R v M-V, JA & G, S - [2005] SASC 417

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v M-V, JA & G, S
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Debelle and The Honourable Justice Besanko)
10 November 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS
Appeals against conviction - appellants jointly presented on an information charging 3 offences arising from same set of facts - appellants pleaded not guilty to two of the charges - first appellant convicted of lesser alternative offence of causing grievous bodily harm - second appellant convicted of offence of causing grievous bodily harm with intent to do grievous bodily harm - whether direction on joint criminal enterprise should have been given or case left to jury on basis of liability of principal and accessory - whether jury misdirected on standard of proof - whether jury adequately directed on factual basis required to support conviction - appeals allowed.
Mohan v The Queen [1967] 2 AC 187; R v Stokes & Difford (1990) 51 A Crim R 25; Clough v The Queen (1992) 28 NSWLR 396; Zoneff v The Queen (2000) 200 CLR 234, applied.
R v Kostic & Stefanopoulos (2004) 151 A Crim R 10; R v Tangye (1997) 92 A Crim R 545, discussed.

R v M-V, JA & G, S
[2005] SASC 417
Court of Criminal Appeal: Duggan, Debelle and Besanko JJ

DUGGAN J. The appellants have appealed against convictions recorded against them in the District Court. They were charged jointly on an information which alleged three offences, namely, creating risk of bodily harm, causing grievous bodily harm with intent to do grievous bodily harm, and theft. It was alleged that the offences arose out of the same set of circumstances.
The alleged victim, Clarence Green, died before the trial from causes unrelated to the present case.
According to the prosecution evidence, Mr Green was being driven along Flaxmill Road, Morphett Vale at approximately 1.00 pm on 22 October 2004 by an employee, Ms Giles. Ms Giles saw some stones on the road. She looked back and observed the appellants behind a railing which was erected on an embankment at the side of the road.
Mr Green then directed her to drive up closer to the appellants. Mr Green was intoxicated at the time and a sample of blood taken from him later in the afternoon established that he had a blood alcohol level of .248 per cent.
Mr Green assumed that the appellants had thrown the stones on the road and he abused the appellant G who responded with abuse.
Ms Giles gave evidence that, while Mr Green and G were still yelling at one another, they started to push and shove each other. She was screaming at them to stop. She turned her back on them as she walked away a few steps. When she turned around, she saw the appellant M run towards Mr Green and punch him on the back of the head. He fell down and, according to her evidence, the two appellants began kicking Mr Green. The kicks landed on Mr Green’s back, stomach and face. She said she saw blood on his face. According to the witness, M then walked away and G threw Mr Green’s keys at him hitting him in the face. Both appellants then left the area. The witness said in cross-examination that Mr Green could have been punched by G and M after M joined in the attack and before Mr Green fell to the ground.
A nearby resident, Mr Grisotto, saw the altercation from his house. He gave evidence that Mr Green approached the appellants and started talking to them. He said that, shortly afterwards, he saw Mr Green on the ground. He saw the appellants kick him in the upper chest and head. The appellants were not known to Mr Grisotto.
G gave evidence. He said that shortly before the arrival of Mr Green he and M had been throwing stones at a beehive on the embankment. He did not see any stones go onto the road. He said a man and a woman approached him. They were shouting at him. He said the man gave him a slap on the face and G slapped him back. He said neither slap was forceful.
G said that Mr Green then threw a punch at him which struck the side of his head. He said that he then punched Mr Green four or five times to prevent a further attack. He denied kicking Mr Green. However, he said he attempted to do so while Mr Green was still standing.
According to G, M approached Mr Green when he fell to the ground. M threatened Mr Green with a rock. He said he did not see M kick Mr Green, but he did hear a thud as he turned away to pick up Mr Green’s keys. G said he threw Mr Green’s keys at him and walked off.
M did not give evidence, but he gave his version of the incident in an interview with the police. He was found in possession of Mr Green’s mobile telephone and he said Mr Green dropped it during the altercation. M said he saw G and Mr Green slap each other and then Mr Green tried to punch G, but G blocked the punch and punched Mr Green twice. The blows were heavy and Mr Green fell to the ground. Although he admitted threatening Mr Green with a brick, M said he did not kick him at any stage.
Mr Green was taken to the Noarlunga Hospital and then to The Royal Adelaide Hospital. According to the medical evidence, there was a fracture to the socket of his right eye and a rupture of the globe of that eye. These injuries were consistent with being caused by blows from a fist or a kick; neither was more likely than the other. The treating doctor, Dr Selva, was asked whether the injuries could have been caused by the throwing of keys. He replied:
It would possibly cause the fracture. It would need to be thrown with a great deal of velocity to generate enough force to cause fracture. To cause a globe rupture, it’s probably less likely but it’s possible, mainly because the keys being individual pieces will tend to deform and therefore not constitute a single object to generate enough force to rupture a globe, but I guess it’s possible if it were travelling fast enough.
The appellants pleaded guilty to the theft of Mr Green’s telephone. They pleaded not guilty to the other two counts. The first count of creating risk of bodily harm was based on the alleged throwing of stones by the appellants onto the roadway. The appellants were found not guilty of that offence. However, G was found guilty of causing grievous bodily harm with intent to do grievous bodily harm, the offence alleged in the second count, and M was found guilty of causing grievous bodily harm which was left to the jury as an alternative to the offence charged in the second count.
The prosecution put its case to the jury on the basis of a joint attack by the appellants on Mr Green. It was alleged that the eye injury, comprising both the fracture to the socket and the rupture to the globe, constituted the grievous bodily harm suffered by Mr Green. The focus of the prosecution case was on the alleged assault on Mr Green by both appellants while he was on the ground.
The prosecution case rested on the allegation that there was a joint criminal enterprise between G and M to commit the offence charged in the second count. The prosecution was required to prove, therefore, that grievous bodily harm was inflicted on Mr Green during the joint enterprise. It followed that G and M could only be found guilty of the offence charged in the second count, or the alternative offence of causing grievous bodily harm, if the injury to Mr Green’s eye was inflicted in the period from when, on the prosecution case, M ran in to join in the assault to when he walked away. The trial judge referred to this period as the second stage. He referred to the initial altercation between G and Mr Green as the first stage, and the throwing of the keys at Mr Green by G as the third stage. I will use the same categorisation for the sake of convenience.
The directions on joint criminal enterprise
Both appellants claim that the directions by the trial judge on joint criminal enterprise were inadequate in various respects.
In the course of his directions on this issue the trial judge said:
In such a situation the law says that if two people act together in pursuance of a common unlawful purpose, every act done in furtherance of that purpose by either of them is, in law, done by both of them. In other words, the combined actions of two people with a common criminal intention, which is previously agreed upon by them, will make them both guilty of the resulting crime.
He then proceeded to give the jury the commonly used example of a number of offenders involved in a bank robbery. He continued:
It is not necessary that the agreement between the two people be anything in the nature of a formal or express agreement. It may merely be a tacit or silent understanding ; that is to say, without a word being spoken. It may be an understanding arrived at on the spur of the moment. What is essential is that the two parties to it are acting in collaboration in pursuance of their unlawful purpose.
Here, the Crown alleges that M joined in G’s attack on Mr Green. By so joining in, the prosecution says, M joined in G’s purpose and they were acting together. Accordingly, each is liable for the acts of another while the common purpose exists.
. . . . . .
Ladies and gentlemen, I said a few sentences ago that one accused can only be liable for the acts of another if the relevant act is done during the existence of the joint enterprise. Here, you might find, with respect to count 2, that there was a joint enterprise only during the period that M was taking part in the physical activity, which the Crown alleges was an attack upon Mr Green.
The judge directed the jury that they could not find M guilty of the offence alleged in the second count if the injury was caused at a time when only G was assaulting the victim.
The principal complaint raised in relation to the directions on joint criminal enterprise is that they did not adequately draw the jury’s attention to the requirement of an agreement or understanding between the appellants; nor did the directions relate the principles applicable to joint criminal enterprise to the facts of the case. Whilst each of these aspects is an essential part of a direction on joint criminal enterprise, the necessary content of the direction will depend upon the circumstances of the particular case.
In my view, the directions on the applicable law were adequate. Although concise, they dealt with the essential requirement of an agreement or understanding between the parties to commit a crime. The jury were told that a tacit understanding would suffice. They were also correctly directed on the legal consequences of such an agreement or understanding.
In support of the submission that the trial judge did not adequately relate the principles to the case, counsel for M relied upon Rv Kostic & Stefanopoulos (2004) 151 A Crim R 10 and R vTangye (1997) 92 A Crim R 545 as examples of cases in which the directions on this issue by the trial judge were inadequate.
In the first case it was alleged that the appellant Stefanopoulos was part of a joint criminal enterprise to commit the offence of arson. Evidence relied upon to establish his involvement included the hiring by him of a taxi in which he and two alleged accomplices were to travel to the scene of the offence; going into a service station where it was alleged that the other two purchased kerosene; and waiting with the taxi while the other two men lit the fire. This court held that one of the deficiencies in the summing-up on the issue of complicity was a failure to adequately relate the relevant principles to the facts of the case.
In the second case it was alleged that the appellant was involved in an affray in which one of the victims was seriously injured by another offender. The appellant was attacking another victim at the time the first victim was injured. The jury were required to consider whether the appellant had committed an offence in relation to the victim who had suffered the serious injury.
The need for comprehensive directions in each of these cases is readily apparent. However, in the present case, not a great deal had to be said about the formation of an agreement or the existence of an understanding. The prosecution alleged that M saw his companion attacking the victim and that M joined in by kicking him at the same time as he was being kicked by the other offender. The issue of complicity by reason of tacit understanding was clearly before the jury. The trial judge correctly explained the essence of this aspect of the case when he referred to the prosecution allegation that M had joined in the attack by G. There was little else which could have been said in relation to the actions of M and G. In my view, the jury would have understood that their function was to determine whether M and G were part of a joint criminal enterprise by reason of their joint participation in the assault on Mr Green. If the jury accepted the prosecution case that Mr Green was assaulted by both appellants as he lay on the ground in the circumstances to which reference has been made, then the inference that there was a common understanding to commit the assault was overwhelming.
Later in these reasons I deal with the question whether the directions were adequate in dealing with the time at which M’s involvement commenced.
I should also add that, although I think that the directions on joint criminal enterprise were adequate in the respects so far discussed, I am of the view that it was unnecessary to leave the case to the jury on this basis. It would have been much simpler to apply to the facts the principles applicable to principal offender and accessory. According to the Crown case, the two appellants were both present and assaulting the victim at the same time; each was aiding and abetting the other. No agreement or understanding was necessary: Mohan v The Queen [1967] 2 AC 187 at 194; R v Stokes& Difford (1990) 51 A Crim R 25 at 35-37; Clough v The Queen (1992) 28 NSWLR 396 at 400. In order for there to be a conviction on the second count, it would not matter which of the appellant’s actions led to the infliction of grievous bodily harm as long as each had the necessary intention to inflict grievous bodily harm.
I do not think it was wrong to present the case as one of joint enterprise, but I am of the view that, if the case had been put to the jury as one involving aiding and abetting, it would have simplified the task for the jury.
The onus of proof
Both appellants complain that the trial judge misdirected the jury on the onus of proof.
The trial judge gave the usual general direction on the onus and standard of proof. He explained that the appellants could not be found guilty of an offence unless guilt had been established beyond reasonable doubt.
Later in the summing-up, he dealt with the elements of the offences with which the appellants were charged and, in the case of the second count, he stated that the necessary elements of that offence or the alternative offence arising from that count had to be proved beyond reasonable doubt. He also explained that self-defence had to be disproved by the prosecution beyond reasonable doubt.
The direction complained of was given by the trial judge when discussing self-defence. Self-defence was left to the jury in the case of both appellants. The trial judge said:
Ladies and gentlemen, in this case, depending on your view of the facts, you may have to consider the issue of self-defence at a number of stages. You may find, though it is entirely a matter for you, that there were three separate stages of violence being used towards Mr Green.
On one view of the evidence, G, acting completely alone punched Mr Green a number of times before he fell to the ground. If you think it is a reasonable possibility that the grievous bodily harm was caused to [Mr Green] during that stage of the violence, then you would have to consider whether or not G was acting in self-defence, because, if he was, then his conduct was lawful. If you think it is a reasonable possibility that the grievous bodily harm was caused by G’s punching Mr Green before Mr Green fell to the ground, and if you think further that the Crown has not disproved, beyond reasonable doubt, G was acting in self-defence, then you would have to find him not guilty.
Ladies and gentlemen, the next stage of the violence is, you might think, that stage when both accused were kicking Mr Green, if indeed you are satisfied that either one or both of them kicked him. If you think that it is a reasonable possibility that the injury to the eye was caused during the kicking, then you must consider whether or not the accused were acting in self-defence.
If you are not satisfied that the Crown has disproved that they were acting in self-defence, then you must find them not guilty.
The issue of self-defence would have become relevant if the jury were satisfied beyond reasonable doubt of all necessary elements of the offence charged in the second count or the alternative offence available in relation to that count. The complaint made in this ground is that the above direction may have led the jury to think that the fact of when, during the incident, the grievous bodily harm was caused did not have to be proved beyond reasonable doubt.
Although the jury were directed that the elements of the offence alleged in count 2 had to be proved beyond reasonable doubt, they were not specifically directed that the joint criminal enterprise alleged by the prosecution must also be proved beyond reasonable doubt. Furthermore, in the passage quoted above, the judge directed the jury’s attention to the second stage of the incident and referred to the “reasonable possibility” of the eye injury being caused at that stage. I am confident that the trial judge did not intend to instruct the jury that this aspect did not have to be proved beyond reasonable doubt. I think he was concerned more with identifying the circumstances in which the jury would be required to consider self-defence. However, I think the impugned direction was capable of misleading the jury.
I have not overlooked another passage in the summing-up where his Honour, when dealing with the case against M, said:
Ladies and gentlemen, if you think that M was only involved in part of the alleged violence, then you could only convict him if you were satisfied that the grievous bodily harm done to Mr Green was done during that part of the activity in which M had joined. In other words, you could only convict M if you were satisfied that the injury to Mr Green’s eye was caused during the time that, on the Crown case, both M and G were kicking Mr Green when he was on the ground, if you find that that, in fact, happened.
At the commencement of the summing-up the trial judge said:
So if in what I am about to say I speak of matters being “proved” or “established” to your satisfaction, or if I use any other expression relating to the proof of a matter in issue in the trial, you will understand that I always mean proof or satisfaction beyond reasonable doubt.
However, I do not think this general direction would have removed any possibility of the jury being misled by the reference to “reasonable possibility” in the impugned passage.
Unreasonable verdict
Another ground of appeal relied upon by M complains that the verdict of the jury on count 2 was unreasonable and unable to be supported by the evidence. It was argued that the evidence did not permit the jury to exclude, as a reasonable possibility, either the first or second stage of the incident as the occasion on which the eye injury was inflicted.

Reference has been made to the trial judge’s suggestion that it was appropriate to consider the case in three stages: first, the allegations of violence by G to Mr Green before M joined in; second, violence to Mr Green inflicted by both G and M simultaneously; and, third, the incident when G threw the keys at Mr Green.
The trial judge directed the jury that they could not find M guilty of the offence charged in the second count or the alternative offence available in relation to that count if it was a reasonable possibility that the injury to the eye was caused when G was acting alone, that is to say, during the first and third stages. These directions quite properly confined the jury’s consideration of the charge against M to the second stage.
In my view, it was open to the jury to exclude the throwing of the keys during the third stage as a reasonably possible cause of the injury to the eye. The jury were entitled to take into account the whole of the evidence in relation to the assault in making this assessment. The evidence of Dr Selva suggests it was no more than a bare possibility that the throwing of the keys caused the injury.
However, the evidence of what occurred before the alleged kicking requires closer scrutiny. I have summarised the evidence of Ms Giles to the effect that she saw G and Mr Green pushing and shoving each other in the first stage. She then looked away for a short time and, when she looked back towards the two, she saw M run towards Mr Green and push him in the back of the head. This was the evidence which she gave in examination-in-chief.
However, in cross-examination, Ms Giles was asked about a description of the incident which she gave in her statement to the police:
Q    Can you remember telling Constable Smart, when you were doing your statement, the following, and this is in relation to male No. 2 ‘He [M] ran at Clarence from my left-hand side and punched Clarence with a fist to the back of Clarence’s head. Clarence had his back to this male and staggered forward when he was punched. Both of the males then started to punch and kick Clarence to the head and body. Clarence was trying to defend himself by waving his arms about. They were punching him for five to 10 seconds before he fell to the ground’. Can you remember telling Officer Smart that?
A    Yes,
Q    That’s a different sequence from what you’ve given in evidence today?
A    Yes.
Q    Because what you told Officer Smart was that both of these males were kicking and punching Clarence between the first punch and before he hit the ground?
A    Yes.
Q    What version of events is correct?
A    I do remember, when I made that statement, that was actually the case, that they – with the other offender coming through with the dark hair, when he punched the back of the head I still saw arms flailing around while Clarence was still in that stand-up position, so it looked to me that he was actually getting punched before he actually fell to the ground.
The witness appeared to accept that punches were thrown before Mr Green fell down, but after M had joined in the attack. If this was so, then it was open to the jury to find that any punches by G prior to Mr Green falling to the ground took place at a time when M was a party to a joint criminal enterprise to attack Mr Green.
This is to be contrasted with the evidence of G who said that he punched Mr Green four or five times before the victim fell to the ground. G gave evidence that all but one of the punches connected. He said the punches which did connect made contact with Mr Green’s face. Mr Green dropped to the ground when the last punch was thrown. G said it was only after Mr Green had fallen to the ground that M came towards them and threatened Mr Green with a brick.
Then there is the evidence of M’s interview with the police during which he said that G punched Mr Green twice causing him to fall to the ground. It was after this that M said he became involved by picking up a brick and threatening Mr Green.
If G did punch Mr Green before M became involved, the jury would have to consider Dr Selva’s evidence that the injury to the eye was consistent with a blow from a fist or a kick. Dr Selva said neither was a more likely cause than the other. However, the jury were entitled to reject G’s evidence as well as M’s statement to the police and accept Ms Giles’ version that any punches which were thrown by G before Mr Green fell to the ground took place after M had joined in the attack and had thereby become a party to the joint criminal enterprise to assault Mr Green.
In these circumstances, I do not accept Mr Allen’s argument on behalf of M that the jury could not exclude the possibility that the injury was caused by G acting alone. Nevertheless, I have reached the conclusion that this issue was not dealt with adequately in the summing-up. It was an issue of fundamental importance to the case and required careful attention by the jury. If the jury decided that there was a joint criminal enterprise, it was essential for them to determine when it commenced. If the joint conduct commenced after G had delivered the heavy blows described in the evidence, it was open to the jury to find, as a reasonable possibility, that M’s actions were not linked to the injury relied upon by the prosecution as constituting grievous bodily harm.
The trial judge referred to the evidence on this issue which I have summarised and, earlier in his summing-up, he drew attention to the relevance of the time at which M participated in the alleged assault. However, at no stage was the evidence specifically related to the issue and the jury were not told that a decision had to be made against the background of the conflicting versions which had been given. The fact that, on three occasions in his summing-up, the trial judge referred to the second stage as the incident when both appellants were kicking Mr Green also had the potential to turn the jury’s attention away from the task of identifying with precision when the joint criminal enterprise commenced.
I am not confident that the jury were equipped to marshal the relevant evidence for themselves in order to assess this issue in a satisfactory manner.
The factual basis for conviction
The appellants complain that the trial judge erred in directing the jury that there were three possible assaults which could be used as the basis of the conviction on the second count.
I have said that the prosecution case was based on a common criminal enterprise. In the circumstances, that could only have taken place, when, according to the prosecution case, the two appellants jointly assaulted Mr Green.
If the appellant G had been charged alone, the prosecution would not have been restricted in this way; it would have been sufficient to prove that the harm to the victim was caused at some stage throughout the assault by G. However, it was appropriate that the prosecution proceed by way of a joint trial and, in view of the way in which the prosecution presented its case, it then became necessary to prove that the harm was caused in the course of the joint conduct.
The trial judge directed the jury’s attention to this requirement in the case of M and, in my view, M’s complaint on this ground of appeal is unfounded. However, in the case of G, the trial judge summed-up in such a way as to suggest to the jury that G could be convicted on any one of three bases, depending upon when the eye injury was caused. The jury were directed that the offence of self-defence would have to be considered at each of the three stages identified by the trial judge. Although it was important for the jury to consider the entire incident when having regard to self-defence, particularly the altercation between G and Mr Green in the first stage, the trial judge appears to have left it open to the jury to convict G on the basis of the facts relevant to any one of the three stages.
I have said that, in the prosecutor’s opening address, the case was presented on the basis that the grievous bodily harm occurred during the alleged assault by both appellants. However, in her closing address, the prosecutor suggested for the first time that G could be found guilty of the offence charged in the second count if the eye injury was caused by the throwing of the keys. She did not suggest that the offence took place during the first stage of the incident.
If the facts leave open the possibility of different paths to conviction, it is essential that there be clarity as to the manner in which the case is being presented and, if possible, it is important that this is made clear at the commencement of a case: Tangye (supra) at 559. Of course there will be some cases in which unexpected developments in the course of the trial render it necessary to direct on an alternate path to conviction which was not referred to in the prosecutor’s opening.
However, in my view, the decision to leave three bases for conviction open in the case of G complicated the directions to the jury and had the potential to confuse them, particularly when the essence of the prosecution case was that the offence charged in the second count had been committed during the second stage as part of a joint criminal enterprise. The requirement to direct the jury to consider self-defence at each of the three stages of the incident added to the complexity of the summing-up.
It can, perhaps, be inferred from the jury verdicts in relation to both appellants that the findings of guilt were based on the events which took place when, according to the prosecution case, both were involved in the assault during the second stage. However, the approach of the trial judge in leaving open three alternative bases upon which G could be convicted had the potential to confuse the jury.
The failure to direct on lies
The final ground of appeal argued on behalf of G complains of the failure of the trial judge to direct the jury in relation to alleged lies told by G.
It is unnecessary to consider the details of each of the alleged lies. Some of the instances involve nothing more than invitations by the prosecutor to the jury not to accept assertions made by the appellant G in evidence. As such they are not proven lies. In the other instances lies were alleged by the prosecution, but they were not of such a nature as to indicate consciousness of guilt and no such assertion was made to the jury.
The prosecution relied on some alleged lies as being relevant to credit. In my view, it would have been appropriate for the trial judge to follow the advice given by the majority of the High Court in Zoneff v The Queen (2000) 200 CLR 234 at 245 and to give a direction along the lines there suggested:
"You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt."
In the circumstances of the present case, however, I do not consider that the failure to give such a direction contributed in any way to a miscarriage of justice.
Conclusion
I have referred to the directions on the standard of proof and also expressed concern about the adequacy of the directions in relation to the commencement of the joint criminal enterprise and the apparent invitation to the jury to consider the guilt or otherwise of G by reference to each of the three stages described by the trial judge. In my view there is sufficient substance in the grounds of appeal relating to these issues to require the setting aside of the convictions recorded against both appellants.
I would allow the appeals, set aside the convictions and direct a re-trial.
DEBELLE J. I agree with the reasons for judgment of Duggan J and with the orders he proposes.
BESANKO J. In my opinion, the appeals should be allowed and the convictions should be set aside. There should be a retrial. I agree with the reasons for judgment of Duggan J.