R v Le Broc

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No.58 of 1999

THE QUEEN

v

STANLEY RICHARD LE BROC

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JUDGES:	PHILLIPS, C.J., BATT, J.A. and CUMMINS, A.J.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	14 and 15 February, 2000
DATE OF JUDGMENT:	28 July, 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 125

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CRIMINAL LAW – Causing serious injury recklessly – Aiding and abetting – Mental element – Lies – Sufficiency of direction – Intoxication – Whether direction required – No relevant exceptions.

CRIMINAL LAW – Sentencing – Parity – Co-offender’s pre-sentence detention over-calculated.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr. M.J. Croucher	Tyler, Tipping and Woods
For the Crown	Mr. C.G. Hillman	P.C. Wood, Solicitor for Public Prosecutions

PHILLIPS,C.J.

BATT, J.A.
CUMMINS, A.J.A.:

The applicant, Stanley Richard Le Broc, was convicted in the County Court at Morwell of recklessly causing serious injury to Michael Patrick Bowman. The applicant and a co-accused, Shaun Patrick Egan, each had been charged with intentionally causing serious injury at Morwell on 29 August 1996 to Mr. Bowman (Count 1) and with recklessly causing serious injury at the same place and date to him (Count 2, alternative to Count 1). When presented, Egan pleaded guilty to Count 2, the prosecution then not proceeding with Count 1 in relation to him. He admitted 103 prior convictions from 17 court appearances between 1986 and 1996. He was sentenced on 9 March 1999 to two years’ imprisonment of which 10 months’ imprisonment was suspended for two years. It was thought that he had already served 436 days’ pre-sentence detention, as to which the learned judge made a declaration pursuant to s. 18(4) of the Sentencing Act 1991. Thereupon Egan was released from custody to serve the suspended period. The jury trial of the applicant proceeded on both counts. Egan was called as a witness for the prosecution. Cross-examination of him by counsel for the applicant elicited before the jury that he had been charged with, pleaded guilty to, and had been sentenced for recklessly causing serious injury. The jury acquitted the applicant on Count 1, intentionally causing serious injury, and convicted him on Count 2, recklessly causing serious injury. He admitted 71 prior convictions from 28 court appearances between 1959 and 1993. After hearing a plea, the learned judge on 22 March 1999 sentenced the applicant to 30 months’ imprisonment, he to serve 20 months’ imprisonment before eligibility for parole. A declaration as to six days’ pre-sentence detention was made by her Honour. The same learned judge heard the matters of both Egan and the applicant. The applicant has applied, on a number of grounds substituted by way of amendment, for leave to appeal against his conviction on the count of recklessly causing serious injury, and also for leave to appeal against sentence.

Overview

Twelve witnesses were called for the prosecution. The applicant stood mute and no witnesses were called for the defence. The trial occupied 10 sitting days between 4 March 1999 and 18 March 1999. On 18 March 1999 the jury retired to consider its verdicts at 10.10 a.m. and returned its verdicts at 12.43 p.m.

The victim, Michael Bowman, resided at premises at 43 Hourigan Road, Morwell. At the time of the infliction of serious injury upon him (29 August 1996) he was 26 years of age, having been born on 17 March 1970. The applicant had been staying at the victim’s premises for several weeks prior to the incident. They had lived relatively harmoniously together and were on friendly terms. Each was accustomed to drinking substantial amounts of alcohol. At the time of the incident the applicant was 54 years of age, having been born on 19 December 1941.

Mr. Bowman had been seriously injured in a car accident in 1984. He had suffered head injuries which required surgery and hospitalisation for several weeks. An unfortunate consequence of those 1984 injuries was that Mr. Bowman was afflicted, and evidently so, with difficulty of speech and movement. This affliction was known to the applicant.

The co-accused Egan was significantly younger than the applicant, being at the relevant time 28 years of age. Egan, who was a friend of Richard Le Broc, the applicant’s son, had stayed at the Hourigan Road premises overnight on the night prior to the incident. The affliction suffered by Mr. Bowman was known also to Egan. Egan stayed at the premises overnight on Wednesday 28 August with his girlfriend Nicole Stivic.

The prosecution case was that on Thursday 29 August 1996 the three men, being the applicant, Mr. Bowman and Egan, were at the premises and drank a large amount of alcohol, commencing early in the morning. During the afternoon a disagreement occurred between the applicant and Mr. Bowman, the applicant accusing Bowman of stealing his tobacco and lighter. The applicant punched Bowman while he was on the couch in the loungeroom. Egan also became angry with Bowman, as not only had Bowman called him a maggot and a dog, but also Egan believed that the previous evening Bowman had surreptitiously observed Egan and Ms Stivic having sexual intercourse at the premises. Egan seriously assaulted Mr. Bowman, first by punching and then by kicking him and jumping on him. Then the applicant, Egan and Ms Stivic left, purchased alcohol, and returned. The applicant and Egan put Mr. Bowman, who was obviously injured and bleeding heavily, fully clothed in a bath. Later the applicant rang the ambulance. Ambulance officers attended and found Mr. Bowman unconscious and still in the bath. He was removed to the Traralgon Hospital and then to the Alfred Hospital. He was found to have a massive left-sided subdural haematoma, requiring urgent surgical intervention. Police attended the Hourigan Road premises. The applicant and Egan were taken to the Morwell CIB offices. Each was interviewed. The applicant denied any knowledge of how Mr. Bowman was injured. The applicant was not charged. On 6 September 1996 he attended voluntarily at the Morwell CIB offices and in interview gave an account stating that he had initially assaulted Mr. Bowman by punching him to the face a couple of times, which had not caused serious injury to Mr. Bowman: it was Egan who had inflicted the serious injuries to Mr. Bowman. The applicant said that Egan severely punched Mr. Bowman, kicked him, and jumped on his head when he was on the floor. On 13 December 1996 the applicant was charged. Egan also was charged at a later date.

It was the prosecution case at trial that the applicant had seriously injured Mr. Bowman, or had acted in concert with or aided and abetted Egan in his (Egan’s) serious injuring of Mr. Bowman. The applicant’s defence at trial, through his counsel, was that, although he had initially punched Mr. Bowman to the face, the applicant had not caused any serious injury to Mr. Bowman: the serious injuries were caused by Egan alone, and as to them the applicant neither acted in concert nor aided and abetted Egan.

The Evidence

The witnesses called by the prosecution gave evidence as follows.[1]
[1]In the following summary we have, on the whole, incorporated evidence in cross-examination into evidence-in-chief, rather than stating it separately.

Michael Bowman stated that in August 1996 he was “punched out” in his home, and suffered a head injury which required surgery and left him in hospital for several weeks. As a result of that incident he had at trial difficulties with his memory and his speech. He had received an earlier head injury in a car accident in 1984, which made walking difficult and resulted in a later-remedied speech impediment. He could not recall the August 1996 incident. He had been drinking on the day. The applicant was a friend of his, with whom he planned to travel around Australia. The applicant had been living at Mr. Bowman’s home for several months prior to the incident. The applicant was present on that day, as were others that he did not know. He did not recognise the name of the co-offender, and was not aware of his having stayed over the previous night. Prior to this event there had been no violence between the applicant and Mr. Bowman.

Nicole Stivic stated that on Wednesday 28 August 1996, she and her then boyfriend Egan spent the night at 43 Hourigan Road, Morwell. She had not previously met the applicant or Mr. Bowman. Egan was a friend of the applicant’s son Ricky Le Broc, and the applicant had offered them a place to stay the night when another arrangement fell through. The applicant spent that night at his wife’s home, but rejoined the group at Hourigan Road the following morning. Throughout the day on 29 August 1996, the applicant, Ms Stivic, Egan and Mr. Bowman were all drinking alcohol. She herself just had a glass of wine in the morning. She also had a can of a mixed drink in the afternoon. At one point in the afternoon one of the others took Mr. Bowman out to purchase more alcohol, and they brought back two casks of wine. By that time, although functional, Mr. Bowman was affected by alcohol.

Ms Stivic stated that at the time of the initial assault upon Mr. Bowman, she and the applicant’s son Ricky were present in the lounge room with the applicant, Mr. Bowman and Egan. Ms Stivic could not say when Ricky left, only that it was after the assault had begun. The applicant had been standing near the window, when he just walked over to Mr. Bowman, who was sitting on the couch, and belted him in the head a few times. There had been an argument about tobacco. Egan then joined in, and began to punch Mr. Bowman where he was on the couch. Egan was upset with him because he had spied on Egan and Stivic the previous night, and because he called Egan a cunt, a dog, and a maggot. The punching continued for 10 to 15 minutes. The applicant punched Mr. Bowman with his fist five to 10 times before Egan joined him. The applicant stopped after a while, and then Egan started getting into Mr. Bowman. The applicant later renewed his attack. In the course of the assault the applicant and Egan would not let Mr. Bowman get away. They picked Mr. Bowman up and put him on the floor. There they just kept rapidly punching into him with a few kicks. The applicant punched Mr. Bowman, and Egan kicked him. At one point the applicant left the room, and then Stivic saw Egan kick Mr. Bowman many times, hard, to the crown of his head, and “stomp” three times on his head. It was while he was being kicked that the gash in Mr. Bowman’s head appeared. The applicant did not assist Egan while he was kicking Mr. Bowman. After that Mr. Bowman was not moving. After a while they stopped, and then stood around for a while, before picking him up, and putting him in the corner of the lounge room with a rug placed over him. He could not talk and there was blood pouring out of his head. Then the applicant, Egan and Stivic left the house. At that time Egan returned inside the house and was alone in there for four minutes. The group visited the home of Elsie Le Broc, the wife of the applicant, and then licensed premises before returning to Hourigan Road. There they found the applicant still lying on the floor, but in a different location within the lounge room. There was blood in the lounge room and vomit all over the floor. The two men picked him up and tried to stand him in the shower. He was too intoxicated to stand, so the applicant and Egan started belting into him again in the bathroom. Egan hit Mr. Bowman to the left side of his head with his left hand. The applicant was holding his legs, but then moved over and punched him three or four times. They then lifted him into the bath and ran hot water over him. The applicant then came out with a knife and said that he wanted to kill him. He then gave the knife to Egan. After that Egan instructed Stivic to clean up the blood in the hallway between the front door and the passageway, and she left the two men in the bathroom with Mr. Bowman. Egan later rejoined her in the lounge room, while the applicant disappeared. He came back after 15 minutes and told Ms Stivic that he had rung an ambulance. The ambulance arrived five minutes later. At some point Ms Stivic noted what she thought was blood staining on Egan’s desert boots and jeans. In cross-examination Ms Stivic stated that she was still in a relationship with Egan when she made her statements, though not when she gave evidence at committal. Her second statement to police changed her account of the facts by adding to it. Just before she left the house Egan said he would kill her if she dobbed him in to the police. She took this as a serious threat, having seen Egan hurt people before. She also considered that Egan could get to her through his friends even when he was in custody. She had not told the full truth about Egan’s role because of her fear of him.

Egan stated that on 29 August 1996 an argument between the applicant and Mr. Bowman arose over tobacco. The applicant threw the first punches, and then Mr. Bowman punched back. Mr. Bowman was standing up when the fight began. The applicant punched him in the head. They were all pretty “out of it” on alcohol. He was also “pissed” and he became upset when Mr. Bowman started having a go at him, calling him “a maggot and a dog”. He hit Mr. Bowman and then he kicked him. The applicant was in the room for the duration of the fight. Egan could not recall other details of the fight, including whether or not he lost control. He did not kick Mr. Bowman in the head when he was on the ground. When the fight was over, they took Mr. Bowman into the bathroom to clean him up. He could not actually recall this incident. There was no further violence then. Egan was then aware of visiting a location outside the house, the arrival of Ricky Le Broc, and the applicant’s packing up of his possessions. He had not been aware that the applicant had called the ambulance, and he was unconscious on a couch when the ambulance officers arrived.

In cross-examination Egan stated that he was interviewed by police over a period of 12 hours. He could not remember his behaviour in that interview as he was influenced by alcohol. His memory failed from the period after the fight, as he and the applicant continued to drink and also smoked marijuana. They were all drunk at the time of the fight, but not to the level they later achieved. He denied Ms Stivic’s account of the violence in their relationship, and of the threats he had made to her.

Richard (Ricky) Le Broc, the 35 year old son of the applicant, stated that he and Egan had been friends for six to eight years, but that Egan was not known to the applicant. Mr. Le Broc went to Mr. Bowman’s house fairly early in the morning on the day of the incident, and found Egan, Ms Stivic, Mr. Bowman, the applicant and an aboriginal man he did not know, all drinking alcohol. While he was there Ms Stivic just drank a cup of tea, and appeared sober. He did not drink. Egan and the applicant were half drunk. At around 10.30 to 11 a.m., the fight started. The others were all drunk. Mr. Bowman was carrying on about Egan’s girlfriend and something about tobacco and a lighter. The fight began with the applicant striking Mr. Bowman to the face. Bowman then struck him back, and the applicant hit him a couple of more times to the face, and gave him a blood nose. The applicant struck Mr. Bowman only three times. Mr. Bowman was on the couch during the applicant’s assault. Mr. Bowman then called those present “dogs and stuff like that”, and this drove Egan wild. He commenced punching Mr. Bowman and kicking him to the face. Egan “ripped him off the couch and started kicking him around the floor”. After the kicking started Mr. Le Broc turned away as he did not want to have anything to do with it. He did see Mr. Bowman kicked in the face a couple of times, and did see Egan stomp on his head. This was the first time that Mr. Le Broc had seen Egan behave violently. He saw Mr. Bowman’s head get cut when Egan kicked him and his head hit the corner of a brick on the fireplace.

Mr. Le Broc said that, when Egan first began his assault upon Mr. Bowman, the applicant had walked out to the kitchen or the toilet. He remained out of the room for four to five minutes. The assault by Egan continued and he was still kicking Mr. Bowman when the applicant returned. The applicant did not assault Mr. Bowman further. Shortly afterwards Mr. Le Broc helped the applicant pack some possessions, and they left the house to go to the Le Broc family home. When they left Egan and Ms Stivic remained behind with Mr. Bowman. Egan was not attacking the complainant at that point.

John Kenny, aged 16 in March 1999, went to visit Mr. Bowman after school on the afternoon of 29 August 1999. He entered the house and found the applicant, Egan and Ms Stivic in the lounge room. He asked where was Mr. Bowman and the applicant said, “He’s in the bath.” Mr. Kenny walked into the bathroom and found the applicant, fully clothed, in a bath full of water. He was not awake.

Anthony Davis, an ambulance officer, stated that he and Mr. Ross Breaden at 5.00 p.m. on 29 August 1996 responded to a call to attend a residence in Hourigan Road, Morwell, where there was a patient unconscious in a bath. They were directed inside the house by a balding man in his forties. They followed that man into the bathroom, where they saw a man in the bath, his head tucked down to his chest, snoring, and with blood around the bathroom. The snoring indicated a blocked airway. The man had a slow heartbeat, which indicated either hypothermia or a head injury. The man was breathing but deeply unconscious. There was a cut to his crown which was not bleeding, and he had black eyes, very swollen lips, and bruising to the face. The water was cold and there were no burn or scald marks. The man who had showed them in stated that he had last seen the man at 4.00 p.m., in the bath. The ambulance officers had the police called. Mr. Bowman was intubated and taken to Traralgon Hospital. Mr. Breaden gave similar evidence.

Dr. Gordon Arthur of the La Trobe Regional Hospital at Traralgon stated that Mr. Bowman was received at that hospital at 5.53 p.m. He appeared to be near death. A CT scan showed a blood clot on the left side of the brain which had shifted the midline structures of the brain to the opposite side. A burr hole was made over the point where the blood clot was evident on the CT scan, in the left temporo-pareital region, which allowed a lot of blood to be drained, and apparently relieved the pressure. Dr. Arthur had no record of there being a fracture to the skull, though there was obvious bruising on the scalp which had directed attention to the trouble area. The patient was then dispatched by helicopter to the Alfred Hospital. Dr. Arthur stated that the skull injury was of a type that would be unlikely to be caused by a mere fist, but rather suggested a blunt object, such as an iron bar, a piece of wood, or a boot. Impact by the skull in motion against a solid stationary object, such as the floor or a fireplace, could equally have caused the injury.

Dr. Fraser Barry of the Alfred Hospital, Melbourne stated that upon his arrival at the Alfred Hospital Mr. Bowman was examined by him. The patient’s condition had deteriorated en route, and he was rushed into theatre in an unconscious state. Examination of the Traralgon CT scan indicated that Mr. Bowman had suffered a massive left subdural haematoma which had caused a shift in the alignment of the brain. Medical staff at Traralgon Hospital had performed a minor craniotomy, and Dr. Barry now extended that incision to the subdural layer to evacuate the clot. Intensive care staff independently operated upon Mr. Bowman’s chest to drain air or blood from the cavity, caused by a separate injury. The chest injury could have been caused by kicking, being struck by a hard object, falling or any direct blow. The most likely cause of both the subdural and extradural bleeding was a direct blow on the same side of the skull, though a contracoup blow was a possible cause. The head injury was unlikely to have been caused by punches to the nose and mouth.

Mr. Maxwell Jones, a forensic biologist attached to the Victoria Forensic Science Centre, stated that he examined a number of items of the applicant, including a denim jacket, a pair of shoes, and a pair of jeans. Examining the jacket Jones found (presumptive) blood staining on the left sleeve 15 cm above the cuff and on the lower left panel near the rear waist band. There was also confirmed blood staining on the right side of the right shoe, and presumed blood-staining on the jeans, above the knee on the left front leg, and near the right pocket. All of the staining found on these items was smeared rather than spattered, indicating a transfer by contact. Other items examined, including a T-shirt and a plain white singlet, did not present any apparent blood staining. Items taken from Egan were also examined. Stains confirmed to be blood were found spattered on the upper left leg of Egan’s trousers, in droplets suggestive of the application of substantial force. Similar stains were found on Egan’s right rear cuff. The type and distribution of stains was not inconsistent with having been caused by Egan stomping on Mr. Bowman’s head with his left foot. Spatter stains were also found on the heel of one of his boots, but not on the upper. Blood staining was found on other clothing items belonging to Egan, but all was of a contact smear type. No blood was found on the underside of his boots, which, absent some intervention (such as walking in water), would have been expected had Egan stomped on Mr. Bowman’s head. (In interview Egan had stated that he had got his foot wet when putting Mr. Bowman in the bath.)

Acting Sergeant Jean of Morwell Police arrived at the scene at 5.07 p.m. Ambulance officers were working on a person on the lino. There were two men sitting at a coffee table littered with empty cans of alcohol, and there appeared to be bloodstains on the carpet. One of the males identified himself as Stanley Richard Le Broc, and gave his personal details. The other said he was Michael Alfred Vella and gave an address in Leongatha. These details were fictitious, and “Vella” was in fact Egan. The two men smelled strongly of alcohol and their speech was slurred. They were both strongly affected by alcohol and they were equally unco-operative and belligerent in answering police questions. The applicant stated that he had arrived back at four o’clock and found Mr. Bowman unconscious, in the bath, and that he had then walked up the road to telephone the ambulance. He had then returned to the house and continued to drink with “Vella”.

Detective Senior Constable Askew of the Morwell CIB attended the home at 5.59 p.m. on the day of the incident. We pause to recite his description of the scene:

“The first thing, I suppose, was the overall state of the house. It could perhaps be described as shocking, really; there was vomit and blood all over the lounge room, which appeared to be in complete disarray. There was a doona that had been, in general terms, thrown over blood stains and vomit stains near the fireplace; there were large vomit stains underneath the sofa; there was blood stains on the sofa; there were blood stains all up the walls.”

The witness gave evidence of the applicant’s interviews by police and ultimate charging, all of which have been mentioned earlier.
Application For Leave To Appeal Against Conviction
The verdict

Because of its possible consequences we take first ground 8 of the amended grounds of the application for leave to appeal against conviction. It is that the verdict is “unsafe or unsatisfactory”[2]. That ground requires this Court to exercise its own judgment as to the evidence to determine whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty: M v. The Queen[3] It is apparent from the above recital of evidence that the case against the applicant, at the very least on the basis of aiding and abetting Egan (which was the basis upon which the learned judge sentenced the applicant), was a strong one. Giving full allowance to the tainted character of Egan’s evidence (upon whose evidence we place little reliance), there was an amplitude of direct evidence, particularly that of Ms Stivic, implicating the applicant in the offence. His lies and admissions of at least an initial assault provided further support. The assessment of credibility and accuracy was in this case well within the province of the jury, who had the advantage of observing the witnesses. The applicant’s actions, presence, knowledge, and especially continuing provision of support to Egan, shown by the evidence mentioned, justify the conviction. Indeed the jury’s acquittal of the applicant on Count 1 may be regarded as merciful, perhaps influenced by the circumstance, known to the jury, that Egan had been convicted and sentenced for recklessly causing serious injury. Ground 8 fails.
[2]This phrase is confusing(Fleming v. The Queen (1998) 197 C.L.R, 250 at 255-256), but here refers to the first condition in s.568(1) of the Crimes Act 1958 and, when taken with ground 7, perhaps also to the third condition.
[3](1994) 181 CLR 487; see also Chidiac v R (1991) 171 C.L.R. 432 and Jones v R (1997) 191 C.L.R. 439.

Ground 7 of the substituted grounds of application for leave to appeal is that the learned trial judge failed sufficiently to relate the law to “the alternative hypotheses open on the evidence” and failed to direct the jury that “they must not convict unless they have excluded all reasonable hypotheses consistent with innocence”. There is nothing in this ground. The learned judge’s charge related the law to the evidence. She properly directed the jury on the burden of proof and as to the drawing of inferences. It was not her function to chase down every shadow put up by defence counsel, of which there were many. The applicant’s counsel before us conceded that ground 7 is a particular of ground 8. It fails.

Intoxication

Ground 1 of the amended grounds of application for leave to appeal is that “the learned trial judge erred in failing to direct the jury on the use of evidence of intoxication”. Indeed her Honour gave the jury no direction on the matter of the use of evidence of intoxication, nor was such direction sought (or even referred to) by the applicant’s then counsel (who is not the applicant’s counsel who appeared before this Court) or by the prosecutor. There was, as has been recited, considerable evidence as to ingestion of alcohol and some general evidence as to its effect on various persons including the applicant. The milieu of the group at the premises was one of alcoholic ingestion. It cannot be thought that counsel (or the learned judge) was unaware of that evidence. Plainly what occurred, as often occurs, was that a decision at trial was taken by the applicant’s then counsel not to seek a direction on intoxication. Such a decision was understandable, both because of the vague nature of the evidence of the applicant’s intoxication and because of the forensic danger to the applicant of pursuit of the matter of intoxication. We shall refer to each of these considerations in turn.

There was ample contextual evidence of ingestion but little specific evidence of the applicant’s intoxication at the relevant time – preceding and at the time the victim was injured. The applicant himself, in his interviews by investigating police, variously described himself as (first interview, 29 August 1996) “pretty pissed” (A.474), “pretty drunk” (A.520) and (second interview, 6 September 1996) as having had “a fair bit to drink” (A.115). In evidence Ms Stivic said that she was “the only sober person in the room” and that the applicant was “a bit drunk, he wasn’t intoxicated or anything like that”. Egan said that they all were extremely intoxicated, “all drunk” and “all pretty out of it on alcohol”. The applicant’s son, Richard Le Broc, said “they were all drunk”. In his second interview, the applicant told investigating officers that his memory of the events was “about 90 percent” clear and that he had “had a fair bit to consume… but I was still pretty wary of what went on”. After the events, Acting Sergeant Jean attended the premises on 29 August 1996 at 5.07 p.m. After making various observations and enquiries, he spoke to the applicant and Egan, who were seated at a coffee table. Acting Sergeant Jean stated that they both smelt strongly of alcohol, their speech was slurred and they “quite obviously to me were affected by alcohol”. The applicant coherently and responsively (although unco-operatively) answered questions asked of him by Acting Sergeant Jean as to what he said had happened at the premises earlier that afternoon. The applicant said that after he had contacted the ambulance (which in fact was at 4.55 p.m.) he had “continued to drink”. The alcohol which had been consumed was mostly full strength beer and cask wine from what was habitually termed by the applicant a “gooney box”.

There was no precise or calculated measurement of the applicant’s ingestion of alcohol at the relevant time. The lay descriptions of the applicant’s state of intoxication (including by himself to police, he standing mute at trial) are characterised by vagueness and imprecision. Further, they are expressions of opinion of very uncertain accuracy and uncertain reliability. Acting Sergeant Jean’s evidence was of limited utility as to the applicant’s state at the relevant earlier time as the applicant had continued to drink. No doubt for that reason counsel for the applicant did not place reliance on that evidence.

In the learned trial judge’s charge, directions were given to the jury concerning the mental element of the offences (Counts 1 and 2). These were careful directions and no complaint is made as to them except as to the mental element for aiding and abetting the alternative offence. She gave the jury no direction on intoxication. Neither before nor after the charge was any such direction sought by the then counsel for the applicant. It cannot be that the question of intoxication was overlooked, by counsel or judge, given the context of the case. Rather it is apparent that counsel concluded that it was inappropriate to join issue on that question in the circumstances. Perhaps that was because of the vagueness and uncertainty of the evidence. Perhaps it was for forensic reasons, for every experienced counsel knows the danger of joining issue on intoxication: it can provide a ready explanation for aggressive or callous conduct founding the crime charged. Perhaps both reasons applied. However that may be, the applicant, now with different counsel, comes before us and complains that the trial judge erred in failing to direct the jury on the use of evidence of intoxication. This Janus-like course is wholly undesirable. We do not, of course, criticise counsel who appeared before us for the applicant, and whose submissions were most helpful and thorough. But we again deplore the sequential joinder of issues which, if they are to be joined, should be joined at trial. An egregious aspect of this matter, as with a number of applications coming before us, is the late raising of the ground of appeal. The applicant was convicted on 18 March 1999 and sentenced on 22 March 1999. Notice of application for leave to appeal against conviction was filed on 1 April 1999. In that notice there was no reference to the now complained of lack of direction as to intoxication. Then, by leave of the Registrar, on 2 February 2000 amended grounds of application for leave to appeal against conviction were filed, for the first time complaining of failure to direct on intoxication. That complaint was raised less than two weeks before the hearing of the application and more than 10 months after conviction. We have previously stated that the late raising of grounds of appeal as to matters chosen not to be litigated at trial will not be accepted by the Court save in exceptional cases. Counsel should be aware of the Court’s view: see what was said by the Court in R v. Challoner[4]; R. v. Wright[5] and R. v. Haseloff[6].
[4][2000] VSCA 32 at paragraph 4
[5][1999] VSCA 145 at paras.13-20
[6][1998] 4 V.R. 359 at 375-376

In the state of the evidence her Honour did not fall into error in not directing the jury on intoxication. First, as we have said, the evidence of intoxication of the applicant was imprecise, vague and uncertain. Second, defence counsel neither referred to it nor complained as to the judge’s lack of direction. Third, the test is not whether the applicant was affected by alcohol – many crimes are committed thus – but whether the evidence was capable of raising a doubt as to voluntariness or the existence of actual intent or (in recklessness) foresight of consequences: R v. O’Connor;[7] Pemble v. R[8] and R v. Peterkin.[9] The present case is a far cry from R v. Faure[10] (a case which involved consideration of recklessness), where the evidence revealed that the accused’s blood alcohol concentration at the relevant time was of the order of 0.22%. By contrast in R v. Challoner, supra, such evidence was lacking. Khouzame and Saliba[11] does not derogate from that conclusion. It concerned the subjective element (knowledge) in aggravated sexual assault. Each case turns on the actual evidence of intoxication and the identity of the legal element to which that evidence may relate.
[7](1980) 146 C.L.R. 64.
[8](1971) 124 C.L.R. 107.
[9](1982) 6 A.Crim.R. 351.
[10][1999] VSCA 166.
[11](1998) 108 A.Crim.R. 170 at 186–187 per Kirby J. (in whose judgment Ireland and Bell JJ. agreed).

The mere invocation of expressions such as “drunk”, “out of it” or “pissed” without more – that is, without some substantial evidentiary basis – is insufficient to require a direction on intoxication. In many cases, doubtless to assuage concern over unacceptable conduct, epithets such as those are used. More is needed to render necessary a direction on intoxication. Counsel for the applicant submitted that the questions of complicity and recklessness, which were before the jury, and the acquittal of the applicant on Count 1, all point to the necessity of a direction being given to the jury on the matter of intoxication. We do not agree. The evidence of intoxication was of such a quality that it was not necessary for judicial direction to be given. The conduct of counsel below supports that conclusion. This ground fails.

Lies and consciousness of guilt[12]

[12]We shall for convenience, like the justices who were party to the joint judgment in Zoneff v. The Queen [2000] HCA 28, use this phrase for convenience, whilst conscious of its shortcomings: ibid, paras.15, 62, 63 and 64.

Ground 2 complains that the judge erred in her directions on lies and consciousness of guilt.

During the course of discussion following the rejection of a no-case submission and before final addresses, her Honour described the admitted lies told by the applicant during his first interview by police as a classic case of false denial. Counsel then appearing for the applicant, in discussing Edwards v. R.[13], said that the most important matter for her purposes was that the jury should be instructed that there may be reasons for the telling of a lie apart from the realisation of guilt. Her Honour said that she would certainly do that. Counsel went on, drawing on Edwards[14], that a lie may be told out of panic, to escape an unjust accusation, to protect some other person, or to avoid a consequence extraneous to the offence. The prosecutor conceded that her Honour had to warn the jury of that, and her Honour said, “Yes. I’ll do all that”.
[13](1993) 178 C.L.R. 193
[14]at 211

In the principal part of her charge on this topic the judge told the jury that the Crown asked them to infer the guilt of the applicant from certain passages in his (first) interview with the police, where the Crown said that the accused told lies and that his reason for lying was his consciousness of guilt of a crime of which he was charged. Her Honour then recounted the evidence said to constitute the lies. She began by reading to the jury Acting Sergeant Jean’s evidence that the applicant told him at the scene that he arrived at the premises at 4 p.m. on the day in question to find Mr. Bowman unconscious in the bath tub. She then read the parts of the record of interview relied on, the substance of which was that the applicant had nothing to do with any injury and did not know anything about the injury caused to Mr. Bowman and that the first time he found him was in the bath. It is accepted that her Honour precisely identified the lies. She then directed the jury that they might infer consciousness of his own guilt of the particular crime on the part of the applicant by the telling of lies if, but only if, they were satisfied beyond reasonable doubt of three matters, which she stated twice, with some amplification the second time. They were that the statements attributed to the applicant were indeed made by him; that the statements were lies, that they were not only untrue but that he knew at the time he made them that they were untrue; and that the only reasonable explanation that the applicant did tell those lies “was his consciousness of guilt of this crime, not of some other wrongdoing or because of some other reason to lie about the matter”. Her Honour stated that the first two matters were not in issue, though the jury still had to be satisfied of them beyond reasonable doubt. There was, as her Honour said, no doubt about the second matter because in his second record of interview the applicant had admitted that the statements were lies and that he knew that they were lies. Her Honour pointed out that the third matter was in issue. She then directed the jury that, if they were satisfied beyond reasonable doubt that the applicant did tell lies in that way and did so because of a consciousness of guilt of the crime charged, they could use that consciousness of guilt as evidence of actual guilt. She went on:

“In doing so, however, you should be careful to consider the possibility that the accused may have wrongly believed himself guilty.
If you are able on the whole of the evidence to exclude that possibility beyond reasonable doubt, the evidence of the accused’s lies, become[s] evidence of his guilt.”

Her Honour next summarised the Crown case in relation to the lies and then set out in considerable detail the defence reply to that. In essence, it was that the applicant was scared of Egan who had a propensity for violence, and reference was made to the fact that Stivic and Ricky Le Broc had both initially dissimulated to the police because of fear of Egan. (Her Honour later redirected, after the point had been raised by the prosecutor, in order to correct one answer of the applicant which she had misread.)

The applicant submitted to this Court that her Honour’s directions were deficient. The first and principal complaint was that the jury were not instructed, with the weight of judicial authority, that there might be reasons for the telling of a lie apart from the realisation of guilt of the crime charged. Nor was the charge as a whole apt to convey that direction. The trial judge simply re-stated counsel’s arguments as to such reasons, which was insufficient. In addition to the fear of Egan, the trial judge should also have identified other possible reasons which, it was submitted, clearly arose on the facts, such as simple panic, to escape an unjust accusation by one or more of the others present or a belief that he had committed some assault-based offence but not the offences charged. It was said that the only direction given as to such reasons by the judge herself, that is, with the weight of the authority of her office, was that the jury “should be careful to consider the possibility that the accused may have believed himself guilty”. It was accepted that her Honour’s directions satisfied the opening part of the well-known passage in the judgment of Deane, Dawson and Gaudron, JJ. in Edwards[15], but it was submitted that they did not satisfy the passage which immediately followed, where their Honours said:

“Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realisation of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission.”[16]

[15]at 210-211

[16]Emphasis added and footnote omitted.

An Edwards direction is a direction that is necessary, in particular circumstances, to prevent a miscarriage of justice. The miscarriage to which it is directed is the jury’s using a lie in an impermissible way. It may be that her Honour’s directions on lies and consciousness of guilt are not a perfect model, but, as is made clear in R. v. Konstandopoulos[17], the critical passage in Edwards is not such that the omission of any component of it automatically results in a miscarriage of justice. It is, of course, fundamental that a judge should tailor his or her charge to the circumstances of the case, telling the jury what they really need to know and omitting what is irrelevant.
[17][1998] 4 V.R. 381 at 387-389

Her Honour did not instruct the jury in so many words that there might be reasons for the telling of a lie apart from the realisation of guilt, but the jury could not have been left in any doubt about that possibility by what she said. For she twice contrasted with consciousness of guilt of the crime charged as the explanation for the telling of the lies, consciousness of guilt of some other wrongdoing and some other reason to lie. It is true that her Honour did not lend the authority of her office to any specific possibility for the jury’s consideration other than that the applicant might have wrongly believed himself guilty, and true, too, that she did not mention any of the four possible reasons stated in the passage set out earlier from Edwards. But, despite the general nature of those four possible reasons, we do not consider that their Honours intended that they should all be put before any jury asked to treat lies as told out of consciousness of guilt even where the facts of a case in no way suggest them as possible reasons for the lies. The words “a reason of that kind” in the following sentence in the passage set out earlier tend to support that view. Nevertheless, it may be that the possibility that the applicant lied through fear of Egan had as a concomitant the possibility that he lied “to protect some other person”, namely, Egan. In any event, her Honour did not, with the authority of her office, put before the jury for their consideration the possibility that the applicant lied out of fear of Egan. Her Honour did, however, deal at very considerable length with the defence case on the lies, clearly putting it before the jury for their consideration and contrasting it with the Crown case that the applicant was conscious of his involvement in the causing of serious injury.

The question is whether the directions actually given by her Honour avoided the risk of the jury’s using the lies in an impermissible way: Konstandopoulos[18]. Since the applicant had put forward a positive explanation for the lies there was, in our view, no need for her Honour in the circumstances of this case to put before the jury for their consideration other reasons for lying which the facts of the case did not suggest. To suggest other reasons might only have detracted from the reason actually advanced on behalf of the applicant. The risk which the Edwards direction was required to prevent was a miscarriage of justice arising from using the lies as incriminatory on any other basis than satisfaction beyond reasonable doubt that they were told because the applicant was conscious of his guilt of the crime charged[19]. In the end we have concluded that the jury would have been in no doubt that the lies could be used by them as incriminatory only if they were satisfied beyond reasonable doubt that consciousness of guilt of the crime charged was the only explanation for them and in no doubt that they could not reach that conclusion unless, apart from anything else, they excluded beyond reasonable doubt fear of Egan as the explanation. The relevant risk was therefore avoided.
[18]at 388
[19]Although two crimes were charged in the alternative, we have found it convenient to speak, like her Honour, in the singular. Consciousness of guilt would apply to either.

This conclusion is supported by the failure to take an exception to the charge on the particular point now under consideration. It is true of course that, as we have mentioned, counsel then appearing for the applicant had sought directions in the very terms of the statements in Edwards and it might be said that she should not have been expected to take an exception when her Honour failed to follow Edwards verbatim. But we should have thought the natural response if the charge appeared defective would have been immediately to remind the judge of what she had said she would do.

Even if we were wrong in our conclusion, we consider that, within the meaning of the proviso to s.568(1) of the Crimes Act 1958, no substantial miscarriage of justice actually occurred. For, there having been no fundamental irregularity in the trial, the applicant was not, as it seems to us, deprived by reason of the (assumed) inadequate direction of a chance of acquittal which was fairly open to him. Lending judicial authority to the possibility that the lies were told out of fear of Egan would, in our view, in no way have converted a doubt (if any) left by the rest of the Crown case into a reasonable doubt or itself have created such a doubt.

In expressing the views which we have in the three preceding paragraphs we have considered another argument which might have been, but was not, raised before us. This is that her Honour’s statement in the passage from the charge which we have set out earlier, that, if the jury were able to exclude beyond reasonable doubt “that possibility” (scil., the possibility that the applicant might have wrongly believed himself guilty), the evidence of the lies became evidence of the applicant’s guilt, might have led the jury to think that consciousness of guilt was established merely by the exclusion of “that possibility” beyond reasonable doubt. But, remembering that a charge is received by a jury aurally[20], we think that the portion of this charge preceding the passage set out earlier would have made it clear to the jury that “that possibility” was merely one of the possible reasons to be excluded beyond reasonable doubt before the jury could conclude that the lies were told out of consciousness of guilt of the crime charged.
[20]cf. Zoneff at para.81 per Kirby, J. (diss.)

Two other criticisms of her Honour’s directions on lies and consciousness of guilt were advanced. First, it was said that the jury ought to have been directed on how the evidence of intoxication might have been used in assessing the applicant’s actions following the assault, including his interview with police. Faure[21] was relied on. In our view, the judge was not obliged to give the direction contended for. As we have explained when discussing intoxication generally, this case is far different from Faure. Moreover, the jury had the informant’s evidence that the applicant appeared to be intoxicated to a small degree at the time of his interview at the Morwell CIB office commencing at 10.20 p.m. on 29 August 1996 and, as persons of the world, were well able to assess the effect of that evidence.
[21]at para.28

Secondly, it was submitted that, given the hypotheses reasonably open which were inconsistent with consciousness of guilt, it was unsafe to leave lies as going to consciousness of guilt and corroboration because it was impossible to exclude beyond reasonable doubt the fear of Egan as the explanation for the lies. Reliance was placed on R. v. Laz[22]. This submission is strictly not within the ground under consideration, which assumes the propriety of leaving lies as going to consciousness of guilt. Moreover, it is quite inconsistent with the conduct of the defence case below, which accepted that this was a proper topic for the jury’s consideration. In any event, the submission should not be accepted. It seeks to have the judge determine, and determine in a certain way, a question which was eminently one for the jury. Laz is quite different from the present case. There the false denial, if treated as being a denial of the digital penetration the subject of the first count of rape, could not have amounted to consciousness of guilt in respect of the second count, a count of penile penetration. The Court pointed to the difference between that case and this when it said[23]:

“Whatever course should be taken with conduct amounting to consciousness of guilt where there are a series of alternative counts (or counts permitting alternative verdicts) arising out of the very same facts, very special problems arise when the same lie and thus the same consciousness of guilt is argued to be applicable to charges arising out of more than one event.”
[22][1998] 1 V.R. 453 at 467-469
[23]at 467

Corroboration

Ground 3 alleges that the trial judge erred in her directions on corroboration.

The trial judge gave an accomplice warning in respect of Egan and left two pieces of evidence to the jury as capable of amounting to corroboration. The direction, which the judge repeated a little later in her charge, informed the jury of the danger of convicting on the evidence of an accomplice, such as Egan, in the absence of corroboration, the reasons for the danger and the need to look for corroboration, with an explanation of what is meant by corroboration. The direction seems unexceptionable and no criticism was made of it. The two pieces of evidence which the judge instructed the jury were capable of amounting to corroboration were the lies told by the applicant and part of the evidence-in-chief of Ms Stivic in which she said that the applicant punched Mr. Bowman after Egan had done so; that they both “got into” him and then put him on the floor; that they just kept rapidly giving him punches with a few kicks; that the applicant started laying into him before he left the room and then Egan started hitting him a couple more times while the applicant was still in the room, after which the applicant left. The passage closed with Stivic saying that she did not see the applicant kick Mr. Bowman. Her Honour directed the jury that, whilst those two pieces of evidence were capable of amounting to corroboration of Egan’s evidence as to the matters in issue, it was for the jury to say whether they accepted the evidence and whether they regarded it as in fact corroborative.

We have not so far mentioned that under ground 2 it was argued for the applicant that, in so far as her Honour directed the jury that the lies of the applicant were capable of amounting to corroboration of the accomplice Egan, the direction was vitiated because the direction concerning lies was itself defective. We have rejected the challenge to the direction concerning lies which was basal to that argument. Under the present ground the argument, as we understand it, is that there was, in effect, “no inculpatory event mentioned by the accomplice”[24] since his evidence of the applicant’s continued presence in the loungeroom after the initial altercation was inconsistent with the evidence of Stivic.
[24]R. v. Rayner [1998] 4 V.R. 818 at 851 per Brooking, J.A. It was accepted before us, as Brooking, J.A. there re-emphasised at 850-851, that the corroborating witness did not need to confirm directly some piece of evidence given by the accomplice that implicated the accused.

The difficulty with this argument is that it is selective as to the evidence, and pre-empts the jury’s findings. Her Honour distinctly told the jury that it was for them to determine first whether they accepted as reliable the evidence she told them was capable of corroborating Egan. She twice told them that they must consider Stivic’s evidence-in-chief, cross-examination and re-examination. Thus the jury were free to reject the evidence-in-chief of Stivic and prefer her evidence in cross-examination to the effect that the applicant was not present in the loungeroom when Egan was kicking Mr. Bowman while he was on the ground and stomping on his head, or her evidence in re-examination to the effect that before the applicant left the room he started laying into Mr. Bowman again and was present while Egan thereafter hit him a few more times. But the jury was also free to accept Stivic’s evidence-in-chief. That evidence was criticised as being in part in response to leading questions, but the fact is that the answers went into evidence.

It was claimed that Stivic did not, in the end, have the applicant in the room when Egan kicked and stomped on Bowman’s head or had Bowman hitting his head on a stationary object after a fall when the applicant was there, these two ways being the only relevant ways in which, it was said, the serious head injury could have been caused. But all that was for the jury.

Counsel for the applicant before us accepted that her Honour was required to direct the jury about corroboration despite the attitude of counsel then appearing for his client. His argument on corroboration before us seemed essentially to challenge her Honour’s leaving of the part of Stivic’s evidence summarised above to the jury as capable of corroborating Egan. That argument was supported by reference to the inconvenient consequences of her Honour’s direction. In our view, her Honour was correct.

Finally, it was submitted in writing that the effect of her Honour’s directions on corroboration was that the jury might have (erroneously) understood (a) that (provided the warning was heeded) they were entitled to convict on Egan’s evidence alone; (b) that Egan’s evidence was more incriminating than it appeared to be; and/or (c) that Stivic’s evidence somehow converted Egan’s non-inculpatory version of events into an inculpatory version. But the jury had been directed as to the matters which the Crown must prove and it must, in the absence of something egregious, be accepted that the jury were obedient to her Honour’s directions.

Although counsel for the applicant asked her Honour to re-direct on one aspect of corroboration, no relevant exception raising the present argument was taken. That tends to suggest that the charge was not considered, when delivered, as defective on corroboration.

Intention more serious than recklessness

Ground 4 complained that the judge erred in directing the jury that “the law regards it as more serious to do something intentionally than to do something recklessly.” It was submitted for the applicant that it was wholly irrelevant to the jury’s task to know such a thing (though her Honour had told them that they “should know” it) and that there was an unacceptable risk that the statement by her Honour was apt to invite the jury to compromise.

Her Honour’s statement was correct in law, but strictly irrelevant to the jury’s task. Her Honour had, however, given the jury a separate trial direction, in which she had specifically instructed them that it would be a betrayal of their oath to arrive at a verdict by compromise between the two counts. She further told them that they might convict on either of the counts, but might only do so if they were unanimously agreed that the Crown had proved the elements of that count beyond reasonable doubt. There is nothing here to falsify the general assumption on which the law works in the absence of something egregious that juries obey judges’ directions. Accordingly, her Honour’s separate trial direction, couched in the terms it was, removed any risk of a compromise verdict. It was stated before us that the instant complaint was “relatively minor”. However, by reason of the separate trial direction, we are of the view that there was no miscarriage at all. That is confirmed by the absence of any relevant exception, which suggests that to those hearing it as delivered her Honour’s impugned statement did not seem to create any difficulty. We would finally observe that an astute juror might in any case deduce that recklessness was less serious than intention and that sometimes (e.g. with murder and manslaughter) a hierarchy of seriousness is obvious.

Complicity

Ground 5 alleges that the judge erred in her directions on complicity.

In directing the jury on the elements of the offence of recklessly causing serious injury, her Honour began by explaining recklessness and emphasising that it was serious injury that the applicant must have foreseen would probably occur, determining nevertheless to take the risk. She continued:

”So in order to prove the commission of this offence, the Crown must prove beyond reasonable doubt, each of the following elements of this offence. One: That an act or acts of the accused himself or acting in concert with Shaun Egan or Shaun Egan with the accused aiding and abetting caused serious injury to the victim. That is the same as the first element of the other one, of Count 1 [scil., intentionally causing serious injury]. Two: That at the time of performing the act or acts, the accused foresaw that serious injury was a probable result and took the risk that it would result by performing the act or acts which caused it.”

Her Honour repeated the last sentence. She had considerably earlier in her charge more than once given the jury directions in unexceptionable terms on acting in concert and aiding and abetting. In accordance with R. v. Loweryand King(No.2)[25] those directions stressed the intentional aspect of the three forms of conduct which may constitute aiding and abetting - “... intentionally helping ... intentionally encouraging ... intentionally conveying ... an assent and concurrence ...”.

[25][1972] V.R. 560 at 561. A detailed examination of criminal complicity is to be found in Osland v. The Queen (1998) 197 C.L.R. 316 at 341-351 per McHugh, J.

The applicant’s criticism of her Honour’s directions on complicity in the offence of recklessly causing serious injury is confined to her Honour’s statement of the second element, that is, the mental element. Further, the criticism applies only in relation to the third way in which the Crown put its case, that is, the second form of complicity - aiding and abetting. There was no suggestion that it was not possible to aid and abet an offence of recklessness and in particular the offence of recklessly causing serious injury.[26] It should not be thought that, by mentioning this, we consider such a suggestion arguable.[27]
[26]Compare Mallan v. Lee (1949) 80 C.L.R. 198 at 216 and Giorgianni v. The Queen (1985) 156 C.L.R. 473 at 477 and 491.
[27]A person may, for example, aid and abet involuntary manslaughter: Giorgianni at 502-503 and cases there cited. Indeed R. v. Vollmer [1996] 1 V.R. 95 shows that a person may aid and abet the offence in question here.

It was submitted for the applicant in counsel’s written outline of argument that, whilst foresight of probability was the correct test of mens rea for a principal offender[28], it was not the appropriate test for aiding and abetting such an offence. Rather, the applicable test was that it must be established that the accused knew or believed that what he was assisting or encouraging was something which went to make up the facts which constituted the offence. He need not recognise the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it. It was not sufficient, it was submitted, if his knowledge or belief extended only to the possibility or even probability that the acts which he was assisting or encouraging were such, whether he realised it or not, as to constitute the factual ingredients of the crime. For that Giorgianni[29] was cited. It was submitted that, in particular, the jury should have been directed to the effect that, for the purposes of aiding and abetting, the Crown must prove beyond reasonable doubt not only that the applicant intentionally assisted or encouraged Egan to cause serious injury but that he knew or believed that, by his actions, serious injury would be caused. Any ambiguity or tension in those written submissions was removed when they were summed up orally in the submission that, to be guilty as an aider and abettor, the applicant must have known or believed that Egan in doing what he did would (not, would probably) cause serious injury. For the respondent, on the other hand, it was submitted that if the applicant was aware of the physical acts being, or about to be, performed by Egan and if the applicant aided and abetted Egan to perform those acts then his state of knowledge need only be that required for a principal offence of recklessness, that is, foresight that serious injury would probably (not, would) be caused. Accordingly, the respondent submitted, there was no misdirection.
[28]R. v. Campbell [1997] 2 V.R. 585 at 592-593
[29]at 506-507.

In Giorgianni the High Court was concerned with aiding and abetting an offence of strict liability, namely, culpable driving causing death (and, in relation to one count, causing grievous bodily harm), where the mode of driving alleged was driving in a manner dangerous. The Court held that a person who aided, abetted, counselled or procured another person to drive in a manner dangerous to the public might, if death or grievous bodily harm had been occasioned, be convicted of the principal offence. It further held that such a person could not be so convicted unless, knowing “all the essential facts which made what was done a crime”[30], the person intentionally aided, abetted, counselled or procured the acts of the principal offender. Neither negligence nor recklessness on the first-mentioned person’s part was sufficient, though “wilful blindness”, when equivalent to knowledge, was. In the passage[31] particularly relied on for the applicant Wilson, Deane and Dawson, JJ. said,

“For the purposes of many offences it may be true to say that if an act is done with foresight of its probable consequences, there is sufficient intent in law even if such intent may more properly be described as a form of recklessness. There are, however, offences in which it is not possible to speak of recklessness as constituting a sufficient intent. Attempt is one and conspiracy is another. And we think the offences of aiding and abetting and counselling and procuring are others. Those offences require intentional participation in a crime by lending assistance or encouragement. They do not, of course, require knowledge of the law and it is necessary to distinguish between knowledge of or belief in the existence of facts which constitute a criminal offence and knowledge or belief that those facts are made a criminal offence under the law. The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence. He need not recognize the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it. It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which he is assisting or encouraging are such, whether he realizes it or not, as to constitute the factual ingredients of a crime. .... Intent is required and it is an intent which must be based upon knowledge or belief of the necessary facts.”

Their Honours had earlier said[32] that intent was an ingredient of “the offence”[33] of aiding and abetting or counselling and procuring and that knowledge of the essential facts of the principal offence was necessary before there could be intent. A little later, in rejecting the possibility that the commission of an offence could be aided or abetted by acting recklessly, their Honours had said[34] that the necessary intent was absent if the person alleged to be a secondary participant lacked knowledge that the principal offender was doing something or was about to do something which amounted to an offence. Gibbs, C.J. stated[35] that an abettor must have intended to help, encourage or induce the principal offender to bring about the forbidden result, so that both knowledge of the circumstances and intention to aid were necessary to render the person liable as a secondary party. All members of the Court approved the well-known statement of Lord Goddard, C.J. in Johnson v. Youden[36].

[30]These words are those of Gibbs, C.J. at 488 after a review of the authorities. Mason, J.’s conclusion after a like review is at 494-495.

[31]at 506-507.

[32]at 504-505

[33]See 500, but cf. 490 and note Vollmer at 169; R. v. Robert Millar Ltd. [1970] 2 Q.B. 54 at 72-73 and Gillies, Criminal Law, 4th edn., 154 as to whether aiding and abetting is itself an offence. Section 323 of the Crimes Act is the relevant procedural provision.

[34]at 505

[35]at 482

[36][1950] 1 K.B. 544 at 546

Nevertheless, it cannot, we think, be said that the law with respect to the mental element in aiding and abetting a crime of recklessness is clear beyond argument.[37] It is true that the passage from the joint judgment in Giorgianni set out above and the passages from the other two judgments referred to at that point of these reasons are expressed in unqualified terms. However, there is some room for debate as to the meaning of certain expressions in those passages, such as the meaning of “acts” in the joint judgment and the expression “all the essential facts” in the other judgments. Furthermore, all the judgments recognise that there are some exceptions to the universality of their propositions. For instance, in certain cases the requisite knowledge need not extend to the precise crime which is in fact committed[38]; a person can aid and abet the offence of driving with more than the prescribed quantity of alcohol present in the blood even though the person does not know the concentration of alcohol in the driver’s blood[39]; and in manslaughter and culpable driving cases it is not necessary to show knowledge on the part of the aider and abettor that death (or grievous bodily harm) would result[40]. Moreover, the High Court’s consideration was not directed to principal offences of recklessness, or indeed to principal offences where any mental state on the part of the principal offender was required.[41] In addition, the reasoning in Giorgianni has been criticised[42], though such criticism clearly cannot stand in the way of our following faithfully the ratio of Giorgianni.
[37]See Laws of Australia, Subtitle 9.2, para.40, where three possible approaches are considered.
[38]Giorgianni at 505.
[39]Giorgianni at 486-487. Consequences of this were worked out in detail in Bruce v. Williams (1989) 46 A.Crim.R. 122.
[40]Giorgianni at 495 and 502
[41]But the High Court has since established that for an alleged accessory to be liable as “knowingly concerned in” a principal offence of engaging in certain conduct for a stated purpose the accessory must have had knowledge of the purpose of the principal offender: Edwards v. The Queen (1992) 173 C.L.R. 653; and in Davis v. The Queen (1991) 66 A.L.J.R. 22 McHugh, J. at 23-24 expressed the opinion that, for a person to be guilty as aider of the offence of having a prohibited drug in possession “with intent to sell or supply”, the Crown must prove that the alleged aider had knowledge of the intention of the principal to sell or supply the drug; and this was so, his Honour considered, notwithstanding that a provision of the relevant statute would have operated to deem the principal to have had possession with that intent: actual knowledge on the part of the alleged aider was necessary.
[42]For example in Gillies, op. cit., at 170 and in Howard’s Criminal Law, 5th edn., at 333-334.

We have looked for assistance on the question of the mental element in aiding and abetting a crime of recklessness in cases decided after Giorgianni and textbooks published since then. Counsel were able to cite only one case dealing with the point, R. v. Vollmer[43], a decision of the Court of Criminal Appeal, and only one other decision where there was an elaborated application of Giorgianni, R. v. Stokes & Difford[44], a decision of the New South Wales Court of Criminal Appeal. We have found no other relevant cases. We have naturally checked the cases in which Giorgianni has been judicially considered and consulted numerous textbooks.
[43][1996] 1 V.R. 95
[44](1990) 51 A.Crim.R. 25.

We now state our conclusions on this ground as argued. The matter is by no means easy. The statement in Giorgianni could be applied to the very different principal offence here and, when read strictly, used to support the applicant’s argument. But that is not what has been done by intermediate appellate courts in the only two decisions given since Giorgianni which seem relevant. In Vollmer, in relation to the very offence in question here, recklessly causing serious injury, Southwell and McDonald, JJ., recording that the applicant (who had been found guilty of aiding and abetting the offence) “was not himself applying pressure to the neck of the deceased” spoke[45], with the agreement of Ormiston, J., of the jury’s satisfaction that the applicant “realised that that pressure would probably cause serious injury”, in such a way as to make it clear that they considered that such realisation fully stated the mental element requisite for liability as an aider and abettor of that offence. There would have been no point in referring to the jury’s satisfaction that the applicant “realised” that the pressure “would probably cause” serious injury if the jury had to be satisfied, not of that, but that he knew that the pressure would cause serious injury. That their Honours in making those statements were well aware of Giorgianni appears clearly from an earlier portion[46] of their reasons, where, although they did not refer to the passage from the joint judgment set out above, their Honours, amongst other things, set out the succinct statement to the same effect by Gibbs, C.J.[47] The passages in the reasons of Southwell, and McDonald, JJ. to which we have referred appear to be essential to their Honours’ reasoning. In his reply counsel for the applicant frankly said that the first two passages from Vollmer which we have mentioned supported the argument of the respondent. But he contended that the Court of Criminal Appeal did not apply the crux of Giorgianni and that their Honours were wrong. Given the different nature of the principal offence aided and abetted in Vollmer[48] as compared to Giorgianni, we are not prepared to say that. We were not expressly invited to hold that the statements in Vollmer were per incuriam and in any event would not, as presently constituted, entertain such a request. Vollmer stands as a decision given after a consideration of Giorgianni which supports precisely the challenged part of her Honour’s charge.
[45][1996] 1 V.R. 95 at 171. Their Honours made a similar statement at 172.
[46]at 168-169
[47]Giorgianni at 487-488.
[48]As explained in Vollmer at 170, there are cases, of which it was an example, where the accessory may be convicted of a lesser offence than that which the principal offender has committed.

Stokes & Difford is also against the applicant’s submission. It was there held[49] that, for liability as an accessory to the crime of maliciously inflicting grievously bodily harm without intent, the Crown must establish, so far as presently relevant, that the alleged accessory present at the time knew or was aware of the principal offender’s intention[50] to do the act which caused the grievous bodily harm “(but not that it would in fact cause such harm)”.[51] On the same page Hunt, J. expressly rejected defence submissions that the Crown had to establish that the alleged accessory intended to encourage the principal to inflict grievous bodily harm or knew that the principal intended to inflict grievous bodily harm upon the victim: the Crown did not have to establish that the alleged accessory was aware that the act which the principal intended to do would in fact cause grievous bodily harm to the victim. In so far as the applicant’s submission here extended to asserting that the Crown had to prove that he intended that serious injury should be caused to the victim, Stokes & Difford is directly to the contrary, for Hunt, J. expressly stated[52] that malice (the relevant mental element) had to be established in the mind of the principal offender, not the accessory, and that the latter’s intention that the victim be injured was never directly relevant to the Crown case against him. As his Honour said:

“An accessory’s intention is to assist and encourage the principal offender in the commission of the crime; it is positively confusing to speak of the accessory’s intention towards the victim.”

[49]at 39 per Hunt, J., with whom the other members of the court simply agreed.

[50]At 38 Hunt, J. usefully pointed out that it is usually more appropriate to speak of the accessory’s knowledge or awareness of the principal offender’s intention to do an act rather than to speak of the accessory’s knowledge or awareness of the act done by the principal offender, since the knowledge will usually crystallise in the accessory’s mind before he involves himself as an accessory to the crime in question. Compare Giorgianni at 505 and the reference at 481 to knowledge that a particular deed was contemplated. The requisite knowledge is sometimes described as “foreknowledge”.

[51]Emphasis added.

[52]at 42

Besides the case law, there are other considerations tending against the applicant’s submission. It results in complexity and asymmetry, though admittedly these are not fatal considerations. Moreover, because like knowledge would be required in the case of aiding and abetting the intentional causing of serious harm, it would make the mental element (as well as the physical element) of aiding and abetting the two offences the same (or very nearly so). Again, it must not be forgotten that on her Honour’s charge, and correctly, intention was required on the part of the aider and abettor: her Honour instructed the jury that the acts of aiding must be done with the intention of aiding the commission of the principal offence. Finally, the fact that no relevant exception was taken suggests that the direction as to the mental element was not thought to be defective at the time it was given.

In the course of his reply and in his further written submissions delivered in response to the Court’s invitation counsel for the applicant suggested that, in the light of Giorgianni, it may be a requirement that an aider and abettor know or believe the state of the principal’s mind, that is (here), that Egan foresaw that serious injury would probably result. But that, counsel said, “would be difficult”, and in the written submissions he stated that it may be that this additional requirement – “if it be such” – is confined to cases such as Edwards[53], where the principal offence requires proof of “an ulterior or additional purpose or intention over and above the basic actus reus and mens rea.” Such cases can, it is true, be distinguished as dealing with offences requiring some super-added mental element, but there is a question whether that is a distinction without a relevant difference. Be that as it may, it cannot be denied that Stokes & Difford[54] does support the view that the aider and abettor “must be aware also of the existence of any state of mind on the part of the principal offender which must be established by the Crown to show that the crime was committed by him”. Thus in that case it was held that the Crown must establish that the accessory knew or was aware not only of what has been mentioned above but also that the principal offender’s intended act would be done by him “maliciously”. But there may be a question whether that is a correct reading of the expressions “facts which constitute the commission of the relevant criminal offence” and “acts” in the passage set out earlier from the joint judgment in Giorgianni. Such a reading certainly makes for complexity. Nor does Vollmer suggest that the mental element for an aider and abettor includes knowledge of the principal offender’s mental state. It is, however, unnecessary to express a concluded view on this question, for two reasons. First, it was not the point on which the application on ground 5 was mounted and counsel never directly made the submission that the charge was defective on this score. Secondly, and in any event, no exception to the charge was taken on this basis and, in our view, this is a clear case for the application of the proviso to s.568(1) of the Crimes Act. On the facts of this case as they must have been found by the jury it was inevitable that the jury, assuming it got to considering the third way in which the Crown put its case (that is, aiding and abetting), would inevitably have found that the applicant knew that Egan at the very least foresaw that serious injury would result from his conduct.
[53]and Davis per McHugh, J.
[54]at 38, and likewise at 39 and 41

Causation

Ground 6 alleges that the trial judge erred in failing to direct the jury sufficiently or at all on causation. There was no issue at the trial but that Mr. Bowman suffered serious injury to his head in his house on 29 August 1996. As will be recalled, in the course of charging the jury as to the elements of the offence of recklessly causing serious injury her Honour said that the Crown must prove:

“One: That an act or acts of the accused himself or acting in concert with Shaun Egan or Shaun Egan with the accused aiding and abetting caused serious injury to the victim. That is the same as the first element of the other one, of Count 1.”[55]

[55]Emphasis supplied.

In the passage quoted her Honour made it clear to the jury that they must be satisfied that an act on the part of the applicant or one in which he was complicit caused serious injury to the victim. In a case like this the concept of cause was uncomplicated and the jury needed no elaboration of the word “caused” in the charge. In relation to the common element in count 1 there are other passages in which her Honour referred to the notion of cause. In one she spoke of the serious injury being alleged by the Crown to have been inflicted “from” an assault upon the victim. So, if the ground is strictly construed, the short answer to is that there was an adequate direction.

However, counsel for the applicant, without objection from counsel for the respondent, advanced a somewhat different argument under this ground. He submitted that over and above the issues identified by her Honour for the jury (namely, whether the applicant intended to cause serious injury himself or as a joint participant or as an aider and abettor), squarely in issue in the case was how, by whom and in what surrounding circumstances the victim’s head injury was caused. That may be accepted, but the charge sufficiently covered those additional issues. Counsel then submitted that there was evidence which might have raised in the minds of the jury the possibility of accident. Orally he conceded that the evidence for this was “perhaps faint”. We have considered the passages in the transcript and in the two records of interview that are relied on and are of the opinion that, realistically considered, they do not support the suggestion. We are confirmed in that opinion by the fact that her Honour was not asked, either in advance of her charge or by way of exception to it, to instruct the jury that there was an issue of accident which the Crown had to exclude and to give them appropriate directions. It is true that by way of exception her Honour was asked to add to her summary of defence counsel’s submissions as to how the serious injury was sustained other possibilities that defence counsel have raised in her address, and declined to do so. But that is not, in our view, germane to the present complaint or the ground of appeal under consideration.

It was nevertheless submitted for the applicant that her Honour erred in not directing the jury that the Crown must prove that the act or acts which caused the serious injury were conscious, voluntary and deliberate, and that she should also have re-directed the jury on causation in general and related the law thereon to the alternative hypotheses raised on the evidence.

In the circumstances of this case and having regard to the issues in it, we consider that her Honour’s direction set out above, together with other passages in the charge to which we have referred generally, was adequate. Her Honour spoke in the passage we have quoted of the applicant’s own act or acts and of his acting in concert or by way of aiding, and she had earlier more than once defined acting in concert and aiding and abetting in terms, respectively, of actual (express or tacit) agreement or understanding, and intentional participation in one of three ways. There was no suggestion that any acts of aggression or participation on the part of the applicant were not conscious, voluntary and deliberate and it was therefore quite unnecessary to refer to these characteristics. The jury knew from her Honour’s direction that they had to find that acts of the applicant himself or acts of Egan for which he was responsible or which he aided and abetted, caused the serious injury. As we have said, no relevant exception was taken and this confirms that at the time the charge was seen as adequate.

Aggregate of errors

Ground 9 alleges that an aggregate of errors led the trial to miscarry. Since, in our view, there were no errors or at any rate no relevant errors, this ground fails for want of subject matter.

Conclusion on conviction

The application touching conviction should be dismissed.

Application For Leave To Appeal Against Sentence

The maximum penalty for the offence in question applicable at the time was imprisonment for 10 years. We have set out in the first paragraph of these reasons the sentences her Honour imposed on the applicant and Egan. But we must say more about her Honour’s declaration of 436 days’ pre-sentence detention as already served by Egan under his sentence. Her Honour was informed by counsel for Egan without dissent from the prosecutor that that period had been served by him in relation to an offence. That information was erroneous. In fact (we were informed by counsel for the respondent before us) Egan had served 282 days in pre-sentence detention “in relation to” proceedings for this offence within s. 18(1) of the Sentencing Act, the balance of the 436 days being on account of outstanding, unrelated, other matters.[56] We shall return to this error, which of course was not of her Honour’s making, at the conclusion of our reasons in the present application.
[56]This other time served had no connection with these proceedings and was a sentence, not pre-sentence detention: contrast R v. Renzella [1997] 2 V.R. 88; see also the amendment effected by s. 11(1) of the Sentencing and Other Acts (Amendment) Act 1997 to the provisions there under consideration.

The learned sentencing judge sentenced the applicant and Egan on the basis, in each case, that the offender was an aider and abettor (at the very least, in Egan’s case). Holistically this may seem incongruous, but her Honour was sentencing each individual on the material then before her and she concluded, properly in our view, that the appropriate approach was to treat each as she did.

Her Honour also was correct in her assessment of the attack upon Mr. Bowman as “vicious” and “cowardly”. She correctly characterised the victim as “very vulnerable”. She took into account all relevant factors and did not take into account any irrelevant ones. We have considered the written and oral submissions for the applicant on these aspects. No error can be demonstrated, nor in our view exists, in her Honour’s reasons for sentence of the applicant. Nor, we add because ground 1, which we have been considering, was said to consist really of particulars of an allegation of manifest excessiveness, was the sentence, in our view, manifestly excessive.

We turn to the matter of parity. Her Honour correctly noted that factors existed in favour of Egan and not the applicant: notably Egan’s plea of guilty, his preparedness (which he fulfilled, though rather unimpressively) to give evidence for the prosecution, the greater delay not attributable to him to which he had been subject, and the greater rehabilitation he had achieved. For Egan, four witnesses (including a Member of State Parliament and two prison officers) were called on the plea. Her Honour found the evidence of Egan’s rehabilitation “impressive” and his prospects of rehabilitation “very good”. In the applicant’s case, her Honour noted the report dated 25 July 1997 of the Central Gippsland Alcohol and Drug Abuse Services, in favour of the applicant. Plainly, the evidence of rehabilitation was much more substantial in the case of Egan than in that of the applicant. The factors on sentence in favour of Egan and which did not apply (or which applied only in attenuated form) to the applicant were significant. Doubtless that is why the applicant in the event received a heavier sentence than Egan. Further, in a sense, the applicant’s culpability was greater than that of Egan: for the applicant was a significantly older man, who had long known the affliction which oppressed Mr. Bowman, and who was living at his premises. It appears to us that Egan’s conduct was physically more harmful to the victim than was the applicant’s, but the applicant intentionally aided and abetted it. The sentence on each of the actors was merciful – particularly that on Egan, but it, as we have said, is explained by the factors we have mentioned above. To make the sentences the same would give insufficient weight to those factors. In all the circumstances, we do not consider that the justified sense of grievance spoken of by Mason, J. (as then he was) in Lowe v The Queen[57] is made out. The application for leave to appeal against sentence is dismissed.
[57](1985) 154 C.L.R. 606 at 612; and see Postiglione v The Queen (1996) 189 C.L.R. 295 at 301.

Finally, we return to the error in the declaration of time served by Egan “in relation to” proceedings for the offence upon Mr. Bowman. We have of course not had the opportunity of hearing submissions on behalf of Egan, but, subject to that, we think that the Director[58] should apply, pursuant to s. 18(7) of the Sentencing Act, to the learned sentencing judge for an order correcting the error and requiring Egan to serve the balance of 154 days’ imprisonment. It will of course be for her Honour to decide whether in all the circumstances such an order should be made.
[58]by virtue of s.18(8)(b)

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[2000] VSCA 125

28 July 2000