewitnesses may have been mistaken. He pointed to the fact that there was no blood on the shoes or clothes of Mr Edwards. He pointed out that the evidence of [an eye witness] differs from the evidence of [J] who said he was hit from behind.
Ladies and gentlemen, as you have been told, the Crown must prove its case beyond reasonable doubt. If you have any doubt, you must give the accused the benefit of that doubt. Counsel suggested that you view the record of interview of Mr Edwards, that is P9, again. You will have that with you.
Statements made by an accused to police officers during an interview are not the same as sworn evidence in the witness box. While it is not evidence of the fact referred to in the interview, the statement may be relevant insofar as it gives some insight into the accused’s case. It is for you to decide whether you wish to view the records of interview. It is some days since you saw them now and you may find that it will be of assistance.
In his interview, which is recorded on the tape, Mr Edwards said that [J] walked up to the four of them, that he got pretty ballistic, that he walked up to Chris, grabbed him by the collar and was shaking him around for a little bit and ‘Chris just grabbed him and threw him against the ground’. He said it was a big shock and pretty quick and that he and Mr Golding started walking away and the others followed not too far behind. Later he said that Chris got underneath the arms of [J] and threw him against the ground and that Shane and Chris just started kicking and punching him. They were punching and kicking him in the head. He said [J] was out cold as soon as he got to the ground. He saw his head hit and said that he didn’t move or say anything after that.
Mr Edwards told the police officers that he did not kick [J] or punch him. He said that he and Mr Golding walked away as soon as the McNeil’s started rolling with him – to use his expression – and that when they got 10 metres away the McNeil’s followed.
During addresses all counsel referred to the records of interview. The jury were invited by both counsel and the Judge, if they wished, to review the records of interview during their deliberations.
The status of out of court statements by an accused has been the subject of considerable discussion in the authorities for more than 100 years. A salient example in this State is to be found in M,[11] where Duggan J summarised the position as follows:
There is ample authority for the proposition that if an accused person’s record of interview with the police is tendered by the prosecution the court can act upon any exculpatory parts as well as any admissions and the exculpatory statements which may be relied upon are not restricted to those which qualify the admissions. The authorities were reviewed at some length by Cox J in Spence v Demasi (1988) 48 SASR 536 where his Honour said (at 540):
“The rule against hearsay evidence usually operates to prevent a party from tendering his self-serving statements made out of court in proof of the truth of the matters so asserted. The problem comes with mixed statements, tendered by an opponent, containing admissions against the party making them and also exculpatory statements, whether relating to the admissions or on other relevant topics. The position in the criminal court, I think, is clear. It is common for the Crown to tender a record of the accused’s interrogation by the police, and often this will contain a mixture of admissions and self-serving statements. The Crown cannot pick and choose. It cannot put in only the damaging questions and answers, or have the admissions treated as evidence and the rest rejected or ignored as hearsay. The whole interrogation (or narrative statement, as the case may be) goes before the jury and it is for them to decide what parts, if any, they will act upon in reaching their verdict. They may give different weight to different parts: see R v Higgins (1829) 3 C & P 603; 172 ER 565. The failure of the accused to give evidence may well influence their attitude to the self-serving answers. A modern statement of the practice is found in the judgment of the English Court of Appeal in R v Duncan (1981) 73 Cr App R 359 at 365:
‘It is, to say the least, not helpful to try to explain to the jury that the exculpatory parts of the statement are something less than evidence of the facts they state. Equally, where appropriate, as it usually will be, the judge may, and should, point out that the incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight. Nor is there any reason why, again where appropriate, the judge should not comment in relation to the exculpatory remarks upon the election of the accused not to give evidence.’
The Full Court of this State declared the law to substantially the same effect in R v Karpany [1937] SASR 377. It followed precedents extending back to R v Jones (1827) 2 C & P 629; 172 ER 285. Similar decisions in other States, with respect to the criminal jurisdiction, are Sharp v Hotel International Ltd [1969] VR 103 at 109-110; R v Williamson [1972] 2 NSWLR 281 at 295; and R v Cox [1986] 2 Qd R 55; see also Jack v Smail (1905) 2 CLR 684 at 695, 707-708. In England the rule, as enunciated in Duncan, wavered, perhaps, in R v Kurshid [1984] Crim L R 288 but was affirmed in R v Hamand (1985) 82 Cr App R 65. One thing should be made quite plain. The use that may be made in a criminal trial of a mixed statement by a defendant is not confined to passages that qualify or explain, more or less directly, the admissions upon which the Crown relies — for example, by a defendant's admitting that he struck the victim but going on to claim that he acted in self-defence. This narrow approach was taken in some of the English cases prior to Duncan and was preferred in principle, despite that decision, by J Huxley Buzzard, R May, M N Howard, Phipson on Evidence (13th ed, 1982). The jury (they considered) could take the exculpatory passages into account in determining whether or not the defendant’s statement really was an admission, but they could not rely upon them for any wider purpose, such as providing independent evidence of the defendant’s innocence: cf S Mitchell, P J Richardson, J Huxley Buzzard, Archbold Pleading, Evidence and Practice in Criminal Cases (42nd ed, 1985), par 15-57. This was not the view taken in Duncan or in the Australian cases to which I have referred. Despite the fact that the defendant could not himself ordinarily tender a self-serving statement in proof of the matters so stated, such a statement, when tendered by the Crown because of the admissions that accompany it, will be evidence for all purposes, whatever the weight of its individual parts might be. That, I believe, reflects the current practice in the courts of this State.”
The principle stated in R v Duncan (1981) 73 Cr App R 359 was approved by the House of Lords in R v Sharp [1988] 1 WLR 7; [1988] 1 All ER 65.
[11] M v The Queen (1994) 62 SASR 364 at 369-370. See also R v Callaghan [1994] 2 Qd R 300.
The High Court has recently had the opportunity to consider the status of exculpatory assertions and the appropriate direction to be given to juries when those assertions have been received as part of the evidence in the trial. The Court in Mule[12] referred to Spence v Tomasi as forming part of the accepted view of the law in this country. In the course of the Court’s joint reasons, it was observed:[13]
[12] Mule v The Queen (2005) 221 ALR 85.
[13] Mule v The Queen (2005) 221 ALR 85 at [13]-[14], [17]-[18], [21], [23] (footnotes omitted).
One further part of the context should be noted. As has been mentioned already, by the end of the evidence and the addresses of counsel, it was plain that there was no issue as to the possession by the appellant of the ecstasy tablets. They were found in a safe at his home. What he said on the telephone when his wife rang him at Broome made it clear that the drugs were his. In his interview, he did not suggest that they belonged to anybody else. Strictly speaking, there was no question of the jury having to decide the weight to be given to the admissions, at the interview, that the tablets were ecstasy or that they were his. By the time of the summing-up, as the trial judge pointed out, those questions were not a matter of contest. The only live issue concerned what the jury might make of the out of court assertions of the appellant, mainly through his solicitor, that the tablets were for his personal use. This is not a case where the exculpatory statements cast doubt upon, or qualified the meaning of, the admissions. The admissions were of possession and, at trial, that fact was not disputed.
As appears from what is set out above, the trial judge instructed the jury, as a matter of law, that the video cassette, having been tendered by the prosecution and admitted into evidence, became evidence “for the [appellant] as well as against him” and could be used for all legitimate purposes. The trial judge said that the appellant relied upon the assertions about intended use recorded in the videotape and it was made clear to the jury that, as a matter of law, he was entitled to do so. Again, the proposition that the whole of the recorded matter was available as evidence for the consideration of the jury was not in contest in this appeal. It reflects the accepted view of the law in this country, and it accords with the current state of the law in the United Kingdom.
...
Templeman J, with whom Wheeler J agreed, found no error in what the trial judge said. He considered it “appropriate to direct the jury that any exculpatory statements made by an accused person in the same interview do not have the same weight as admissions … [because] … the exculpatory statements have not been made on oath and have not been tested by cross-examination”. He supported this conclusion by reference to the judgment of Cox J, with which White and Perry JJ agreed, in the South Australian case of Spence v Demasi. Cox J, in turn, had referred to the decision of the English Court of Appeal in Duncan, which was approved by the House of Lords in R v Sharp.
McLure J also referred to R v Sharp, and pointed out that it was later followed by the House of Lords in R v Aziz. She distinguished between directions on law and comments on the facts. She said the English authorities established that, in the case of what is sometimes called a “mixed” out of court statement which is tendered by the prosecution, while the whole statement should be left to the jury as evidence of the facts, the judge may draw attention, where appropriate, to the different weight they might see fit to give to the exculpatory statements as compared to the admissions. McLure J considered, however, that if the passage complained of were considered in isolation it may have created an erroneous understanding on the part of the jury that, as a matter of law, they were bound to give less weight to the assertions than the admissions. However, she also considered that any such false impression was immediately corrected by the next sentence, and would also have been inconsistent with the wider context of the summing-up. She was satisfied that the jury would not have been left with any impression that they were bound to accord less weight to the self-serving out of court exculpatory statements.
...
Jurors are commonly told that they may approach the evidence selectively and in a discriminating fashion, that it is for them to decide what evidence they accept and what evidence they reject, and that the law does not require them to give all evidence the same weight. An instruction of that kind, put as an abstract proposition, is an instruction of law. When related to the facts of a particular case, it may have the character both of an instruction of law and of an observation upon the facts. It is the duty of a trial judge to relate instructions of law to the facts, and, in the result, what is said to a jury may involve both instruction and observation. An observation by the trial judge that the appellant’s out of court assertions, although disclosed in evidence by the prosecution’s tender of the videotape, were not sworn testimony, that, unlike the admissions, they were not against the appellant’s interests, and that the jury could give them less weight than the admissions, was proper. To a lawyer, it might seem to be a statement of the obvious, but it is understandable that a trial judge might make it. Some jurors could have been puzzled about the consequences of the prosecution having, in effect, put the defence case before the jury. In the circumstances of this trial, if the judge had not explained to the jurors that they were entitled to attach different weight to different things that were said during the interview, they might have felt obliged to give everything that was said in the interview equal value.
...
As has been noted, many cases involving evidence of out of court “mixed” statements by an accused person are more complex than the present. In R v Cox, Thomas J rightly cautioned against inappropriate generalisations concerning the difference between inculpatory and exculpatory parts of a statement: a difference that in some cases (not including the present) might be difficult to discern. He said, in a passage quoted by McLure J in her reasons:
“With respect, it seems to me to be undesirable that juries be given general a priori directions as to what sorts of evidence are likely to be true, or as to the weight which should be accorded to different parts of the one statement. The matter of weight is for them, and the weight of each part of the statement should be determined in the light of the whole of the evidence. There is, of course, no reason why the trial judge should not point out that such statements have not been made on oath and (where appropriate) that they have not been tested by cross-examination. He may explain the traditional reasons why admissions against interest are commonly regarded as reliable evidence, and make any appropriate comments about particular parts of the evidence. The weight which may fairly be accorded to a self-serving statement varies so much from case to case that it is unwise to lay down any general disparaging directions concerning such statements, although of course, critical comments may be made in appropriate cases.” (Emphasis added.)
Apart from the words emphasised in that passage, it is a sound guide to jury direction. In view of the long-standing controversies about why admissions are received, and in view of the fact that an admission need not have been against interest at the time it was made, it is undesirable to direct juries along the lines suggested by the words emphasised.
The Court made reference to the decision of the House of Lords in Aziz[14] and noted that that decision accorded with the accepted view of the law in Australia. In Aziz, Lord Steyn, with whom the other members of the House agreed, observed:[15]
[T]he principle as enunciated in Sharp is that both the inculpatory and exculpatory parts of a mixed statement are admissible as evidence of their truth. So far as the exculpatory parts of a mixed statement are concerned an exception to the hearsay rule is involved. It is necessary to explain the scope of the exception. Duncan was concerned with mixed statements made to the police. But Sharp made clear that the principle cannot be so confined. It applies to all mixed statements tendered by the Crown. Contrary to the submission of counsel for the Crown, Sharp does not warrant the introduction by a defendant of a mixed statement as part of his case ….
[14] R v Aziz [1996] 1 AC 41.
[15] R v Aziz [1996] 1 AC 41 at 50.
More recently, Hayne J in Mahmood,[16] had occasion to return to the topic of exculpatory statements. In this respect his Honour observed:[17]
In general, the prosecution should call “[a]ll available witnesses ... whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based”[18]. If an accused has made inculpatory statements that are admissible in evidence, the prosecution should ordinarily lead evidence of all of those statements. It is necessary, of course, to take account of statutory provisions governing admissibility of out-of-court admissions that are not recorded[19]. But subject to that important consideration, it is not open to the prosecution to pick and choose between those statements, whether according to what is forensically convenient or on some other basis. And in leading evidence of out-of-court assertions which the prosecution alleges are inculpatory, the prosecution must take the out-of-court assertion as a whole; the prosecution “cannot select a fragment and say it bears out their case, and reject all the rest that makes against their case”[20].
Application of the last-mentioned principle to the record of a lengthy interview or re-enactment may not be easy[21]. But just as the prosecution in this case tendered the whole of the record of interview (apart from the undisputed excision of some irrelevant material) so too the prosecution could have, and should have, tendered the whole of the record of the re-enactment.
In its supplementary submissions on this point the respondent relied on the decision of the Court of Appeal of the Supreme Court of Queensland in Callaghan v R[22] and three Western Australian cases[23] in which Callaghan has been considered. It was accepted in Callaghan[24] that the interview, of which the accused had sought to tender evidence at his trial, “did not contain any inculpating statements”. It was in this context that Pincus JA and Thomas J said in Callaghan[25]:
… [I]f a prosecutor chooses to put into evidence a version which is in substance exculpatory, he makes it evidence in the case, and subject to matters of weight, it can be acted on as showing or tending to show the truth of its contents. There is no general obligation on the prosecution to call such evidence. The calling of such evidence is a benefit tendered by the prosecution and accepted by the defence.
In Western Australia, Callaghan has been said[26] to stand for the proposition that “[i]t is a matter for the prosecution to determine whether or not it wishes to lead the evidence as part of its case” of an out-of-court statement that contains both inculpating and exculpating material. The decision in Callaghan does not establish that proposition and it is a proposition that is not consistent with the proper presentation of the prosecution case. If there is admissible evidence available to the prosecution of out-of-court statements of the accused that contain both inculpating and exculpating material, fair presentation of the prosecution case will ordinarily require that the prosecution lead all that evidence.
[16] Mahmood v State of Western Australia (2008) 241 ALR 606.
[17] Mahmood v State of Western Australia (2008) 241 ALR 606 at [39]-[41].
[18] Whitehorn v The Queen (1983) 152 CLR 657 at 674 (Dawson J). See also Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 at 294; Richardson v The Queen (1974) 131 CLR 116; R v Apostilides (1984) 154 CLR 563.
[19] See, e.g., Criminal Investigation Act 2006 (WA), Pt 11, sections 115-124.
[20] Jack v Smail (1905) 2 CLR 684 at 695.
[21] Cf Mule v The Queen (2005) 221 ALR 85 at [5], [23].
[22] R v Callaghan [1994] 2 Qd R 300.
[23] Middleton v The Queen (1998) 19 WAR 179; Willis v The Queen (2001) 25 WAR 217; S (2002) 132 A Crim R 326.
[24] R v Callaghan [1994] 2 Qd R 300 at 302.
[25] R v Callaghan [1994] 2 Qd R 300 at 304.
[26] Middleton v The Queen (1998) 19 WAR 179 at 182. See also Willis v The Queen (2001) 25 WAR 217; S (2002) 132 A Crim R 326.

The practice in this State has been for the prosecutor to tender at trial as part of the Crown case statements made by accused to police even if exculpatory. Judges customarily direct juries about the difference between sworn evidence and an accused’s out of court record of interview. It is commonly pointed out that an out of court record of interview is material on which the jury may act, but that a record of interview is not sworn evidence subject to testing by cross-examination.
The appellants complained that the Judge had incorrectly informed the jury that the records of interview were not evidence. This submission has no regard to the context in which that statement was made. The Judge’s explanation was made in the context of a discussion directed to the topic of the assessment of sworn evidence. As earlier observed, this material was referred to by all counsel during addresses and by the Judge when summing up. The jury was aware that the records of interview were material on which they could act and material they were entitled to review in the jury room.
It is to be observed, however, that the decisions in Sharp[27] and Aziz treat the exculpatory statement as evidence in the trial and as “evidence of their truth”. They are received as an exception to the hearsay rule.[28] The Court in Mule appears to have approved Aziz. In Callaghan,[29] Pincus JA and Thomas J referred to the exculpatory statements as being capable of “showing or tending to show the truth of their contents”.
[27] R v Sharp [1988] 1 WLR 7.
[28] R v Sharp [1988] 1 WLR 7; R v Aziz [1996] 1 AC 41.
[29] R v Callaghan [1994] 2 Qd R 300.
Although no point was taken on appeal, it is relevant to observe that the trial Judge directed the jury with respect to the mixed statements of the accused as follows:
While it is not evidence of the fact referred to in the interview, the statement may be relevant insofar as it gives some insight into the accused’s case.
This direction did not accord with the authorities.
Other Complaints
A complaint was advanced that the earlier referred to question from the jury suggested that the jury had formed a view that was inconsistent with the verdicts returned. This complaint is misconceived. The fact that the jury might ask a question indicates no more than at least one member of the jury would wish the question to be answered. It does not indicate that the jury as a body have reached any concluded view.
It was further contended that the verdicts were unsafe and unsatisfactory. In advancing this complaint, the appellants simply relied on the matters already addressed. In the circumstances there is no need to further consider this complaint.
Applications for the leave to appeal against sentence were also before the Court. As it is my view that the convictions should be set aside, there is no need to further consider these applications.
Conclusion
The appeals against conviction should be allowed. The convictions entered in the District Court should be set aside. The appellants should be retried in respect of the offence of causing grievous bodily harm.
DAVID J. I would allow the appeal for the reasons given by Gray J, and I agree with the orders he proposes.