R v Higgins - [2019] SASCFC 79

Supreme Court of South Australia
(Court of Criminal Appeal)
R v HIGGINS
[2019] SASCFC 79
Judgment of The Court of Criminal Appeal
(The Honourable Justice Stanley, The Honourable Justice Parker and The Honourable Auxiliary Justice David)
3 July 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - PROVOCATION - AVAILABILITY OF DEFENCE
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE OR JOINT CRIMINAL ENTERPRISE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
This is an appeal against a conviction for murder.
The appellant was tried for murder along with two other accused (Hunt and Gebhardt). The appellant was convicted of murder by verdict of a jury. Hunt was acquitted of murder and found guilty of manslaughter. Gebhardt was acquitted of all charges.
The prosecution case at trial was that the appellant and a group of men, including the two other accused, attended at Prion Court and Finnian Road seeking payment of drug debts. In the course of this undertaking at Finnian Road, the deceased hit the appellant on the back of the head with a metal pole. The deceased fled and was pursued by the three accused. After the deceased was knocked to the ground by Hunt, the appellant fatally wounded him with a knife.
The appellant advances three grounds of appeal:
1. The Learned Trial Judge erred in admitting the pre-Finnian Road conduct, said to have occurred at Prion Court.
2. The prosecution having opened their case to the jury and conducted their case at trial on the basis that the Appellant Higgins was the “stabber” the Learned Judge erred in allowing the Prosecution to advance an alternative pathway to guilt of murder, namely that Higgins, while not the “stabber”, could be guilty of murder by way of joint/extended joint enterprise with an unknown “stabber”.
3. The Learned Trial Judge erred in refusing to direct the jury regarding the partial defence of provocation in relation to the Appellant, Higgins.
Held, per David AJ (Stanley and Parker JJ agreeing), dismissing the appeal:
1. There was no room to suggest that either limb of provocation was made out (at [18]-[21]).
2. The discreditable conduct evidence was clearly admissible under s 34P(2) (at [23]-[27]).
3. The nature of the case, namely that accessorial liability was a live issue, and the time it was raised, allowing for witnesses to be recalled if necessary, precludes any question of unfairness (at [28]-[31]).
Criminal Law Consolidation Act 1935 (SA) s 275; Evidence Act 1929 (SA) ss 34P, 34R, referred to.
Lindsay v The Queen (2015) 255 CLR 272; R v Franco (2003) 139 A Crim R 228, applied.

R v HIGGINS
[2019] SASCFC 79
Court of Criminal Appeal: Stanley and Parker JJ, David AJ

STANLEY J: For the reasons given by David AJ I would refuse permission to appeal on grounds 1 and 2 and I would dismiss the appeal on ground 3.
PARKER J: I would dismiss the appeal. I agree with the orders proposed by David AJ.
DAVID AJ: This is an appeal against a conviction for murder. The appellant, with two other accused, was charged with murder. I set out the information in full:
INFORMATION
Criminal Low Consolidation Act 1935 s 275(I)
For arraignment on 25 June 2018
Information of the Director of Public Prosecutions
Mikel George Frederick Harold Higgins, Jesse Daniel James Hunt and Korii Gebhardt are charged with the following offence:
Statement of Offence
Murder. (Section 11 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Mikel George Frederick Harold Higgins, Jesse Daniel James Hunt and Korii Gebhardt, on the 30th day of December 2016, at Christie Downs, murdered Benjamin Ronald Gravett.
The appellant was convicted by verdict of a jury of murder. The accused Jesse Daniel James Hunt (Hunt) was found guilty of the crime of manslaughter having been acquitted of the charge of murder and the accused Korii Gebhardt (Gebhardt) was acquitted of all charges.
The appellant now appeals against his conviction for murder. There is no appeal by Hunt.
The trial
The prosecution case at trial was that at about 8:30 pm on 30 December 2016 the appellant, with a group of about five or more other men, attended at a house at Prion Court, Noarlunga Downs, having travelled there in a yellow dual cab ute driven by Hunt. The group of men entered the house without permission. Debbie Jackson owned the house. They told her on entering the house that they wanted payment for a drug debt owed by the cousin of Ms Jackson’s son, Robert Fitzgerald. There was evidence that the appellant was in possession of a machete and other members of the group were armed with weapons including knives and poles.
On the evidence, it was clear that the appellant was in charge of the group and, following a request by Ms Jackson, told the group to wait outside. Ms Jackson told the group of men that she was going to call the police and the appellant told her son Mr Fitzgerald, who was present at the time, to shut his mother up otherwise the group would bash him. Mr Fitzgerald then went outside to the front yard with the appellant, whom he observed was in possession of a pole, but the police arrived and the group then departed in the yellow ute.
That incident was described at trial as the “Prion Court incident” and its admission into evidence is the subject of a ground of appeal.
About half an hour later, around 9:00 pm, the group attended at a block of units at Finian Road, Christies Downs looking for a man by the name of Jack Lincoln. Similar to the Prion Court incident it was clear on the evidence that the purpose of their visit was to enforce a drug debt. The appellant, followed by Hunt and another male, entered unit block 29-34 in which Mr Lincoln lived on the third floor in unit 34. They walked up to the second-floor landing, where there was a group of people including the deceased, Benjamin Gravett (the deceased). These people were playing darts. The appellant said he was looking for Mr Lincoln and at this point a witness, Ms Ashley Birdseye, who was on the second landing, walked downstairs and exited the unit block. As she did so she observed male people guarding each of the entrance doors on either side of the unit block. One of these men said to her on her returning that she could go back into the block and nothing would happen to her. Ms Birdseye gave evidence that she returned to her unit and observed the appellant trying to kick in the door of Mr Lincoln’s unit.
There was further evidence that the appellant, in attempting to kick in Mr Lincoln’s door, awoke Mr Lincoln’s partner Melissa Moir, who came to the door. The appellant forced his way past her and began searching the unit demanding to know where Mr Lincoln was. Ms Moir gave evidence that she eventually made contact with Mr Lincoln by phone and observed outside the open door of the unit a group of five or six men who blocked the stairwell and had weapons in their possession. At this time the deceased, armed with a metal pole, walked up the stairs and hit the appellant over the back of the head. Having done this, the deceased turned and ran back down the stairs. There was undisputed evidence that the appellant then said to others in the group “get the cunt”. The deceased ran outside and was pursued by both the appellant and Hunt.
A witness, Dale Johns, then made observations of certain of the events outside. He was riding a push bike past the unit complex when he heard the sound of angry raised voices coming from Mr Lincoln’s unit block. He saw Gebhardt, who was known to him, standing on the grass area just out the back doorway to the unit block of Mr Lincoln. Mr Johns said that he continued riding until a white vehicle pulled up beside him and he had a conversation with the driver. He remained at that position riding in circles in the car park. He then saw the deceased emerge through the southern doors on the ground floor to unit block 29‑34. He saw the appellant and Hunt emerge after the deceased and Gebhardt come out of the same doorway about a minute later. He further said in evidence that the deceased was backing away from the appellant and Hunt. At this point Hunt ran to his yellow ute and Mr Johns observed him grab and pass out weapons to a number of people who were there. Those with weapons ran back to the southern side of what was unit block 1-6. Mr Johns estimated there were a lot more than five people around the deceased. Mr Johns then observed Hunt strike the deceased to the side of his head, knocking him to the ground. The deceased then stood up and stumbled and was then stabbed by the appellant with a kitchen type blade that was about 15 cm in length. Mr Johns described seeing a number of blows being struck to the side of the deceased’s neck by the appellant. On the prosecution case, these blows included the fatal wound to his neck. Mr Johns then rode off in the direction of Finian Road. He rode his bike east down Finian Road before eventually making his way around to near a position where the deceased managed to stagger. There were a number of other witnesses who saw the melee which resulted in the death of the deceased. A number of them saw the deceased holding his neck and walking away from the melee after it had finished, before collapsing and eventually dying. However, the only witness who saw the blows struck was Mr Johns. Ultimately the appellant and the other males got into the yellow ute which was parked on Finian Road and fled the area.
There was undisputed evidence at the trial from Professor Byard, who performed the post-mortem on the deceased body, that there were 11 identified stab wounds, one of which to the area of the neck would have been fatal.
In cross-examination, it was put to Mr Johns that he did not see the deceased stabbed that night. In argument in this Court, it was put that there was a case to suggest, by looking at various blood stains in certain areas, that Mr Johns could not have seen any stabbing. However, those matters were clearly before the jury and there is no ground of appeal concerning that evidence.
Neither the appellant nor the other two accused gave evidence at trial, nor did they call evidence. The defence therefore argued at trial that the charge could not be proved beyond reasonable doubt.
Appeal
There are three grounds of appeal. I set them out in full:
(1)   The Learned Trial Judge erred in admitting the pre-Finnian Road conduct, said to have occurred at Prion Court
(2)   The prosecution having opened their case to the jury and conducted their case at trial on the basis that the Appellant Higgins was the “stabber”, the Learned Judge erred in allowing the Prosecution to advance an alternative pathway to guilt of murder, namely that Higgins, while not the “stabber”, could be guilty of murder by way of joint/extended joint enterprise with an unknown “stabber”.
(3)   The Learned Trial Judge erred in refusing to direct the jury regarding the partial defence of provocation in relation to the Appellant, Higgins.
A single Judge of this Court granted permission to appeal on ground 3, but refused permission on grounds 1 and 2. Subsequently, grounds 1 and 2 were referred to this Court for permission.
I will deal first with ground 3, the ground on which permission was granted.
Ground 3 - provocation
In brief, the appellant argues in this Court that the trial Judge should have left the defence of provocation to the jury. The acts which were the basis of provocation on the appellant’s argument are the hitting of the appellant by the deceased with a pole prior to the deceased being chased and eventually stabbed. It is noteworthy to point out the manner in which the question of provocation was presented at trial. Part way through the trial Judge’s summing up to the jury, defence counsel made a submission that provocation should be left to the jury. There had been no mention of provocation throughout the trial and there had been no suggestion or argument that it should be available. Furthermore, defence counsel indicated that he did not wish to reopen his address and discuss provocation with the jury. He wanted the Judge to give directions on provocation without the assistance of counsel submissions. The question was first raised on a Friday afternoon. Understandably, the Judge wanted to consider the matter and on the following Monday indicated that he would leave provocation. However, after hearing further submissions his Honour came to a different view and provocation was not left. In discussion with counsel on the Monday morning, his Honour indicated there was insufficient evidence to raise the operation of the objective limb of provocation at the time of the stabbing.
The appellant now argues that the lateness of the application to leave provocation should not be a bar to it being left. There appears to have been no argument at trial to that proposition. The question now is whether there was an error in not leaving it.
Counsel for the appellant argues that on the prosecution case the appellant, having been hit with a pole, chased the deceased out of the units and stabbed him 11 times, twice in the neck, showing at the very least an arguable case for there to have been loss of control such as to raise the question of provocation. He emphasised the well-known dicta in Lindsay v The Queen:[1]
There are two conditions for the operation of the doctrine: first, the provocation must be such that it is capable of causing an ordinary person to lose self-control and act in the way the accused did (the objective limb); and second, the provocation must actually cause the accused to lose self-control and the killing must take place while the accused is deprived of his or her self-control (the subjective limb). The focus of the objective limb is upon the capacity of the provocation to cause an ordinary person to lose self-control and form the intention to kill or to do grievous bodily harm. Where the evidence raises the issue, the prosecution must prove that the killing was not done under provocation. The prosecution may do so by negativing beyond reasonable doubt either of the limbs of the doctrine.
(Footnotes omitted)
[1] (2015) 255 CLR 272 at 278-279 [15] (French CJ, Kiefel, Bell and Keane JJ).
In my view, the argument has no merit. On any version, indeed on the most favourable version to the appellant, there is no room for the factual scenario that the attack causing the death of the deceased was due to a lack of control such as would raise provocation. It is clear on the evidence that the appellant, who had come to the units with others for the purposes of doing violence if necessary, behaved in the way he did out of calculated vengeance. Having been hit by the deceased he ordered the others to “get the cunt”. He pursued the deceased with Hunt. Furthermore, Hunt calculatingly ran to his vehicle and passed out weapons to other people before the attack on the deceased. It was Hunt who then struck the deceased to the side of the head, knocking him to the ground, and it was only after that that he was stabbed by the appellant. One of those stabs caused his death. This indicates clear calculation and not a loss of control. In my view, there was no room to suggest that either limb of provocation was made out.
I would dismiss that ground of appeal.
Ground 1 – discreditable conduct evidence
The appellant argues, as his counsel did at trial, that the Prion Court incident should not have been led in evidence. The trial Judge ruled prior to trial, based on the declarations presented, that that evidence was admissible and, applying the requirements of s 34P of the Evidence Act 1929 (SA) (the Act), it should not be excluded. The appellant now argues that the evidence of Prion Court is plainly discreditable conduct and should not have been admitted. He further argues that s 34P(2), namely:
(2) Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a) the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
on the facts of the present case, does not make evidence of the discreditable conduct at Prion Court admissible.
The respondent relies upon s 34P(2)(a) to justify admission, in that there is probative value in the evidence of Prion Court independent of any question of propensity, and that probative value clearly outweighs any prejudicial effect it may have on the appellant.
In my view, the evidence was clearly admissible. I point out the following matters which were clearly explained by the Judge to the jury in accordance with s 34R(1) of the Act:
1The evidence puts both the appellant and Hunt in each other’s company at Prion Court shortly prior to the incident at Finian Road;
2The evidence establishes that they were travelling in Hunt’s ute along with three other men;
3It is relevant to show that the group of men, when arriving at Prion Court, were armed with weapons;
4That at Prion Court, they were not only armed with weapons, but were expecting some form of resistance; and
5Both at Prion Court and at Finian Road the appellant seemed to be in charge.
All of these matters are clearly relevant to the incident that took place at Finian Road. The trial Judge directed the jury carefully as to the proper use of the Prion Court evidence and also to the use that must not be made of it.
The admission of that evidence was clearly correct and I would refuse permission to appeal on that ground.
Ground 2 – joint criminal enterprise
The case as presented by the prosecution in its opening, and indeed as indicated at a pre-trial conference, was that the appellant was the person who killed the deceased by stabbing him, and that the other two accused were guilty by way of accessorial liability, namely joint enterprise and extended joint enterprise. Near the end of the prosecution case, during discussion by counsel with the Judge about matters of law, the prosecutor indicated for the first time that there was an alternate route to conviction for the appellant other than as the principal offender. When addressing the trial Judge, the prosecutor said the following:
MR PEARCE:       I can.
Could I just go back to the case of Mr Higgins? If the jury had a reasonable doubt that he was principal then, of course, there is still that liability open under joint enterprise or aid abet if they were not satisfied precisely what role he played.
HIS HONOUR:      Tell me about that again.
MR PEARCE:       If the jury have a reasonable doubt that he is the principal but he is part of a wider group that carried out this crime pursuant to a joint enterprise etc., then that pathway is still open in the case against Mr Higgins.
During the course of his summing up, the trial Judge directed the jury in relation to the alternate route to conviction for the appellant, namely that of accessorial liability. There is no argument about the adequacy of those directions, but the appellant now argues that it was unfair at such a late stage for the Crown to base a conviction on an alternative liability when they had indicated consistently that the basis of the Crown case was that the appellant was the stabber.

This question was dealt with in the decision of this Court in R v Franco, where Duggan J (with whom Debelle and Lander JJ agreed) said:[2]
[19]It is a fundamental principle of fairness in all criminal proceedings that an accused person be given adequate particulars of the charge brought by the prosecution. In the absence of pleadings of the type required in civil proceedings, particulars beyond the short statement of particulars in the information may be supplied by the prosecution in response to a defence request or by direction of the court. However, the normal course in a jury trial is for the prosecution to provide the necessary particulars by means of its opening address together with the information contained in declarations of witnesses supplied to the defence.
[20]Although it is desirable that the prosecution should indicate at the commencement of the trial the basis upon which it seeks a conviction, there will be cases in which the course of the evidence gives rise to the possibility of a further basis for conviction on the offence charged or the basis for a conviction on an alternative offence which is available at law. An important consideration for the trial judge in deciding whether to leave to the jury a path to conviction not previously mentioned is whether the accused has had an adequate opportunity to test evidence relevant to such reasoning, to call evidence relevant to it, and to address the jury on it.
[21]A trial judge is not bound by the prosecutor’s formulation of its case. It may be necessary for the judge to consider whether it is appropriate to leave alternative verdicts to the jury or direct on alternative paths to conviction irrespective of whether such alternatives are relied upon by the prosecution. However, it is essential when considering such a course to have regard to whether unfairness would result if, through no fault of the defence, the alternative basis had not been properly addressed during the trial.
[22]The function of the trial judge and the approach to be adopted by an appellate court in these circumstances were summarised by Street CJ in R v Solomon [1980] 1 NSWLR 321 at 327; (1979) 1 A Crim R 247 at 249:
“Ordinarily, it is the province of the Crown to formulate and present the case for the prosecution which will, in due course, be summed up by the judge to the jury. There may, however, be other matters of fact or law which the trial judge, in the discharge of his duty to ensure a fair trial according to law, considers it necessary to put to the jury, even though not propounded or developed by the Crown. The fairness or unfairness of travelling beyond the ground covered by the Crown will, of course, be evaluated by the trial judge and will be to the forefront in his deciding how far, if at all, to put new considerations to the jury. It seems to me that, where a judge does cover fresh ground in terms that are correct in law and properly based on evidence in the case, at the highest his decision so to do will only be challengeable if it can be seen that the accused person was thereby placed at a tactical disadvantage. In such a situation, appellate intervention would be appropriate, not by reason of the judge having canvassed fresh ground simpliciter, but by reason of unfairness attending his so doing. The relevant unfairness will ordinarily be looked for in procedural considerations. The judge, drawing upon his own forensic experience, will be readily appreciative of the tactical considerations which will have governed counsel in the conduct of the case for the accused. Objections to evidence, lines of cross-examination and decisions upon the material to be advanced on behalf of the accused, not to mention the general trend of the final address to the jury made on behalf of the accused, will all, of course, have been governed by the nature of the Crown case as opened by the prosecutor and developed through evidence tendered on behalf of the Crown at the trial. It is readily understandable that, within these procedural and tactical fields, there could arise an element of real prejudice, if the judge, in his summing-up, raises new approaches available to, but not expressly relied upon, by the Crown. But in every case in which a question arises regarding the development of new approaches, the question concerning the judge at first instance, and on appeal the question concerning this Court, will be to determine whether in so doing there will be worked an unfairness to the accused.”
See also Moffitt P (at 334; 254-255).
(Emphasis in original)
[2] (2003) 139 A Crim R 228 at 233-234 [19]-[22] (Duggan J).
The question is therefore one of fairness. It must be noted that there was no application by defence counsel to recall witnesses to alleviate any prejudice that may have occurred. It is also difficult to see how the nature of the defence would have changed. There was a clear case of accessorial liability against two of the accused, which was analysed and discussed both during the trial and the Judge’s summing up. The case against the appellant was always that he was the stabber. The alternative scenario, that the evidence of Mr Johns was wrong and that some unknown person stabbed the deceased with the accused being an accessory to that act, in my view, was still available without any prejudice to the conduct of the defence. If the assertion of the defence was that he could not have been a party to this act by the unknown stabber, then various witnesses would have been cross-examined as to his non-attendance or his non-involvement in the matter. This was not done. However, those assertions would equally be applicable as a defence to the charge that he was the stabber. It is difficult to see how the conduct of the case would have been any different. In my view, the nature of the case, namely that accessorial liability was a live issue, and the time it was raised, allowing for witnesses to be recalled if necessary, precludes any question of unfairness.
I would refuse permission to appeal on this ground.
Conclusion
I would refuse permission to appeal on grounds 1 and 2. I would dismiss the appeal on ground 3.