R v Hartwick
[2005] VSCA 264
•18 November 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| THE QUEEN v. LISA JANE HARTWICK | No. 65 of 2003 |
| THE QUEEN v. CELIA KATHLEEN CLAYTON | No. 76 of 2003 |
| THE QUEEN v. JOHN DOUGLAS HARTWICK | No. 77 of 2003 |
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JUDGES: | CHARLES, CHERNOV and NETTLE, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 23-25 November and 10 December 2004 | |
DATE OF JUDGMENT: | 18 November 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 264 | First Revision: 7 December 2005 |
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CRIMINAL LAW – Murder – Complicity – Common purpose - Extended common purpose – Aiding and abetting – Whether judge erred in directions as to common purpose, extended common purpose or aiding and abetting – Manslaughter – Manslaughter by extended common purpose – Whether judge erred by failing to leave manslaughter by extended common purpose as an available alternative verdict – Markby manslaughter – Whether Markby manslaughter different to manslaughter by extended common purpose – Whether judge erred by failing to leave Markby manslaughter as a separate available alternative verdict – Provocation – Whether judge erred by failing to leave provocation as an available partial defence – Trial – Whether judge erred by failing to order separate trials for co-accused – Discharge of jury – Whether disclosure of evidence of bad character necessitated discharge of jury – Evidence – Consciousness of guilt – Lies – Need to identify lies said to evidence consciousness of guilt – Whether judge erred by failing sufficiently to identify lies said to evidence consciousness of guilt – Prior inconsistent statements – Adequacy of directions as to prior inconsistent statements – Propensity – Whether judge erred by failing to give propensity direction – Causing serious injury intentionally – Commission of offence by extended common purpose – Whether judge erred in failing to direct on need for accessory to foresee intentional causing of serious injury by co-offender - Appeal against conviction allowed in part – Sentencing – Re-sentencing substantially in accordance with trial judge’s sentencing disposition.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C.G. Hillman, SC with | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the applicant Lisa Jane Hartwick | Mr M.J. Croucher | Robert Stary & Associates |
| For the applicant Celia Kathleen Clayton | Mr C.B. Boyce | Patrick W. Dwyer |
| For the applicant John Douglas Hartwick | Mr P.F. Tehan, QC with Mr L.C. Carter | McNamaras |
CHARLES, J.A.:
CHERNOV, J.A.:
NETTLE, J.A.:
After a trial in the Supreme Court that lasted 46 sitting days, on 29 November 2002, the jury found each of John Douglas Hartwick (“John Hartwick” or “Hartwick” or “John”), Lisa Jane Hartwick (“Lisa Hartwick” or “Lisa”) and Celia Kathleen Clayton (“Clayton”) guilty of one count of murdering Stephen Borg (“Borg” or “the deceased”) (count 1) and one count of intentionally causing serious injury to Paula Rodwell (“Rodwell”) (count 2). After hearing a plea in mitigation made on behalf of each applicant, on 13 March 2003, the learned trial judge imposed a sentence of 18 years’ imprisonment on each of the applicants in respect of the count of murder. In relation to the count of intentionally causing serious injury, his Honour sentenced each of John and Lisa Hartwick to twelve months’ imprisonment, and Clayton to eighteen months’ imprisonment. His Honour directed that the sentences on count 2 imposed on John and Lisa Hartwick be served wholly concurrently with those imposed on count one, thus imposing, in each case, a total effective sentence of 18 years’ imprisonment. His Honour set a minimum term of 14 years’ imprisonment before either would become eligible for parole. In relation to Clayton, his Honour directed that six months’ of the sentence imposed on count 2 be served cumulatively with that imposed on count 1, thus imposing a total effective sentence of 18 years and six months’ imprisonment. His Honour fixed a minimum term of 14 years and six months’ imprisonment before Clayton was to be become eligible for parole.
All three applicants now seek leave to appeal against conviction on a variety of grounds. Clayton also seeks leave to appeal against sentence. After filing their respective notices, all applicants foreshadowed substantial amendments to the proposed grounds of appeal against conviction and, in the result, a directions hearing was conducted by Charles, J.A. on 16 November 2004 to clarify the extent of the proposed amendments and to settle other matters relevant to the conduct of the appeal. At the outset of the hearing of the appeal before us, the parties applied formally to amend the grounds of appeal. The respondent did not oppose the application and, in the circumstances, the Court granted the applicants leave to make the amendments sought. We will discuss the amended grounds that were pursued later, but first we will describe briefly the circumstances of the offending.
Circumstances of offending
It is convenient to describe first the offenders and the victims and the relationships between them. The victim of the offence that is the subject of count 1, Borg, was killed on 23 May 2001. He was then 30 years old. He had a relationship with Rodwell, who lived at 37 Karingal Drive, Karingal, an outer suburb of Melbourne, and was the father of three of her children. He did not live with Rodwell but was visiting her at the time of the offending. Borg was a regular user of drugs and had a long criminal history. Rodwell also used drugs and, as was the case with each of the applicants, had a number of prior convictions. John Hartwick (who was aged 49 at the time of the offending) and Lisa (who was then aged 38) had been married to one another, but at the relevant time were divorced. Notwithstanding this, and despite the fact that Lisa had obtained an intervention order against John in October 2000, they generally maintained a reasonably amicable relationship and John often visited Lisa and stayed over at her premises at 3 Karingal Drive. Both knew Borg and Rodwell, although they were not friends. In fact, there was some evidence given at the trial that indicated that the relationship between John Hartwick and the deceased had, in the past, been acrimonious. Clayton, who was then aged 24 years, was a friend of Lisa Hartwick and had only met Rodwell on two occasions prior to the date of the offences; it seems that she had never met the deceased.
We now turn to the circumstances leading to Borg’s death. In the afternoon of 23 May 2001, Clayton, who lived in Hastings, visited Lisa Hartwick at her home. Later that evening, together with Lisa’s son, they drove to the local shopping centre and on the way back noticed Rodwell standing at a nearby bus stop. It should be mentioned, by way of background, that Lisa Hartwick disliked Rodwell because she believed that Rodwell had informed on John Hartwick to the police, contrary to their code of conduct. Being of that frame of mind, she stopped her car, went over to Rodwell and assaulted her, saying, amongst other things, that Rodwell owed John Hartwick $400 and accused Rodwell of calling him a “dog”, thereby alleging that he was a police informer. Rodwell denied these assertions and, at her suggestion, they all went to Lisa’s house to clear these matters up with John Hartwick. When John was told what had occurred he said to Lisa that she had made a mistake and that it was in fact Borg who had accused him of being a “dog”. The two women applicants then apologised to Rodwell and drove her home. When Rodwell reported the incident to Borg, who had shortly before this consumed a quantity of drugs, he became furious at the way she had been treated. In this agitated state, he drove to Lisa Hartwick’s house in a stolen car and accelerated into her driveway, smashing his car into the rear of Clayton’s rental car. As a consequence, her car was propelled into one that was parked directly in front of it. Not surprisingly, the two cars were substantially damaged and some damage was also caused to the house. The deceased then reversed out of the driveway and returned to Rodwell’s home where the two consumed a cap of heroin.
When the applicants discovered what had occurred in the driveway they became very angry and agitated. A number of witnesses, who were neighbours of Lisa Hartwick, gave evidence that after the deceased had smashed into Clayton’s car they saw the applicants all in an angry state and heard them yelling about taking revenge against Borg. For instance, Larene Pearce, her son Dale, and his friends Stephen Smith and Leah Robertson, were at Lisa’s house when Borg drove his vehicle into the parked cars. Larene Pearce was a long-time friend of the Hartwicks. In her evidence-in-chief she said that the applicants were very angry at the incident and that she, Pearce, had left the house, taking her son and the two other children with her because she “didn’t like the atmosphere”. She said that she saw each of John Hartwick and Clayton with a knife. Stephen Smith gave evidence that the two women applicants were particularly angry and that, at various times, John Hartwick had told them to “calm down.” Similarly, Keith John Peter Canham (“Canham”), who lived in the house opposite 3 Karingal Drive and had observed the deceased’s car being driven into the parked cars, said that John Hartwick had tried to calm down the two women applicants. According to Canham John Hartwick told them that he would “sort it out”, but he rejected the contention put to him in cross-examination that John was a “peacemaker” in relation to the incident. He said that John had told his co-offenders - “Lets go down and fix these bastards” and that Clayton had yelled - “I’m going to cut the bastard’s throat.” Canham’s wife, Rhonda Canham, said in her evidence that the two women applicants had made reference to a “sheila” and said - “Lets go down and sort them out.”
According to the evidence of the Crown witnesses, over the course of half an hour or so after the incident in the driveway, Lisa Hartwick proceeded to collect metal poles and pieces of wood from around the property. Canham said that he saw her carrying three poles – one of which he identified as a galvanised water pipe (but which turned out to be a metal pipe from a vacuum cleaner), a pole marked “Bi-Lo” (which was a shopping trolley handle) and a wooden cricket stump. Before she left for Rodwell’s premises, Lisa arranged for a friend to come and collect her son and for her car, which had not been damaged, to be placed in Canham’s garage. At some point, either before or after Lisa began collecting the metal poles and wood, John Hartwick sped off in his car in chase of a white utility vehicle that had driven past the property a number of times that evening. He did so because Lisa said that she believed its driver may have been somehow involved in the incident. He was away for approximately ten minutes during which Clayton went to a nearby house. When she returned, she was carrying a large carving knife. The evidence of Canham’s son, Aalvis, was that Lisa Hartwick was impatient for Clayton to return and told him to fetch her and tell her that if she did not come back soon, she and John would go to find Borg without her. According to Canham a good 40 minutes elapsed before the three applicants left.
Having armed themselves as described, the offenders drove to 37 Karingal Drive where they banged on the front door, demanding to be let in and yelling words to the effect “we’re going to get you.” At this point, Rodwell pleaded with Borg to go out by the back door and leave the matter to her to sort out, presumably believing that she could calm the applicants. Once the deceased left the house, Rodwell went to the front door. When she opened it one of the applicants struck her on the head with a metal pole, inflicting a wound that later required eight stitches. The applicants then forced her back into the house and on to the couch where one or other of the two women held her at knife point. One of the applicants cut the telephone wires to the house and at one point, Lisa Hartwick took Rodwell, who was bleeding heavily from her wound, to the kitchen and attempted to stem the flow of blood. John and Lisa Hartwick then went through the house looking for the deceased. A short time later Borg returned to the house and when the applicants saw him they attacked him with their weapons. According to Rodwell, at first Borg and John Hartwick attempted to “dagg” (stab) one another. John Hartwick then called for assistance from his co-offenders, who took it in turn to participate in attacking Borg, while Clayton held Rodwell hostage. In the result, the deceased was severely beaten with the poles and stabbed a number of times; his left ear was almost severed, five of his teeth were knocked out and he was fatally stabbed on the left side of his chest, the knife puncturing his heart and a lung. He died a short time later. Near the end of the frenzied attack, which lasted 30 to 40 minutes, John Hartwick was, according to Rodwell, accidentally stabbed by Lisa Hartwick and it was only at that point that the attack on the deceased stopped. In the course of their attack, the applicants took several items from the victim’s pockets, including money and cannabis, supposedly as compensation for the damage caused by him to Clayton’s vehicle. The applicants then returned to 3 Karingal Drive, but before they left Rodwell’s house they stole a number of items and Lisa splashed water over the wall unit in order to remove any fingerprints. According to Rodwell, Lisa Hartwick said to her: “You know the rules – no dogging.” After they left, Rodwell ran to the neighbours’ house from where she called for assistance and shortly thereafter the ambulance and police arrived. Borg died a short time later from the injuries he sustained during the attack.
Summary of Crown case
We now turn to give a brief summary of how the Crown put its case at trial in respect of each of the two counts. As will be explained more fully later, in respect of count 1 the Crown contended that, although it could not identify which of the applicants inflicted the fatal stab wound, each was guilty of murder of the deceased on the basis of complicity. Alternatively, the Crown argued, each was guilty of manslaughter. The Crown put its case on murder by complicity on three alternative bases. The principal argument was that the killing occurred in the course of their implementation of a plan to cause really serious injury to the deceased. The Crown argued, in the alternative, that the applicants were guilty of murder because each had agreed to assault the deceased using weapons and reasonably foresaw the possibility that death or really serious injury might be intentionally inflicted on Borg by one of them in the course of their carrying out the agreed lesser crime. In the further alternative, the Crown argued that the two applicants who did not inflict the fatal wound aided and abetted the principal offender by being present when the fatal stabbing occurred and by intentionally helping, encouraging, or conveying their assent to, the principal in his or her commission of the murder. The Crown’s principal case on count 2 was that Clayton had intentionally caused serious injury to Rodwell by hitting her on the head with a metal pole and that the other applicants were also guilty on the basis that they were complicit in the commission of the offence. The Crown relied on essentially the same three alternative routes for finding complicity as it did in relation to count one.
Grounds of appeal
We now turn to consider the grounds of appeal that were pressed for the applicants and we do so principally in the order in which they were argued. Not surprisingly, there was considerable overlap in the grounds on which each of them eventually relied, but counsel adopted the sensible course of dividing argument between them so that one counsel presented the case on a particular ground and the others generally adopted such submissions, adding only matters that were thought to be of particular relevance to the applicant concerned.
Error in direction on extended common purpose
The first matter that was argued, principally by Mr Croucher for Lisa Hartwick under cover of ground 1 of her amended notice, was that his Honour erred in his direction to the jury as to the operation of the principle of extended common purpose in respect of counts 1 and 2. In general terms, it was said that the judge failed to tell the jury that before they could properly convict the accessory of the more serious crime that was perpetrated by the principal offender they had to be satisfied beyond reasonable doubt that the accessory foresaw the possibility that one of the co-offenders might, in the course of carrying out their unlawful agreement or understanding to assault Borg with weapons, in relation to count 1, intentionally kill the deceased or cause him really serious injury and, in respect of count 2, intentionally cause Rodwell serious injury. More particularly, it was submitted that, although his Honour correctly pointed out to the jury that in order to convict the accessory of the two counts on the basis of extended common purpose the Crown had to establish relevant foreseeability by him or her of the principal offender’s actus reus, he failed to tell them that the Crown also had to prove foreseeability on the part of the accessory of the principal’s intention to commit the crime in question. A like argument was put by the applicants in relation to count 2. Counsel argued that such error on his Honour’s part resulted in a substantial miscarriage of justice and that, therefore, the convictions must be set aside and a new trial ordered. We now turn to examine the arguments in the context of each of the two counts.
Before dealing with the specific arguments, however, it is convenient to explain briefly the circumstances in which a document, marked by his Honour as “DPP 22”, came into existence and how it was used at the trial. As will become apparent, it was provided to the jury in the course of the judge’s charge on the basis that it set out in summary form the elements of the various offences that the Crown had to establish if it were to secure conviction on the two counts in question. The form of this document evolved as the charge progressed and, in the course of its development, counsel for each party made submissions to his Honour about its contents. The document was produced in two parts, which were then combined to constitute DPP 22. The first part, which initially constituted a self-contained document, dealt only with the elements that were said to constitute murder by complicity and the alternative of manslaughter. Later, another written summary was produced that dealt only with the elements of the charge in count 2. As each document was settled it was provided to the jury and later, when DPP 22 was eventually produced, it replaced the earlier documents. In large part, his Honour directed the jury on the relevant aspects of murder, manslaughter and count 2 by reference to that document but, as will be seen, his Honour’s oral charge explained, and materially expanded, its contents.
Murder by extended common purpose – error in direction
First applicant – Ground 8(a)
Second applicant – Ground 1(a)
Third applicant – Ground 5
Ground 1(a) in Lisa Hartwick’s, ground 8(a) in John Hartwick’s and ground 5 in Clayton’s notice of appeal are that the judge erred in the directions he gave concerning the application of the doctrine of extended common purpose to murder. The essence of the complaint is that the judge did not convey to the jury that in order to convict an accused of murder on the basis of the doctrine of extended common purpose the jury had to be satisfied that the accused foresaw the possibility that in carrying out the common enterprise a co-accused might act against the deceased with the intent to kill or inflict really serious physical injury.
In order to convict an accused of murder on the basis of the doctrine of extended common purpose the jury had to be satisfied that the accused foresaw the possibility that the co-accused would act with intent to kill or inflict really serious physical injury. The law was so stated by the High Court in McAuliffe v The Queen as follows:
“The scope of the common purpose is no different from the scope of the understanding or arrangement which constitutes the joint enterprise; they are merely different ways of referring to the same thing. Whatever is comprehended by the understanding or arrangement, expressly or tacitly, is necessarily within the contemplation of the parties to the understanding or arrangement. That is why the majority in Johns[1] in the passage which we have cited above spoke in terms of an act which was in the contemplation of both the secondary offender and the principal offender. There was no occasion for the Court to turn its attention to the situation where one party foresees, but does not agree to, a crime other than that which is planned, and continues to participate in the venture. However, the secondary offender in that situation is as much a party to the crime which is an incident of the agreed venture as he is when the incidental crime falls within the common purpose. Of course, in that situation the prosecution must prove that the individual concerned foresaw that the incidental crime might be committed and cannot rely upon the existence of the common purpose as establishing that state of mind.”[2]
[1]Johns (TS) v. The Queen (1980) 143 C.L.R. 108 at 130-131 per Mason, Murphy and Wilson, JJ.
[2](1995) 183 C.L.R. 108 at 117 -118.
That position was also recently reaffirmed by a majority of the High Court in Gillard v The Queen, thus:
“[112] As McAuliffe reveals, the contemplation of a party to a joint enterprise includes what that party foresees as a possible incident of the venture. If the party foresees that another crime might be committed and continues to participate in the venture, that party is a party to the commission of that other, incidental, crime even if the party did not agree to its being committed. In such a case, as was said in McAuliffe, "the prosecution must prove that the individual concerned foresaw that the incidental crime might be committed and cannot rely upon the existence of the common purpose as establishing that state of mind". To hold the individual liable for the commission of the incidental crime, when its commission is foreseen but not agreed, accords with the general principle that "a person who intentionally assists in the commission of a crime or encourages its commission may be convicted as a party to it". The criminal culpability lies in the participation in the joint criminal enterprise with the necessary foresight.”[3]
[3](2003) 219 C.L.R. 1 at 36-37 [citations omitted], per Hayne, J, with whom on this point Gleeson, C.J. and Gummow and Callinan, JJ. agreed.
Consequently, the judge was bound to make clear to the jury that they could not convict any of the applicants of murder on the basis of the doctrine of extended common purpose unless they were satisfied that the accused foresaw that murder might be committed. In turn that necessitated that the judge make clear to the jury that they could not so convict any of the applicants unless they were satisfied that the applicant foresaw that a co-accused might act in the carrying out of the joint criminal enterprise with intent to kill or to inflict really serious physical injury upon the deceased.
In our opinion, however, the judge made that perfectly clear. Relatively early in his charge, when explaining the elements of murder, the judge told the jury:
“Now, murder also requires proof by the Crown that the act or acts which caused the death were done with a particular guilty mind. And what the Crown must establish here is that the person who fatally stabbed Steven Borg either intended to kill him or to do really serious injury to him. The law does not allow a person to say, "Oh, I only intended to injure him really seriously, not to kill him", as a defence to murder. If the accused's intention was either to kill - the accused who fatally stabbed Steven Borg's intention was either to kill or do really serious injury, then the necessary intent is established.”
Later, after explaining the doctrine of common purpose or concert, his Honour moved on to the doctrine of extended common purpose and said that:
“But the Crown advances a second way in which it says you should be satisfied complicity is established. You will appreciate that it sometimes happens that one or more people involved in an agreed joint criminal enterprise, if I can call it that, do something more than the crime originally agreed upon, and what is the situation then? Well, let me give you this example.
Supposing you have two people who agree to go on to a property and engage in some fishing in a private dam without permission and steal the fish from it. Suppose, while they are fishing, the owner comes along and complains about it. And one of the two thieves kills the owner with a fish knife. Now, plainly, both of them, if they have stolen some fish at that point, are guilty of stealing fish, even though only one of them might have been doing the fishing, but that was their arrangement or understanding, to go there and steal some fish.
What about murder? Let us assume that the one who stabbed the owner is guilty of murder. What about the other one? Is the other one guilty of murder?
Now, it will not surprise you to know that there are probably two ways that question could be answered, but we only need to worry about one of them, and that is the one I will deal with. That is this. Assuming that the stabbing was outside anything that had been contemplated as necessary to carry out their agreement and so was outside it, the other stealer of the fish will nonetheless be guilty of murder if he or she foresaw the possibility of that crime being committed in carrying out the theft of the fish.
Thus the law is that a person who enters into an agreed understanding or arrangement with another to commit a crime is also liable for any other crime committed while carrying out that joint criminal enterprise where that person foresaw that that crime might be committed in carrying out that joint criminal enterprise.”
Bearing in mind that the judge had already explained that an essential element of murder was the intent to kill or to inflict really serious physical injury, his Honour’s instruction that an accused had to foresee that the crime [murder] might be committed in carrying out the joint criminal enterprise was perhaps all that was required to convey to the jury that they had to be satisfied that the accused foresaw that a co-accused would act with intent to kill or to inflict really serious injury. In fact the judge went much further in emphasising to the jury that they had to be satisfied that the accused had that foresight. After explaining the concept of aiding and abetting, his Honour handed to the jury a document that became part of DPP 22 which, in part read as follows:
“Count 1 - Murder
1. Understanding or arrangement to kill
That the fatal stabbing was done pursuant to an agreed understanding or arrangement between the “stabber” and the Accused you are considering to kill or cause really serious injury to the Deceased.
To that end you must be satisfied BRD[4] of each of the following-
[4]The judge’s shorthand for “Beyond Reasonable Doubt”.
(a) An accused fatally stabbed the Deceased and in doing so
·Intended to kill/cause really serious injury at the time of the stabbing
·Acted consciously, voluntarily and deliberately
·Did not act in self defence (the elements of murder)
(b)That the stabbing was done pursuant to an agreed understanding or arrangement between the “stabber” and the accused you are considering that the Deceased be killed or really seriously injured.
2. Understanding or arrangement to assault
That the fatal stabbing was done pursuant to an agreed understanding or arrangement between the “stabber” and the Accused you are considering to assault the Deceased with a weapon or weapons.
To that end you must be satisfied BRD of each of the following-
(a) An accused fatally stabbed the Deceased and in doing so :
· Intended to kill/cause really serious injury at the time of the stabbing
· Acted consciously, voluntarily and deliberately
· Did not act in self defence
(b) That the stabbing was done pursuant to
· An agreed understanding or arrangement between the Accused you are considering and the “stabber” that the Deceased be assaulted with a weapon or weapons, and
· The Accused you are considering foresaw as a possibility in the carrying out of the agreed understanding or arrangement that death or really serious injury would occur by a conscious, voluntary and deliberate act of one of them not done in self defence.
3. Aiding and abetting
That the Accused you are considering aided and abetted the “stabber” (he/she not being party to a prior understanding or arrangement).
To that end you must be satisfied BRD of each of the following-
(a) An accused fatally stabbed the Deceased and in doing so
· intended to kill/cause really serious injury at the time of the stabbing
· acted consciously, voluntarily and deliberately
· did not act in self defence.
(b) The Accused you are considering was
· present when the fatal stabbing occurred
· aware that the Deceased was being consciously, voluntarily and deliberately assaulted with intent to kill or cause really serious injury and not in self-defence
· intentionally helped the stabber to commit the crime, or
· intentionally encouraged him/her by words or presence and behaviour, or
· intentionally conveyed to him/her assent to or concurrence in the commission of the crime.
As to the particular accused you are considering if you are satisfied beyond reasonable doubt that the Crown has proved one of the above three alternatives, that accused is guilty of murder.
As to the particular accused you are considering, if the Crown has not proved beyond reasonable doubt that
A. any accused fatally stabbed Borg, the accused under consideration should be acquitted on Count1.
B. the “stabber” intended to kill or cause really serious injury at the time of the stabbing but has proved the other elements of murder (set out in sub-para (a) of paras 1, 2 and 3), the accused under consideration should be acquitted of murder but you will need to consider the charge of manslaughter.
C. any one of the other elements of murder set out in sub-para (a) to the above paragraphs, that accused should be acquitted on Count1.
D. that the accused was complicit in the murder in any of the three ways referred to in sub-para (b) of paras 1, 2 and 3 that accused should be acquitted of murder but you will need to consider the charge of manslaughter.”
It was submitted on behalf of the applicants that the judge’s charge was deficient to the extent that whereas the sections of the document which dealt with “Understanding or arrangement to kill” and “Aiding and abetting” made plain that the accused under consideration had to have foreseen the possibility that the stabber would act with intent to kill or inflict really serious physical injury, the section of the document which dealt with “Understanding or arrangement to assault” made no reference to the need for the jury to be satisfied that the accused under consideration had that degree of foresight. Thus, so it was said, the jury may have thought it open to convict the accused of murder on the basis of the doctrine of extended common purpose without being satisfied that the accused had foreseen that a co-accused might act with intent to kill or inflict really serious physical injury.
But in reality there was no chance of that occurring. For in addition to outlining the elements of murder in the way to which we have already referred, the judge also directed the jury that:
“Now, I just want to hand you the document dealing with murder and manslaughter at this stage, not the other one.
Now, at first glance, that is going to look a bit daunting, I think. But, let me try to explain to you the structure of it and mention to you that, as you come to conclusions about the facts in this case in your deliberations, so some parts of the document may cease to be parts you need to consider. But that will depend on how you go, I suppose.
Now, firstly, just taking the part dealing with murder. You will see there are three paragraphs, numbered 1, 2 and 3. The first sets out the elements the Crown must prove of complicity in murder, against each accused, where what is alleged is an understanding or arrangement to kill or cause really serious injury. That is the first alternative I mentioned on complicity. In paragraph (a), we have set out the elements of murder. In paragraph (b), we have set out the definition and elements of complicity. And that is repeated through the document.
So, where - you look at the second, which is complicity in an agreement to assault with weapons, which turns on the foresight of the accused under consideration as to whether death or really serious injury would occur by conscious voluntary act, etc., that is, by murder; the third is aiding and abetting, and the same process is there, you will see that, in (b), there, the elements of aiding and abetting are set out.
So, going back to 1, 1(b) sets out what has to be proved to establish complicity, in an agreed understanding or arrangement between the stabber and the accused that the deceased be killed or really seriously injured.
No.2, the definition of the understanding or arrangement is set out there and the elements the Crown must prove where it is unable to establish, or should I say, should it be unable to establish an agreement to kill or cause really serious injury. But if it can establish what is set out in 2(b), it will establish also complicity in murder in respect of the particular accused: "that is, the stabbing was done pursuant" - reading out from 2(b) - "an agreed understanding or arrangement between the accused you are considering and the stabber, that the deceased be assaulted with a weapon or weapons." And then the next dot paragraph , "The accused you are considering foresaw as a possibility in the carrying out of the agreed understanding or arrangement that death or really serious injury would occur by a conscious, voluntary and deliberate act, of one of them not done in self-defence".
Now, can I just say something about that, briefly. As I have indicated to you, when you are looking at that approach to complicity, the law requires foresight that the crime, foresight on the part of the accused you are considering that the crime in question might be committed. It does not require, as I have said, the person alleged to be complicit to form any legal judgment.
The reference is, as you will see there, to the facts essential to prove that the crime - to prove what crime was foreseen. And can I say as to that also, that the Crown does not have to prove beyond reasonable doubt that each accused sat down and went through that check list, that is, death or really serious injury would occur by a conscious, voluntary and deliberate act of one of them not done in self-defence. But, it is talking about the foresight that accused had. And you will appreciate that it is possible for someone to have foresight as to the sort of act that was about to occur and its character and nature and all aspects of it, in an instant, that is possible.
The same comments apply in 3(b), the - "In aiding and abetting the accused must be aware that the deceased was being consciously, voluntarily and deliberately assaulted with intent to kill or cause serious injury and not in self-defence.".
Those are the essential facts of the crime of murder. And to aid and abet you must be aware of those facts. But again, I would not want you to think that the Crown has to prove that at or shortly prior to the critical moment an accused sat down and carefully checked through those items. The question is, was the accused aware of those relevant facts, establishing those elements at that time of the stabbing?” (Emphasis added.)
Given the terms in which the judge had already defined the “crime” of murder, both orally and in the first part of the document, and his Honour’s direction to the jury that in order to convict on basis 2(b) as set out in the document (i.e. on the basis of the doctrine of extended common purpose) they had to be satisfied that the accused under consideration foresaw the possibility that the crime would be committed, there can be no doubt that the jury would have understood the need to be satisfied that the accused had foreseen that “the stabber” would act with intent to kill or to inflict really serious physical injury.
Furthermore, when his Honour dealt with the elements of liability of an accessory to murder by extended common purpose, he gave the jury a clear and helpful hypothetical example which highlighted that foreseeability by the accessory of the relevant intent on the part of the principal perpetrator was an essential ingredient of the crime charged. Significantly, in the context of the hypothetical situation of a fatal stabbing by one of two men in the course of their carrying out an agreement to steal fish from the deceased’s dam, his Honour said:
“… [I]t sometimes happens that one or more people involved in an agreed joint criminal enterprise … do something more than the crime originally agreed upon, and what is the situation then? Well, let me give you this example.
Supposing you have two people who agree to go on to a property and engage in some fishing in a private dam without permission and steal the fish from it. Suppose, while they are fishing, the owner comes along and complains about it. And one of the two thieves kills the owner with a fish knife. Now, plainly, both of them, if they have stolen some fish at that point, are guilty of stealing fish, even though only one of them might have been doing the fishing, but that was their arrangement or understanding, to go there and steal some fish.
What about murder? Let us assume that the one who stabbed the owner is guilty of murder. What about the other one? Is the other one guilty of murder?
Now, it will not surprise you to know that there are probably two ways that question could be answered, but we only need to worry about one of them, and that is the one I will deal with. That is this: Assuming that the stabbing was outside anything that had been contemplated as necessary to carry out their agreement and so was outside it, the other stealer of the fish will nonetheless be guilty of murder if he or she foresaw the possibility of that crime being committed in carrying out the theft of the fish.
Thus the law is that a person who enters into an agreed understanding or arrangement with another to commit a crime is also liable for any other crime committed while carrying out that joint criminal enterprise where that person foresaw that that crime might be committed in carrying out that joint criminal enterprise.” (Our emphasis.)
Given that the jury had been made to understand that the crime of murder involved intention to kill or cause really serious injury on the part of the murderer, they would have understood from his Honour’s example that an accessory will only be guilty of the more serious crime if he or she foresaw the possibility that the offender might intentionally kill or cause really serious injury to the victim during the execution of their common purpose.
Mr Croucher submitted that the jury would have treated DPP 22 as encapsulating all the essential elements of the relevant offences and, therefore, as effectively putting to one side his Honour’s oral charge. He pointed to the following matters as making it likely, or at least creating the real risk, that the jury would have had regard to DPP 22 to the exclusion of his Honour’s oral charge. First, he said, the jury had the document available to them during their deliberations, making it likely that, as a matter of convenience, they would use it as the repository of the elements of the offence that they were analysing. Indeed, said Mr Croucher, his Honour repeated his invitation to the jury to use the document as a “check list” shortly before they retired to consider their verdict so that they would have had the document impressed on their minds as they embarked upon their deliberations. Secondly, the jury were directed by reference to the document. And thirdly, the relevant oral directions on this issue were quite brief when compared with those detailed in DPP 22.
There is some force in these submissions. It might indeed have been preferable for his Honour to have said, in terms, in his oral charge and in DPP 22, that an essential ingredient of murder by extended common purpose was foreseeability by the accessory of the possibility that a co-offender might intentionally kill or cause really serious injury to the deceased. But the real question is, we think, whether this requirement was sufficiently conveyed to the jury in his Honour’s charge. In that context, as the High Court[5] emphasised in R. v. Chai[6], two matters should be borne in mind when considering the attack on the charge:
“First, it is not the function of a trial judge to expound to the jury principles of law going beyond those which the jurors need to understand to resolve the issues that arise for decision in the case. Secondly, the law should be explained to the jury in a manner which relates it to the facts of the particular case and the issues to be decided.[7] The judge’s task was not to compose an essay on the topic of accessorial liability for manslaughter. It was to explain to the jurors so much of the law as they needed to know in order to decide the issues that arose from the charges, the evidence, the case for the prosecution and the defence case. It would, therefore, be wrong to take the oral or written directions given at this trial as providing a model to be used in another trial.”
[5]Gleeson, C.J., Gummow, Kirby, Hayne and Callinan, JJ.
[6](2002) 76 A.L.J.R. 628 at 632 [18]. See also R. v. Jost (2002) 135 A.Crim.R. 202 at 208-209.
[7]Alford v. Magee (1952) 85 C.L.R. 437.
In our judgment his Honour’s oral charge and the aide memoire - DPP 22 – did convey sufficiently to the jury the essential elements of murder by extended common purpose, including foreseeability by the accessory charged with murder of the possibility that a co-offender might intentionally kill or cause really serious injury to the victim in the course of carrying out the agreed criminal enterprise. Although this element was not stated in terms in the above paragraph 2(b) of DPP 22,[8] we consider that the jury would have appreciated that such a requirement was implicit in the document. We have come to this conclusion essentially for the following reasons. First, we are of the view that it would have been plain to the jury from what his Honour said to them about DPP 22 that its terms were not to be considered in isolation from the remainder of his Honour’s charge. His Honour made it apparent that the document was, in effect, an aide memoire, that it was a “check list” and that they should use it if they “needed it”. This clearly implied, we think, that the jury should bear in mind the whole of the charge as to the elements of the several offences that they were considering and refer to DPP 22 as a guide and only if they felt there was a need to do so. Secondly, there is no doubt that the jury understood that an essential element of the crime of murder is intention by the perpetrator to kill the deceased or cause him really serious injury. Thirdly, the oral direction to the jury as to the elements of murder by extended common purpose, particularly by reference to the example of the fishermen, would have made it plain to them that they had to be satisfied that the accused under consideration foresaw the possibility that the principal would commit “that crime”, namely, murder, and that this foresight by the accessory must be of all the essential elements of murder, including the principal’s intention to kill or cause really serious injury to the deceased. Given the terms in which his Honour had already defined murder – in paragraph (1)(a) of DPP 22 and his oral charge – the jury would have understood that an essential element of murder by extended common purpose was foresight by the accessory of the principal’s relevant intention. Indeed, the example involving the fishermen, chosen by his Honour, fitted closely the wording of the charge on this aspect of the case that was sought by counsel for Clayton, who asked for a direction that an element of murder by extended common purpose involved foreseeability by the accessory that the deceased “might be murdered” by a co-offender. This is essentially what the learned trial judge told the jury in the context of his above example.
[8]See para. [18] above.
In the result, we consider that the relevant aspects of his Honour’s charge sufficiently explained to the jury so much of the requirements of the law relating to murder by extended common purpose as they needed to know in order to decide if the Crown had made out its case against the applicants on that basis, notwithstanding that, as we have said, it would have been preferable for the learned trial judge to have included, both in his oral charge and in paragraph 2(b) of DPP 22,[9] a specific reference to the requirement as to the foreseeability by the accessory of the principal perpetrator’s relevant intention.
[9]See para. [18] above.
It follows that ground 8(a) of the amended grounds of John Hartwick, ground 1(a) of Lisa Hartwick and ground 5 of Clayton, must all be rejected.
Directions regarding “possibility” in extended common purpose doctrine
First applicant – Grounds 8(b) and 12(b)
Third applicant – Grounds 6 and 12
Ground 8(b) in John Hartwick’s and ground 6 in Clayton’s notice of appeal are that the judge erred in the directions he gave concerning the doctrine of extended common purpose in that he did not provide any guidance as to the meaning of the word “possibility” beyond using the alternative “might”. It was submitted that the jury should have been directed that “possibility” means “a real or substantial possibility” and because the judge did not so direct them, the jury may have decided “on the basis that anything is possible” (presumably meaning that a remote possibility would suffice no matter how fanciful it may be). None of the applicants’ counsel at trial asked the judge to define “possibility” in his charge and no exception was taken to his Honour’s directions on the basis that no such definition has been provided to the jury.
Mr Tehan for the first applicant, and Mr Boyce for the third applicant, referred to R. v. Powell and English[10] and R v. Jenner and Masters[11] and to the editorial article by Stephen Odgers of counsel in (2004) 28 Criminal Law Journal 5.[12] They did not contend, however, that the claimed error, if established, would, by itself, be productive of a miscarriage of justice. Nevertheless, it was said, such an error, when taken together with other errors for which the applicants contended, would amount to a miscarriage of justice in accordance with the principles stated in R. v. Kotzmann[13].
[10][1999] 1 A.C. 1 at 14.
[11](2000) 110 A.Crim.R. 512 at 517 -518 per Doyle, C.J.
[12]At 7.
[13][1999] 2 V.R. 123 at 157 [114-115].
We do not consider that there is any merit in the point. First, as has been seen, the judge explained the doctrine of extended common purpose in terms which more or less accord exactly with the terms in which it was defined in McAuliffe[14] and Gillard[15]. The trial judge in McAuliffe did not define “possibility” in his charge and it was not suggested by the High Court that his Honour thereby erred or that it would have been preferable to have given a definition of that term to the jury. In Gillard the High Court considered it was sufficient for the trial judge to have told the jury that the subject of the required foresight on the part of the accessory was the commission of the crime as “a possible incident in the common criminal enterprise”. (Emphasis added.) Their Honours also spoke of “the intentional infliction of grievous bodily harm as a possible incident of the illegal venture”. (Emphasis added.) Secondly, the argument overlooks the facts of the matter and in particular that the Crown case was that the accused was guilty of murder on the basis of the doctrine of extended common purpose, in that there was an agreement to assault with weapons and that the parties to such an agreement would have foreseen the possibility of “the stabber” striking with intent to kill or inflicting really serious physical injury in the course of carrying out that agreement. Thirdly, this was a murder trial, and as was made plain to the jury over and over again, it was a most serious occasion. They knew therefore that they were not to convict unless they were satisfied beyond reasonable doubt of each and every element of the offence which was charged. In those circumstances we exclude as fanciful the suggestion that the jury may have convicted on the basis of a possibility of which they were no more satisfied than that “anything is possible”.
[14](1995) 183 C.L.R. 108 at 117-118.
[15](2003) 219 C.L.R. 1 at 11 [19] per Gleeson, C.J. and Callinan, J., and at 35-36 [108]-[112] per Hayne, J.
We add for completeness that, in our view, neither the Odgers editorial nor the two cases on which Mr Tehan relied, which we have noted earlier, assist his argument that his Honour erred in not telling the jury that, in the relevant context, “possibility” meant real or substantial possibility. There is no suggestion in that material that a trial judge should, when directing the jury on extended common purpose, tell them that “possibility” has that meaning. In Powell, Lord Steyn, to whose speech Mr Tehan drew our attention, said[16]: “The foresight of the secondary party must be directed to a real possibility of the commission by the primary offender in the course of the criminal enterprise of the greater offence”. Thus, his Lordship confirmed that, in the relevant context, “possibility” is to be taken to be a real possibility. But this does not take counsels’ argument any further given that it was common ground before us that “possibility” relevantly meant real or substantial possibility. Moreover, there is no suggestion in Powell that a trial judge must or should tell the jury that in the context of the principle of complicity, “possibility” means real or substantial possibility. Similarly, no suggestion to that effect was made by Doyle, C.J. in Jenner and Masters. In that case the court did not deal with the issue now under consideration. The relevant matter considered in Jenner and Masters was whether the trial judge should have directed the jury, in relation to a charge based on extended common purpose, that the accessory foresaw the use of the weapon by the principal perpetrator “as a substantial risk rather than as a possibility”. The learned Chief Justice concluded that it was not necessary for a trial judge to direct the jury “in terms of the risk of the further crime being committed being a substantial risk” as was claimed by the appellant in that case. This conclusion was consistent with cases such as McAuliffe, as his Honour recognised.[17] His Honour went on to say that “directions have been upheld which appear to make no reference to the concept of substantial risk, and which are expressed simply in terms of what was contemplated as a possible incident of the agreed enterprise”.
[16][1999] 1 A.C. 1 at 14.
[17](2000) 110 A.Crim.R. at 517.
In the editorial by Mr Odgers the learned commentator said: “One of the primary elements of a ‘foresight of possibility’ test is that, since most things are ‘possible’, particularly if they do in fact happen, a jury will almost invariably reason that the accused accessory must have foreseen the possibility that the principal offender might in fact commit the crime for which the accessory is to be made liable.” But in our view, even if one were to accept this general observation as being accurate, in the context of this particular case, for the reasons we have given, there was no real risk that the jury would have reasoned as contended for by the applicants or Mr Odgers.
Finally, on this aspect of the matter, we note that his Honour’s observations during his discussion with counsel that “possibility” could be taken to mean that “anything is possible” should be seen in its proper context. It is clear that the matter was raised by his Honour, as is so often done in the course of discussion between Bench and Bar, for the purpose of examining all the alternative approaches to the particular issue. But we have no doubt that his Honour correctly appreciated that “possibility” for relevant purposes meant real or substantial possibility and that it did not have a meaning based on the notion that “anything is possible”. His Honour was also well aware that the authorities recognise that it is sufficient for the trial judge to explain the principle of extended common purpose, and its operation, by reference to the accessory foreseeing the possibility of the crime being committed by a co-offender without telling the jury, in terms, that in that context “possibility” should be understood to mean a real or substantial possibility. That his Honour so understood the position is made apparent from what he said during the discussions with counsel, namely, that the authorities spoke “about real possibility”, although it interested him “that the authorities just gaily talk about the possibility, without saying more”.
Directions on accessories’ state of mind re “dangerous” and manslaughter
First applicant – Ground 9
Second applicant – Ground 2(a)
Third applicant – Ground 8
Ground 2(a) in Lisa Hartwick’s, ground 9 in John Hartwick’s and ground 8 in Clayton’s notice of appeal are that the judge erred in the directions he gave concerning complicity in manslaughter, in that:
“(i) the judge failed to direct the jury that it was necessary to prove inter alia that the applicant was party to an agreed understanding or arrangement to an assault with a weapon or weapons in such a way that a reasonable person in the position of the applicant would have realized that the assault would expose the deceased to an appreciable risk of serious injury; and
(ii) the judge misdirected the jury in terms of an agreement to assault occasioning more than trivial injury but less than really serious injury instead of in terms of an agreement to assault that a reasonable person in the position of the applicant would have realized exposed the deceased to a significant risk of serious injury.”
We do not consider that the judge erred in either of the ways contended.
The judge began his charge on manslaughter by explaining in detail the elements of the offence, as follows:
“But what I want to do at this point is talk in general terms about manslaughter... We only need concern ourselves with one form of manslaughter that is known to the law, and that is manslaughter by unlawful and dangerous act.
To prove this form of manslaughter, the Crown must prove that the fatal stabbing was a voluntary and conscious act of an accused. [T]he issue[s] that [are] flagged [are] whether the stabbing was accidental; and, secondly, that it was unlawful and dangerous. Now, the Crown must prove beyond reasonable doubt that the fatal stabbing was both unlawful and dangerous, assuming it has proved a voluntary and conscious act on the part of an accused. ‘Unlawful’ is a concept that brings in the issue of self-defence again. For the act to be unlawful, it must be forbidden in law and without lawful justification or excuse. Self-defence affords such justification or excuse. The Crown allegation is that the fatal stabbing was unlawful in the sense that it was a physical assault, it says, conducted in a hostile manner and without consent, and was not in self-defence. Those matters are in issue.
Now, I need to say something about what is involved in the element that the act be dangerous…You have to ask whether a reasonable person in the position of the person who fatally stabbed Steven Borg, in that situation, must have realised that the act or acts would expose Steven Borg to an appreciable risk of serious injury. Let me say that again: Must have realised a reasonable person in the situation of the person who stabbed Steven Borg must have realised that the act or acts would expose Steven Borg to an appreciable risk of serious injury. So the test of dangerousness is in fact an objective one. It is based not upon the stabber's actual intention but upon whether a reasonable person in that person's position would necessarily have realised that the act of stabbing exposed the deceased to an appreciable risk of serious injury. If the Crown here has proved beyond reasonable doubt that the act of an accused in stabbing the deceased was both unlawful and dangerous, in the sense I have defined those terms, and that the act was done consciously and voluntarily and was a substantial cause of the death of the deceased, then the Crown has proved that the crime of manslaughter by unlawful and dangerous act was committed. The guilt of each accused will then fall to be determined by your decision on the issue of complicity.
So let me summarise what I have just been saying. To prove manslaughter by unlawful and dangerous act, the Crown must prove beyond reasonable doubt that an act of one of the accused was a substantial cause of the death of Steven Borg, that that act was a conscious and voluntary act, that it was unlawful, and that the act which caused the death was dangerous, in the sense that a reasonable person in the situation of the person who stabbed Borg must have realised that the act would expose Borg to an appreciable risk of serious injury.”
His Honour next turned to a second document given to the jury, which later became part of DPP 22[18], in which were set out some points concerning complicity in manslaughter. It was in the following terms:
[18]See para.[11] above.
“Count 1 – Manslaughter
As to any Accused you have found not guilty of murder you will have to consider manslaughter.
To prove manslaughter by complicity the Crown must also prove BRD one of the following two alternatives –
1.Understanding or arrangement to assault. The Crown must prove BRD each of the following
(a) An accused murdered the Deceased or
he/she killed the Deceased in circumstances amounting to manslaughter by fatally stabbing the Deceased
The elements of manslaughter to be proved by the Crown BRD are:
· the “stabber” caused the death of the Deceased
· the fatal act was dangerous and unlawful,
· the act was conscious, voluntary and deliberate, and
· it was not done in self defence.
(b)
· At the time of the stabbing the accused under consideration was party to an agreed understanding or arrangement with the “stabber” to assault the Deceased with a weapon or weapons in such a way as to cause more than trivial injury but less than really serious injury.
· The stabbing occurred in the course of carrying out that agreed understanding or arrangement.
2.Aiding and abetting. If he/she aided and abetted the assault (he/she not being a party to a prior understanding or arrangement).
The Crown would have to prove BRD each of the following:
(a) An accused
· fatally stabbed the Deceased
· the fatal act was dangerous and unlawful
· the act was conscious, voluntary and deliberate
· it was not done in self defence.
(b) The Accused you are considering was
· present when the fatal stabbing occurred
· aware that the Deceased was being consciously, voluntarily and deliberately assaulted with a weapon and not in self-defence
· intentionally helped the stabber to commit the crime, or
· intentionally encouraged him/her by words or presence and behaviour, or
· intentionally conveyed to him/her assent to or concurrence in the commission of the crime.
In considering the case against each accused, if the Crown has proved BRD either of the above two alternatives, that accused is guilty of manslaughter.
In considering the case against each accused, if you are not satisfied beyond reasonable doubt that the Crown has proved:
A. any of the elements of manslaughter set out in para 1, that accused should be acquitted of manslaughter and therefore acquitted on Count 1.
B. that the accused was complicit in the manslaughter in either of the two ways referred to in paras 1 and 2 above, then that accused should be acquitted of manslaughter and accordingly acquitted on Count 1.”
The judge then directed the jury on the contents of the document in these terms:
“Now, 1(a) reflects the situation that, if … murder has been proved, but you are not satisfied beyond reasonable doubt that a particular accused was complicit in murder, you need to consider whether he or she was complicit in manslaughter. Hence you see in the opening paragraph to (a), the Crown must prove either murder or manslaughter.
Secondly,…if you are not satisfied the Crown has proved intent to kill or really serious injury beyond reasonable doubt, you will need to consider whether the stabbing was manslaughter, and that is where manslaughter itself comes in.
Now, the agreement, the agreed understanding or arrangement articulated for manslaughter, is set out in 1(b)…[T]he Crown is saying [that] there was an understanding or arrangement to assault. If you are not satisfied about there being such an understanding or arrangement, then consider aiding and abetting.
Going to the understanding or arrangement to assault, what the Crown has to prove is: at the time of the stabbing, the accused under consideration was party to an agreed understanding or arrangement with the stabber to assault the deceased with a weapon or weapons in such a way as to cause more than trivial injury, but less than really serious injury; [and] secondly, that the stabbing occurred in the course of carrying out that agreed understanding or arrangement. [Our emphasis]
And aiding and abetting, you will see follows a similar structure to that [which] you had earlier on. But in (b), you will notice that the facts [of] which the particular accused has to be proved aware are spelt out in detail appropriate to manslaughter as opposed to murder.
If aiding and abetting is the issue, the Crown has to prove that the particular accused was aware of the circumstances which demonstrated, if they did, that the stabber was acting consciously, voluntarily and deliberately assaulting Borg with a weapon and not in self-defence.”
We do not see in those directions any error of the kind suggested.
It is trite that unlawful and dangerous act manslaughter consists in the unintentional causing of death by an unlawful and dangerous act, and “dangerous” in that context means that a reasonable person in the position of the offender would have foreseen that the act created a significant risk of serious injury.[19] The judge correctly described it as such in the relevant part of the charge[20].
[19]Wilson v The Queen (1992) 174 C.L.R. 313 at 332 – 333.
[20]See [30] of the charge.
It is equally clear that in order that an applicant be convicted of manslaughter on the basis of having acted in concert pursuant to an agreed arrangement or understanding with a killer who commits unlawful and dangerous act manslaughter, the killer’s unlawful and dangerous act must have been within the scope of the agreed arrangement or understanding. So, in order to convict on that basis, the jury must be satisfied that the arrangement or understanding expressly or tacitly comprehended that in its carrying out the deceased might be so attacked with a weapon as to create an objectively significant risk of serious injury. In our opinion the judge made that plain.
It is true that the judge did not use the words “an agreement of which it was within the scope to commit an unlawful and dangerous act upon the deceased”. But his Honour was not required to use any particular form of words. His task was to bring home to the jury in terms that they were most likely to understand so much of the law as they needed to know on the matters which were in issue[21]. What the judge said to the jury was adapted to that end. Self-evidently, a reasonable person in the position of the applicant would say that to assault with weapons so as to cause more than trivial injury creates an appreciable risk of serious injury. It follows that an agreed understanding or arrangement to assault with weapons to cause more than trivial injury (albeit less than really serious physical injury) is an agreed understanding or arrangement which has within its scope the commission of an unlawful and dangerous act. The judge told the jury that the Crown had to prove an agreed understanding or arrangement with the stabber to assault the deceased with a weapon or weapons in such a way as to cause more than trivial injury, but less than really serious injury.
[21]Alford v Magee (1952) 85 C.L.R. 437 at 466; Melbourne v The Queen (1999) 198 C.L.R. 1 at 52-53.
The applicants’ argument also ignores that the judge’s charge cannot properly be read independently of the context of the conduct of the trial. It must be construed in the light of the questions which have been raised by the counsel for the prosecution and for the defence respectively[22]. And in the way in which the trial was conducted there was no issue as to whether an agreement to assault with weapons to cause more than trivial injury was conceptually capable of falling short of an agreement to commit an unlawful dangerous act. The issue was whether there was an agreement to assault with weapons to cause more than trivial injury. Indeed the idea of charging the jury in terms of an agreement to assault with weapons so as to cause more than merely trivial injury was the formulation to which the judge and counsel came together after extensive discussion of the best way of conveying to the jury the facts of which they would need to be satisfied before convicting of manslaughter by complicity. In our opinion it conveyed just that.
[22]Barker v The Queen (1983) 153 C.L.R. 338 at 368.
The efficacy of the charge derives further support from the decision of the High Court in R v Chai[23]. That case was also concerned with the adequacy of a trial judge’s charge on accessorial liability for manslaughter and in some respects the facts were similar to the facts of this case. Critically, the only relevant acts of assault were acts of serious violence such as punching, kicking, stamping on, or hitting with wooden sticks or a golf club. The trial judge gave oral directions to the jury on the elements of unlawful and dangerous act manslaughter and also gave to the jury a document in which the elements of manslaughter were described as follows:
[23](2002) 76 A.L.J.R. 628.
"MANSLAUGHTER
Elements
1.An understanding or arrangement amounting to an agreement came into existence between the particular accused and other persons to assault the particular victim.
2.In the course of the carrying out of the agreement to assault the victim and while the accused continued to be a party to the agreement, a party or parties to the agreement did an act or acts which were unlawful and dangerous, and which in fact caused the death of the victim.
3.The accused participated in some way in the joint criminal enterprise to assault the victim. It is sufficient for the Crown to prove that the accused participated in any of the following ways:
(i) The accused himself did an act or acts of assaulting by way of participating in the assaulting of the victim;
or
(ii) At the time when the act or acts which were unlawful and dangerous and which caused death ('the fatal act or acts') were done by some other party or parties to the agreement, the accused was present and knowing that that party or those parties intended to assault the victim, intentionally assisted or encouraged that party or those parties to assault the victim;
or
(iii) In the case of Mr Chai, he procured the party or parties to the agreement who did the fatal act or acts, to assault the victim;
or
(iv) At some time before the fatal act or acts were done, the accused, knowing that other parties to the agreement intended assaulting the victim, had by words or acts assisted or encouraged parties to the agreement, including the party or parties who subsequently did the fatal act or acts, to assault the victim. “
The charge was attacked in the New South Wales Court of Criminal Appeal on the basis that the references to "assault" might be taken to encompass a technical or trivial assault which, although unlawful, was not objectively dangerous. But the High Court rejected that analysis as improbable and illogical. In the High Court’s judgment it was not to be supposed that the jury should think the judge to have merely technical assault in contemplation or that the kind of assault to which he was referring was one that was significantly different from the assault that actually took place. As the High Court said:
“What the Court of Criminal Appeal regarded as a possible view of the facts, which, if taken by the jury, might lead them to understand the references to assault as references to a technical assault, or at least one that was not dangerous, was purely hypothetical. It bore no relationship to the evidence in the case, or to the way in which the case was left to the jury. The jury were told not to treat things said by counsel as evidence. Nothing in the evidence suggested the scenarios mentioned above. They are inherently improbable. They were not raised as possibilities in the summing-up. They were not raised as possibilities in the final addresses of counsel. And the jury had seen the respondent's credit challenged in cross-examination on the basis that his counsel had advanced a suggested version of the facts which was inconsistent with the respondent's own evidence. One thing that would have been clear to the jury by the end of the trial was that nobody embraced the version of the facts originally advanced in opening by the respondent's counsel.”[24]
[24]R. v. Chai (2002) 76 A.L.J.R. 628 at 633 [25].
Similar observations apply here. Given the way in which the case was conducted and the evidence which was before the jury, the suggestion that the jury would have taken the trial judge to be referring to “merely technical assault” is completely hypothetical. That conclusion is made even more certain in this case by the judge’s description of the agreement as one to assault with weapons and so as to inflict more than trivial injury.
Failure to leave unlawful dangerous act manslaughter on the basis of “extended common purpose”
First applicant – Ground 10
Third applicant – Ground 7
Ground 10 in John Hartwick’s and ground 7 in Clayton’s notice of appeal are that the judge erred by failing to leave for consideration by the jury the offence of manslaughter on the basis of extended common purpose. The argument is based upon the decisions of the High Court in Gilbert v The Queen[25] and Gillard v The Queen[26] and of this court in R vMakin[27]. It is contended that the applicants were disadvantaged by the judge’s omission to direct the jury’s attention to an alternative form of manslaughter which it is said was more likely to be understood and accepted by the jury than the form of manslaughter by concert with which they were presented.
[25](2000) 201 C.L.R. 414.
[26](2003) 219 C.L.R. 1.
[27](2004) 8 V.R. 262.
The first answer to that contention is that manslaughter by extended common purpose was not more likely to be understood and accepted than manslaughter by concert. The Crown’s case was run on the basis that there was an agreement to bash or assault with weapons, and for the reasons already given that meant an agreement to commit an unlawful and dangerous act. Manslaughter by concert was thus the form of manslaughter that was most closely allied to the way in which the case was put. To have left manslaughter by extended common purpose in those circumstances would have added nothing but unnecessary complexity and the possibility of confusion.
In the second place, and assuming for the sake of argument that an agreement to assault with weapons to cause not mere trivial injury was not necessarily an agreement to commit an unlawful and dangerous act, and thus that it had been open to leave manslaughter by extended common purpose to the jury, one can still be confident that it would not have increased the likelihood of the jury returning a verdict of manslaughter as opposed to murder. This was not a case like Gillard where the jury were left with an all or nothing choice between murder and acquittal and therefore in respect of which one cannot exclude the possibility that if an option of manslaughter had been left to the jury they might have taken that option. As the jury were directed it was open to them to acquit of murder and convict of manslaughter if they were satisfied that there was an agreement to assault with weapons so as to inflict more than trivial injury and were not satisfied that it was within the scope of the agreement to kill or inflict really serious physical injury or that the applicant had foreseen the possibility that a co-accused would kill or inflict really serious physical injury.
Moreover, if the jury had not been satisfied of the existence of such an agreement they would have acquitted altogether. If they had been satisfied of the existence of such an agreement, but nothing more, they would have convicted of manslaughter by concert. And, by the same token, the jury could not have returned a verdict of murder as opposed to manslaughter unless they were satisfied not only that there was an agreement to assault with weapons but also that it was within the scope of the agreement to kill or inflict really serious physical injury or that the applicant had foreseen the possibility that a co-accused would kill or inflict really serious physical injury.
It follows that in contradistinction to the position in Gillard, where manslaughter by extended common purpose would have provided the jury with an option between the possibility of acquittal which the jury rejected and the offence of murder of which they convicted, in this case the option of manslaughter by extended common purpose would have added an option that was even further from the offence of murder of which they convicted than the option of manslaughter by concert which they rejected. Therefore, as Mr Tehan for John Hartwick frankly conceded, it was even more unlikely that the jury would have chosen manslaughter by extended common purpose than that they would have chosen manslaughter by concert.
In the third place, as Ormiston, J.A. explained in R v Franklin[28]:
“…Where the more serious charge of murder has been the subject of the verdict, the basis for an objection to the way in which the alternative charge of manslaughter is left to the jury, so I would understand it, is that the jury may be deprived of the choice (and thereby the accused loses the benefit of the possibility) of an alternative verdict which they might (quaere, mercifully) have brought in, notwithstanding their apparent satisfaction on the tests laid down for murder, assuming they have been correctly stated.[29] Thus, on any view of the matter, the wider the bases put forward by the trial judge in his charge as to the alternative verdict, the more likely it is that a jury might choose to convict on the lesser charge. Thus, as counsel for the respondent here contended, any error in the learned judge's charge on this subject was in fact favourable to the applicant.”[30]
[28](2001) 3 V.R. 9.
[29]“See generally Gilbert v R (2000) 201 C.L.R. 414 and the authorities discussed therein. The majority seem unwilling to trust the jury to apply correctly the judge’s directions.”
[30]R. v. Franklin (2001) 3 V.R. 9 at 59 [148].
The position here is similar.
Failure to leave manslaughter on the basis discussed in Markby v The Queen
First applicant – Ground 11
Third applicant – Ground 9
Ground 11 in John Hartwick’s and ground 9 in Clayton’s notice of appeal are that the judge erred by failing to leave for consideration the offence of manslaughter on the basis discussed in Markby v The Queen[31]. It was contended that Markby recognises a species of manslaughter by complicity in addition to manslaughter by concert and manslaughter by extended concert. It was said to arise where there is an agreement to commit a crime even though the accused does not foresee a possibility that a co-accused may commit an unlawful dangerous act provided that such a possibility cannot be excluded as a matter of objective possibility. Reference was made to the judgement of Gibbs, A.C.J in which his Honour said:
“If the principal assailant has gone completely beyond the scope of the common design, and for example ‘has used a weapon and acted in a way which no party to that common design could suspect’, the inactive participant is not guilty of either murder or manslaughter: Reg v Anderson; Reg v Morris. If however the use of the weapon, even if its existence was unknown to the other party, is rightly regarded as no more than an unexpected incident in carrying out the common design the inactive participant may be convicted of manslaughter: Varley v The Queen.” (Citations omitted.)[32]
The applicants argued that by failing to leave that form of manslaughter to the jury as a separate category of manslaughter open on the facts, the judge deprived the applicants of yet another chance of acquittal of murder, in the sense contemplated in Gillard.
[31](1978) 140 C.L.R. 108.
[32]Ibid at 112–113.
One answer to that contention is that the sort of manslaughter referred to in Markby is in truth no different to the sort of manslaughter by extended concert that was dealt with in McAuliffe.The idea that Markby manslaughter is based upon an objective test of the possibility of unlawful dangerous act is a misunderstanding of the expression “no more than an unexpected incident in carrying out the common design.”[33] At least that is the view reached by O’Bryan A.J.A. in R v PDJ[34] after extensive consideration of the relevant authorities, and with respect we are inclined to agree.
[33]See R v Chai [2000] NSWCCA 320 at [15-18]; R v Duong (1992) 61 A.Crim.R. 140 at 148 – 151; R v Cozzi (1999) 73 S.A.S.R. 374 at 389–390; R v Woolley & Ors (1989) 42 A.Crim.R. 418 at 435–438; Gilles, Criminal Law 4th Ed. 1997 at pp.180-181.
[34](2002) 7 V.R. 612 at 627 [72].
A second answer is that even if Markby manslaughter were a separate category of manslaughter, the failure to leave it to the jury in this case could not have detracted from the applicants’ chances of acquittal. Like the category of McAuliffe manslaughter to which we have already referred, it ill-accorded with the way in which the case was conducted; it was beyond the range of possibilities limited by murder and manslaughter by concert; and it would have done nothing to broaden the factual basis on which a verdict of manslaughter might have been reached. Therefore we see no merit in the point.
Directions on aider and abetter’s state of mind re unlawful dangerous act manslaughter
Second applicant – Ground 2(b)
Third applicant – Ground 10
Ground 2(b) of Lisa Harwick’s and ground 10 in Clayton’s notice of appeal are that the judge erred in the directions given as to aiding and abetting unlawful dangerous act manslaughter.
The judge told the jury in both the written and oral directions on aiding and abetting that an accused was not liable to be convicted as an aider and abetter unless that accused were shown to have been “aware that the deceased was being consciously, voluntarily and deliberately assaulted with a weapon and not in self defence”. The complaint now made is that the judge should have told the jury that it was necessary for the Crown to prove that the accused was aware that the principal was assaulting the deceased and thereby exposing the deceased to an appreciable risk of injury. It is said that because the judge did not give such a direction the jury may have considered that it was enough for the Crown to establish that the aider and abetter believed that the deceased was being subjected to a minor or technical assault. From that it is said to follow that the jury may have excluded the possibility of manslaughter as far removed from the reality of the case with which they were dealing. And from that it is said to follow that the applicant may have been deprived of a chance of being convicted of manslaughter as opposed to murder.
Counsel then relied on the assertion that provocation could have been found in the deceased attacking and twice stabbing John Hartwick after the three applicants broke into the deceased’s house. On this version of the events, the three applicants had descended, armed, upon the deceased and Rodwell in their home for the purpose of taking revenge and exacting compensation in the course of which the deceased was said to have stabbed John Hartwick. But the only possible interpretation of the behaviour of the deceased, if the jury were left in any doubt that he acted in this way, was that the deceased was attempting to defend himself and Rodwell from the armed and violent assault by the three applicants upon Rodwell and himself. Insofar as the deceased’s behaviour in allegedly stabbing John Hartwick may be relied on as provocation by the applicants, any such provocation was, we think, self-induced.[110] As Crockett, J. said in R. v. Allwood[111] -
“Only if the hostile reaction goes beyond the reasonably predictable can provocation that is itself provoked be fit for consideration by a jury.”
[110]R. v. Newman [1948] V.L.R. 61 at 66; R. v. Edwards [1973] A.C. 648 at 658; R. v. Allwood (1975) 18 A.Crim.R. 120 at 133.
[111](1975) 18 A.Crim.R. 120 at 133.
As Brooking, J.A. said in R. v. Parsons[112] -
“To hold that provocation arose in this case would be to encourage savagery at the expense of civilised behaviour.”
[112](2000) 1 V.R. 161 at 166-167.
None of the grounds related to provocation has been made good.
Refusal of separate trials
First applicant – Grounds 1 and 2
Third applicant – Grounds 2, 3 and 15
By grounds 1 and 2, John Hartwick claimed that the judge erred by failing to order that he be tried separately from his co-accused. Application for a separate trial of John Hartwick was made at the outset of the first trial. The grounds argued in support of the application included that statements of the co-accused in their respective records of interview strongly implicated Hartwick in the offences, whereas he in his record of interview did not touch upon these matters. Clayton in her interview had said that Hartwick had a knife, hit Paula Rodwell and was “whacking” the deceased with a pole and jumping on his head. Lisa Hartwick in her interview said that it was the decision of John Hartwick and Clayton to go to the deceased’s house and that John Hartwick forced her to go there “otherwise [she] would have got bashed”. She said that Hartwick beat her during their marriage. She said that Hartwick and Clayton had given instructions to wash knives after the event and that he had previous dealings with the deceased concerning drugs. There were also statements in evidence by the Canhams which implicated John Hartwick, in particular Keith Canham said that Lisa Hartwick said that Hartwick “had stabbed a bloke”. There were parts of records of interview of Lisa Hartwick and Clayton which, it was claimed, tended to buttress Rodwell’s version of what occurred in the flat. It was argued that there were three accounts, those of the two co-accused and Rodwell, as to what occurred and in each of these accounts John Hartwick was said to have played a leading role whereas he had himself given no such account. In consequence it was said that as a result of all the above Hartwick would be forced to give evidence and have his extensive criminal history admitted through cross-examination by counsel for the co-accused. In fact, Hartwick did not ultimately give evidence.
The judge ruled on John Hartwick’s application for a separate trial at an early point in the first trial. His Honour applied the principles set out in R. v. Gibb and McKenzie[113] where the Full Court had said –
“Where three persons are charged with the murder of another and the Crown alleges that all three were present at the time of the killing, the interests of justice ordinarily require that they be tried together. The interests of justice are not confined to the interests of the accused. It would usually be scandalous and a serious blot on the administration of justice if the ordering of separate trials in such cases resulted in inconsistent verdicts; see R. v. Demirock [1976] V.R. 244 at 254 where the other matters of public interest to be considered are also referred to. The fact that one of the accused alleges that he was coerced by the other so far from being a reason for separating the trials will generally be a reason for adhering to a joint trial …”.
The judge noted that the Court in Gibb and McKenzie went on to consider the problem posed in joint trials of evidence of out of court statements by one accused implicating another and again quoted from the judgment –
“Such evidence will not usually justify separate trials although the trial judge will have to give the jury a special direction so that they do not misuse it.”
[113][1983] 2 V.R. 155 at 163.
The judge then in his ruling dealt with the evidence relied on by Hartwick’s counsel in seeking separate trials. As his Honour noted, in a case like the present there is a strong prima facie case against separate trials. His Honour was satisfied that there would be real additional time and expense involved in conducting separate trials, and the possibility of inconsistent verdicts. A large number of witnesses were to be called. Hartwick’s counsel had submitted that a joint trial would expose his client to serious unfair prejudice which could not be sufficiently addressed by appropriate directions to the jury about the use of evidence. Ultimately his Honour accepted that Hartwick would suffer disadvantages if the matter proceeded as a joint trial, but was not persuaded that these disadvantages created such a situation of prejudice to Hartwick that the prima facie rule should not apply.
In this Court Mr Tehan argued that a separate trial should be ordered when the applicant can show a real risk of positive injustice were he to be tried jointly, and that that risk of positive injustice might arise from any of the following factors all of which were said to be present in this case. He argued that the evidence against John Hartwick was significantly different from the evidence admissible against the co-accused. The evidence against the co-accused contained material highly prejudicial to Hartwick although not admissible against him. There was, it was submitted, a real risk that the weaker Crown case against John Hartwick would be made immeasurably stronger by reason of the inadmissible prejudicial material. It was submitted that that prejudice was not of a kind amenable to nullification by judicial direction. The evidence that was said to be so prejudicial that no judicial direction could remedy it included statements by both co-accused alleging that the applicant played an active part in the offences, the statement by Keith Canham that Lisa Hartwick had said that John Hartwick “stabbed a bloke”, and statements by Lisa Hartwick that Hartwick had been violent towards her and forced her to go to the deceased’s premises. It followed that the Crown case was that Hartwick, far from being a peacemaker, as he claimed, was the controlling influence of the events on the night of the offences. It was also submitted that because Paula Rodwell’s evidence was in part confirmed by statements of the co-accused in their records of interview, the jury would give her evidence unfair weight insofar as it concerned Hartwick.
Counsel for John Hartwick had repeated the application for a separate trial on numerous occasions. During the trial evidence was given to the effect that Hartwick had a previous hostile altercation with the deceased and had tried to run him over on the day of the offences, collected and used drugs in the past and on the night of the offences, was wont to carry knives and poles in his car, had used poles to attack a person in the past, had been previously violent towards Keith Canham, had beaten his wife during their marriage and had a propensity to steal. Mr Tehan argued that the combined force of these matters which occurred during the course of the joint trial had led to a miscarriage of justice occurring in consequence of that joint trial even though at the outset the judge might have been correct in not ordering separate trials. Accordingly it was submitted that the Court should find that the joint trial had so prejudiced the applicant that there had been a miscarriage of justice.
In his argument to this Court Mr Tehan submitted that there were at least two significant ways in which the records of interview of the co-accused and the evidence given by Rodwell had been bolstered in consequence of a joint trial being added. First, a critical question was whether Hartwick had been armed. Rodwell had said in evidence that all the accused had a knife and a bar, evidence from which he submitted she had moved from time to time. Both Clayton and Lisa Hartwick had answered questions in such a way during their records of interview as to suggest that John Hartwick was armed with a carving knife. The question whether Hartwick was armed or not was a very significant one and the evidence of Rodwell was supported by the records of interview of the co-accused.
Secondly, a major question, so Mr Tehan submitted, was whether John Hartwick played a leading role in the attack on the deceased. Rodwell’s evidence had been that John Hartwick indeed had played a leading role, saying when the deceased first appeared that “fucking oath, I’m going to kill you”. This evidence was allegedly supported both by Clayton and Lisa Hartwick in their records of interview. Accordingly, Mr Tehan submitted that the judge had been wrong to find that the credit of the chief Crown witness was not bolstered by the evidence of the co-accused in their records of interview.
Thirdly, the co-accused had given detailed accounts of the deceased’s house and the circumstances surrounding the attack on him in their records of interview, whereas Hartwick himself had given no such account. The result was much pressure had been placed on Hartwick to give evidence on oath during the trial. In consequence of a joint trial being had, the likelihood was that his prior convictions would have been cross-examined into evidence. As to these, he had extensive convictions for armed robbery and many dishonesty offences which would inevitably have been revealed to the jury. Had he been granted a separate trial he would have been able to avoid giving sworn evidence if tried on his own.
Next it was claimed that in the records of interview of the co-accused, evidence had been included of Hartwick’s bad character. Furthermore, Lisa Hartwick had said that she was forced to go down to the deceased’s house by Hartwick and that she had been directed by him after the event to wash the knives that were used.
Accordingly, so it was said, much supporting evidence had been introduced of Hartwick being armed and taking a leading role from the records of interview of the co-accused. The directions given to the jury were, it was said, quite insufficient to prevent a miscarriage of justice arising from the joint trial of the three accused.
Under grounds 2 and 15, Mr Boyce for Clayton argued that the judge erred in the exercise of his discretion in failing to order a separate trial for this applicant also, and that as a result of the course of events which developed during the trial, a miscarriage of justice was caused by virtue of Clayton also not being granted a separate trial.
In his opening address to the jury counsel for John Hartwick had argued that Clayton must have been the person responsible for the death of the deceased. Reliance was placed on evidence given by one Macko. Macko gave no admissible evidence against John Hartwick, or, for that matter against Clayton. At an earlier time, Macko was alleged to have said to police that Clayton had told him that she had stabbed the deceased in the neck. Both at committal and at trial, Macko said that this was not true and that the applicant had never said such a thing to him. These statements resulted in Clayton’s counsel formally applying for a separate trial, relying on the prejudicial statements contained in Lisa Hartwick’s record of interview, and John Hartwick’s counsel’s cross-examination of Macko. The judge ruled against the separate trial application.
Mr Boyce accepted that accused persons jointly charged with having committed one offence should ordinarily be tried together. He also accepted that the fact that one accused may seek to implicate another during the course of a trial is not a sufficient ground for granting separate trials. He argued however that the trial judge’s discretion to order a separate trial ought be exercised in order to preserve an accused’s right to fair trial and that the basic question for the judge was whether the prejudicial effect of any admissible evidence could be neutralised by appropriate instruction to the jury. Mr Boyce argued that although the judge may have made no error in failing to grant a separate trial, it was apparent with the benefit of hindsight that a miscarriage had arisen by virtue of there having been a joint trial, in particular because of the evidence obtained through the record of interview of Lisa Hartwick accusing Clayton of being the “stabber”, and because of the attempt by counsel for John Hartwick to establish in the mind of the jury that there was some truth in Macko’s mistaken statement to police that he had been told by Clayton that she had stabbed the deceased in the neck.
Mr Boyce accepted that the judge had “warned the jury independently about the misuse of each independent evidential source of counsel’s attack”. The judge had warned the jury against misusing counsel’s cross-examination of Macko and his invitation to speculate, and had also warned the jury several times against using material in a co-accused’s record of interview against the applicant. It was submitted nonetheless that the combined power of these events was potentially devastating and that the prejudice sustained could only have been further enhanced when there was thrown in evidence given by a witness, Gower, of his observations of Clayton earlier on the evening of the death of the deceased, saying that she was then in an aggressive state. All this was said to lead to Clayton not having received a fair trial.
In response, Mr Hillman relied on the prima facie rule that persons charged jointly with one offence should be tried together, subject to the question of prejudice. He argued that in exercising his discretion the judge took into account and gave sufficient weight to all the relevant factors. His Honour took into account the circumstance that the Crown would rely on the evidence of Rodwell and of the admissions by the co-accused not admissible against John Hartwick. His Honour had taken the view that the situation was not one where it could be said that the inadmissible evidence against John Hartwick bolstered the credit of the chief Crown witness in any general or blanket way. The Crown submission was that it was wrong to suggest that the evidence of Rodwell had been bolstered by the records of interview of the co-accused, rather their statements had in fact disputed Rodwell’s account in a number of significant areas. His Honour had taken the view that it was possible to explain the case against each of the co-accused with clear definition, separating the evidence admissible against each applicant from that which would be classified as inadmissible against another being a straightforward exercise and capable of being understood by a jury with the necessary directions. Such directions, Mr Hillman submitted, had been repeatedly given by the judge during the trial. Accordingly, he argued, the judge had correctly applied the relevant test at the outset of the trial. Insofar as it was argued that prejudice arose during the course of the trial, the additional matters included evidence regarding an intervention order being taken out by Lisa Hartwick against John Hartwick and evidence of the supposed bad character of John Hartwick. As to these matters it was plain that the judge was not satisfied that counsel for John Hartwick had established the necessary real risk of prejudice to warrant the grant of separate trials. Furthermore, the judge had given appropriate directions at length in his charge as to separate consideration of the case against each applicant. Accordingly it was submitted that this could not be classified as one of those rare cases in which, although the trial had been correctly conducted, the result had been to expose John Hartwick to a conviction influenced by material that was both highly prejudicial and inadmissible, leading to a miscarriage of justice.
There was, we think, nothing in the evidence produced during the trial regarding either the intervention order, or the supposed evidence of bad character of John Hartwick, which was of significance. The tender of the intervention order was itself not objected to by counsel for John Hartwick. Insofar as evidence of bad character was given, it was of little significance in the overall conduct of the trial, covering matters such as going to the premises of Bi-Lo to get cannabis, and evidence by Canham that John Hartwick had previously attacked someone with poles. The actual presence of poles in Hartwick’s car was relevant to issues raised in the trial. The jury were told by the judge, in his charge, to ignore this evidence against Hartwick.
In our opinion, John Hartwick failed to make good either of grounds 1 or 2. The judge correctly rejected the original application for separate trials, and nothing occurred during the course of the trial to justify ordering a separate trial against him.
We turn to the like applications made on Clayton’s behalf during the course of the trial. At the outset, the trial judge stated his view that counsel for Clayton had not reached the necessary point that prejudice might be suffered warranting the granting of separate trials. When the application was reviewed from time to time by Clayton’s counsel, much reliance was placed on the evidence bearing on the conversation with Macko. Prior to charging the jury, the judge set out to counsel the proposed direction he intended giving in regard to the evidence of Macko. In his charge, the judge directed the jury as to separate consideration of the cases against each of the applicants and directed them at considerable length not to use evidence that was admissible against one in their consideration of a case against another where that evidence was not admissible. His Honour made specific reference to the evidence of Macko and directed the jury in strong terms that Macko’s evidence had no evidentiary value in considering the case against any of the applicants.
In our view the judge did not err in refusing the application for a separate trial on behalf of Clayton, whether at the outset, or during the trial itself.
Each of John Hartwick’s grounds 1 and 2, and Clayton’s ground 2, 3 and 15 should be rejected.
Prior inconsistent statements
First applicant – Ground 16
Third applicant – Ground 17
The argument under these grounds, made by Mr Tehan, was that the judge erred in failing to give the jury any direction in relation to prior inconsistent statements. This ground may be dealt with very briefly, since it was not submitted that this ground alone would have been sufficient to overturn the convictions.
Paula Rodwell was cross-examined at great length, by counsel for each applicant, and her evidence was on a number of occasions shown to have been inconsistent with prior statements she had made both in her evidence of the offences themselves, and as to surrounding matters. Furthermore, statements made by Keith Canham were also shown to have been inconsistent with earlier statements made by him.
Mr Tehan accepted that whilst extensive reference was made by all counsel to the prior inconsistent statements of these witnesses, both in cross-examination and addresses, no counsel asked the judge to give any direction as to how the jury might use such prior inconsistent statements, nor was any direction given by his Honour during the charge to the jury. Of course, no exception was taken by counsel to the fact that his Honour had given no such direction. Indeed, in relation to Rodwell, the judge said that he would not refer to her cross-examination on prior statements which were said to be inconsistent, as they had been referred to extensively in counsel’s addresses.
It was submitted that the judge should have directed the jury on how they could or should use prior inconsistent statements in assessing the reliability of the evidence of Rodwell and Canham. It was argued that without proper direction the jury may well have regarded the time spent by counsel on exploring prior statements as a distraction. It was submitted that proper directions could well have had an important bearing on the jury’s assessment of evidence bearing on critical issues including John Hartwick’s demeanour after the deceased rammed his car into the applicants’ cars and John Hartwick’s role in the offences at the house of the deceased. Reliance was placed on Driscoll v. R.[114] and R. v. Schmahl[115].
[114](1977) 137 C.L.R. 517 at 535-537.
[115][1965] V.R. 745 at 747.
As Mr Hillman said in argument, cross-examination of Rodwell about prior statements made by her had been dealt with in particular by counsel for John Hartwick, who spent much time in his address on the subject. Counsel told the jury repeatedly that these prior misstatements went to the credit of the witness and the jury were told how the evidence could be used to attack her credibility. If counsel had thought it necessary for any such direction to have been given by the jury, no doubt it would have been asked for. It is unnecessary to deal further with this ground.
Bad character and propensity
First applicant – Ground 17
Third applicant – Ground 16
Under John Hartwick’s ground 17 Mr Tehan argued that the judge erred in failing to give any direction in relation to evidence of his client’s bad character, being the evidence previously referred to in grounds 3, 4, 5 and 6. It was submitted that the judge should have given a strong warning to the jury that they could not use evidence of his bad character to reason that he was the kind of person who would commit the offences with which he was charged, that they could not use this evidence as a basis for their verdict, nor as proof of the offences charged. Most of the evidence, it was submitted, was tendered simply to show that the applicant was of bad character. Accordingly it was submitted that the judge had to give an appropriate direction such as that given in R. v. Grech[116].
[116][1997] 2 V.R. 609 per Callaway, J.A. at 615.
Mr Boyce for Clayton adopted Mr Tehan’s argument.
It is sufficient to say that Mr Hillman submitted that the evidence of bad character and/or propensity referred to was quite insignificant in the context of the trial as a whole, and that, by the time of the charge, counsel may well have taken the view that it was better not to highlight these matters and that it was desirable that they not resurface in the minds of the jury by their being reminded of them. No serious prior convictions were referred to and the relevant evidence in the context of the whole trial was little importance. No relevant exception was taken.
As we noted when dealing with grounds, 3, 4, 5 and 6, the bulk of the evidence which is the subject of those grounds was led to show the nature of the relationship between the applicants and the deceased and was admissible as part of the history of events showing the nature of the relationship between the applicants and the deceased and by comparison with the evidence of acts with which each applicant was charged, it was of minimal prejudicial effect. As already explained, we do not consider that there is any real risk that the jury made impermissible use of the evidence in reasoning to a conviction. We are strengthened in that conclusion by the fact that the judge specifically directed the jury that they were to exclude bias and sympathy and prejudice from their considerations and to decide each count on the basis only of the evidence which related to that count.[117] In some other cases it may have been necessary for the judge to go further than that, and specifically to direct the jury as to the limited purpose for which the evidence had been admitted [118] and that they were not to reason that because the applicants were the sort of people who had done things of that kind that they were more likely to be the kind of people who would commit the offences with which they were charged.[119] But, in our judgment, this was not such a case.[120] We reject grounds 16 and 17.
[117]R v Glennon (2001) 7 V.R.631 at 679 [120].
[118]cf. BRS v The Queen 1997) 191 C.L.R. 275 at 306.
[119]R v Grech [1997] 2 V.R. 609 at 614; R. v. DCC (2004) 151 A.Crim.R. 403 at 405 [2]-[5], per Callaway, J.A.
[120]R v Georgiev (2001) 119 A.Crim.R. 363; [2001] VSCA 18 at [21]; KRM v The Queen (2001) 206 C.L.R. 221 at 235 [39]-[40], per Mc Hugh, J.
Appeal against conviction allowed in part
For the reasons which we have given, each applicant’s application for leave to appeal against conviction will be allowed and each applicant’s appeal against conviction will be taken to have been instituted and heard instanter and allowed in part. The conviction entered against each applicant on the count of having intentionally causing serious injury to Paula Rodwell (count 2) will be quashed and it will be ordered that a new trial be had. Otherwise, however, each appeal against conviction will be dismissed.
Resentencing
The quashing of the convictions on count 2 necessitates reconsideration of the non-parole period ordered in respect of each applicant and consequently reopens the sentencing discretion generally in respect of each applicant. Celia Clayton’s application for leave to appeal against sentence will therefore be allowed and her appeal against sentence will be treated as having been instituted and heard instanter and allowed. Subject to anything which counsel may say, we propose also to treat each other applicant as applying for leave to appeal against sentence and to allow their applications and to treat their appeals as instituted and heard instanter and allowed. That said, however, we see no reason to disagree with the learned judge’s analysis of sentencing considerations or his Honour’s sentencing synthesis in respect of count 1 and accordingly we have concluded that that each should be re-sentenced on the count of murder (count 1) to 18 years’ imprisonment and should serve not less than 14 years’ imprisonment before being eligible for parole.
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CERTIFICATE
I certify that this and the preceding 92 pages are a true copy of the reasons for judgment of Charles, Chernov and Nettle, JJ.A. of the Court of Appeal of the Supreme Court of Victoria delivered on 18 November 2005.
DATED the day of 2005.
Associate
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