R v Rees

[2001] NSWCCA 23

CITATION:	R v Rees [2001] NSWCCA 23 revised - 16/02/2001
FILE NUMBER(S):	CCA 60656/00; 60674/00
HEARING DATE(S):	Thursday 8 February 2001 Thursday 15 February 2001
JUDGMENT DATE:	16 February 2001
PARTIES :	Regina v Jason Lee Rees
JUDGMENT OF:	Sheller JA; Grove J at 1; Kirby J at 52

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70106/97
LOWER COURT JUDICIAL OFFICER :	Bell J

COUNSEL :	M.C. Marien (Crown) J.C. Papayanni (Appellant)
SOLICITORS:	S.E. O'Connor (Crown) Jeffreys & Associates (Appellant)
CATCHWORDS:	Criminal law and procedure - Killing in course of robbery - Joint enterprise by two offenders - Crown acceptance of plea of guilty by one of them to robbery - Separate trial of other - Directions to jury if unsatisfied which was actual assailant - Verdict of manslaughter on indictment for murder - Test of liability for manslaughter by participant in extended joint criminal enterprise - Leave to cross examine unfavourable Crown witness - Directions concerning lies - Warning concerning evidence of co-offender
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	Maxwell v The Queen 1996 184 CLR 501 R v Adam 1999 47 NSWLR 267 Graham v The Queen 1998 195 CLR 606 R v G.A.C. NSWCCA Unrep 1 April 1997 R v Fowler [2000] NSWCCA 142 R v Gee [2000] NSWCCA 198 R v Glasby [2000]NSWCCA 83 Lee v The Queen 1998 195 CLR 594 Butera v DPP (Vic) 1987 164 CLR 180 Pemble v The Queen 1971 124 CLR 107 R v Tangye 1997 92 A Crim R 546 R v Chai [2000] NSWCCA 320 R v Clough 1992 28 NSWLR 396 Wilson v The Queen 1992 174 CLR 313 DPP v Newbury 1977 AC 5000
DECISION:	Appeal allowed; New trial ordered; Crown appeal on sentence dismissed

IN THE COURT OF

CRIMINAL APPEAL

60656/00

60674/00

SHELLER JA
GROVE J
KIRBY J

Friday 16 February 2001

REGINA v JASON LEE REES

JUDGMENT

1    GROVE J : Jason Lee Rees was convicted of manslaughter following a trial before Bell J and a jury in the Supreme Court sitting at Wollongong. He was sentenced to imprisonment for a total term of four years and three months. There are appeals before the Court by the Crown seeking increase in sentence and by Rees against the conviction. Although he is respondent to the Crown appeal, it will be convenient to refer to him throughout as the appellant.

2    Some background facts and circumstances touching the course of proceedings should be sketched.

3    The victim was described as a small time drug dealer who lived alone in a unit dwelling in a Wollongong suburb. On the morning of 18 November 1997 he was found in that unit by a neighbour. He was beaten and bleeding and taken therefrom to hospital. He died on the next day. He was discovered to have multiple injuries but the direct cause of death was blunt force head injury.

4 Following investigation, the appellant and another, Mark Chipperfield, were charged with murder. Trial was scheduled to commence before Carruthers AJ on 15 June 1999. After the court assembled his Honour was informed by the Crown Prosecutor that an indictment would be presented against Chipperfield containing two counts respectively charging murder and robbery in company; that it was anticipated that Chipperfield would plead not guilty to murder but guilty to robbery and further, that, in that circumstance, the Crown would accept the latter plea in full discharge of the indictment: Maxwell v The Queen 1996 184 CLR 501. Upon Chipperfield being arraigned, the anticipation was fulfilled. His Honour was informed that it was proposed that Chipperfield be called by the Crown in the appellant’s trial. His Honour proceeded to sentence and ultimately Chipperfield was sentenced to a total of five years penal servitude with a minimum term component of three years and three months. Chipperfield did not receive discount from his sentence on account of anticipated assistance to the Crown in his evidence against the appellant. As he had been in custody since arrest on 19 November 1997, his parole eligibility date was specified as 18 February 2001.

5    After Chipperfield was sentenced the appellant was presented for trial upon an indictment containing a single count charging murder. At the conclusion of the trial the jury, being unable to reach agreement, were discharged without verdict. Carruthers AJ remanded the appellant for new trial, which took place before Bell J and jury and as I have already recorded, resulted in conviction for manslaughter. Bell J sentenced the appellant to imprisonment for four years and three months with a non parole period of three years and three months, and, noting the appellant’s custody since his arrest on 18 November 1997, specified a release eligibility date of 17 February 2001.

6    Bell J imposed sentence on the appellant on 1 September 2000. The Crown appeal alleging inadequacy was signed and lodged on 5 October and a letter of notification sent to the appellant on that day. He was formally served with the notice of appeal on 24 October. On 16 October the Criminal Appeal registry received a notice of appeal and application for leave to appeal (Criminal Appeal Rules Form IV) signed by the appellant and dated 5 October. No grounds were endorsed upon that notice and I note in passing the absence of any formal application to extend time. While the appeal was adjourned part heard this was lodged and in the circumstances, I would grant to the appellant any necessary extension to regularize the pursuit of his appeal against conviction.

7    On 11 December 2000, the appeals were given a hearing date for 8 February 2001. On that day (11 December) solicitors for the appellant filed a notice setting out a single ground of appeal. On 31 January 2001, those solicitors filed a further 10 grounds of appeal. I understand it to be common ground that the legal representatives of the appellant opposed the scheduling of the hearing of the appeal but that the fixture was given in response to Crown submissions focussed upon the impending eligibility for release of the appellant. Given the lastmentioned matter in particular, it is desirable that the appeals be heard and determined expeditiously.

8    The Crown case against the appellant was largely circumstantial. Police executing a search warrant at the appellant’s premises on 18 November 1997 noticed a Nintendo game unit which they did not at that time seize. They obviously did not appreciate its potential significance then. Two days later they returned but the unit had been sold by the appellant’s de facto wife. It was later recovered from a secondhand goods dealer and identified by a witness as that given by him to the deceased victim. There was evidence of matching DNA profile in a sample of blood taken from the victim and stain on a sports shoe belonging to the appellant. From the appellant’s garage was retrieved an orange plastic container within which was a table leg which was stained with blood of a DNA profile matching that of the deceased. This item was alleged to be the source of the blunt force injury which directly caused the death. The appellant’s motorcycle was also in the garage. There was a considerable body of evidence relating to the presence of a motorcycle in the vicinity of the victim’s premises at times pertinent to the attack upon him. There was evidence of the detection of a recently created motorcycle tyre mark nearby to the premises. Two motorcycles were described as connected with the appellant’s house, but it is unnecessary to trace all the detail of this and it suffices to observe that witnesses saw a motorcycle with two occupants at a relevant time. Attention had been drawn to it by it being involved in types of accident. The occupants were dislodged and there was a minor collision with a barrier. The occupants of the cycle were seen to have with them a piece of timber being capable of being found to be the table leg which I have mentioned was used as a weapon.

9 Chipperfield was called by the Crown. Leave to cross examine him was granted to the Crown Prosecutor pursuant to s38 of the Evidence Act. Otherwise unreferenced section numbers relate to that statute. Chipperfield claimed to have no memory of the events of 18 November 1997, no memory of going to the victim’s unit, of being on a motorcycle with the appellant, or intending to commit a robbery. He was shown a video recording of a police interview of him on 19 November 1997 but claimed that this did not refresh or stimulate any memory. The recording was admitted into evidence. Therein Chipperfield admitted that he went to the victim’s premises in company with the appellant; that they had travelled together on the appellant’s motorcycle; and that there had been an incident near a service station when the cycle “slipped”. He asserted that at the premises he had sought to obtain some drug from the victim (“part with your pot”) and asserted that the appellant attacked the victim with a piece of wood and it was also the appellant who took the Nintendo game from the apartment.

10    The appellant gave evidence. He denied being at the victim’s unit on 18 November at all, although he acknowledged that he had been there twice on the previous day, on both occasions sharing a bong of marijuana with the victim. He was in the company of Chipperfield for a time on 18 November and he described incidents concerning the motorcycle which were broadly consistent with some observations made by various witnesses, but he said that he noticed that Chipperfield at one point of time had a table leg in his possession. The appellant denied that he ever had possession of that item.

11    A provisional view on a matter of challenge to her Honour’s directions to the jury was indicated to the parties, however as there is an issue as to whether a new trial should be ordered it is requisite to deal with the other grounds.

12    I turn to the grounds of appeal lodged by the appellant. I shall set them out as expressed and where they appear to be allied it will be convenient to deal with them together.

GROUND 1

1. The learned trial judge erred in granting the Crown leave to cross examine the witness Mark Chipperfield pursuant to the provisions of section 38 of the Evidence Act 1995: R v Adam (1999 47 NSWLR 267).

GROUND 6

6. (i) Her Honour erred in law in admitting the ERISP of Chipperfield (ex BB) and the transcript of the ERISP (ex CC);
(ii) if admissible Her Honour failed to direct the jury properly or adequately as to the use to be made of this evidence.

13 I record that a written submission on behalf of the appellant contended that the ground raised an issue identical to one decided in R v Adam 1999 47 NSWLR 267 in respect of which, pursuant to grant of special leave, further argument in the High Court of Australia is scheduled for 30 March next. It was submitted that this appeal should be adjourned until after judgment in that case. Nevertheless the ground was addressed in the appellant’s submissions. I interpolate that counsel appearing for the appellant at trial (who did not appear in the appeal) pointed out that in the absence of prior inconsistent statement, the instant case was different from Adam (T252). However, a comment by her Honour that it was somewhat like Adam in that the Crown was seeking to call Chipperfield in order to place some of the content of his police evidence before the jury elicited an affirmation from the Crown Prosecutor. I note that the particular Crown Prosecutor had not prosecuted the inconclusive trial before Carruthers AJ nor did she appear in the appeal.

14    Following intimation of the Crown’s intention to call Chipperfield he was required to give evidence in a voir dire hearing conducted by her Honour. His evidence followed the pattern of that which I have recorded him as giving at the trial, in short, total memory loss for any relevant events. It appears as common ground that his testimony, such as it was, was to similar effect when he was called in the trial presided over by Carruthers AJ.

15    Bell J ruled against applications by the appellant that Chipperfield’s evidence be excluded either as an abuse of process or in the exercise of her discretion. She foreshadowed that, in the event that the circumstances reached the appropriate point, she would grant leave to the Crown to cross examine Chipperfield. Later she published written reasons for her rulings.

16 Two findings by her Honour should be noted. First, that Chipperfield’s claim of memory loss was unworthy of belief and second, that his statements to the police at interview within less than a day and a half of the killing were fresh in his memory in the sense of s66(2): Graham v The Queen 1998 195 CLR 606.

17 In support of ground 1 counsel for the appellant repeated, with some elaboration, the arguments rejected by this Court in Adam noting that, pursuant to the grant of special leave the challenge was currently before the High Court. Given the particular circumstances of the Crown appeal asserting inadequacy of sentence subject to which the appellant is due for release within days, adjournment would be undesirable. Insofar as it was held in Adam that the credibility provisions of Part 3.7 of the Evidence Act were not pertinent to the grant of leave to cross examine an unfavourable witness pursuant to s38, the previous decision of this Court in R v GAC unreported 1 April 1997 was then applied and has continued to be applied in subsequent cases: R v Fowler (2000) NSWCCA 142; R v Gee (2000) NSWCCA 198; R v Glasby (2000) NSWCCA 83.

18    In any event it can be noted that her Honour’s express finding that the prior representations by Chipperfield were fresh in his memory at the time of their being made is distinguishable from the factual matrix in Adam. Further, I perceive no error in her Honour’s acceptance of the Crown purpose in the tender of the prior inconsistent (in the sense that he now claimed a memory extinction) statement of Chipperfield was relevant not only to his credibility but also as evidence of the facts asserted. The latter is not a hearsay purpose.

19 Counsel referred to Lee v The Queen 1998 195 CLR 594 which held that an out of court statement which was itself a report of what another had said in proof of the truth of the content of the report was not authorized by s60. In the present case Chipperfield’s representations to the interrogating police upon which reliance was placed by the prosecution described original observations of activity by the appellant (and himself) and did not consist of mere reportage of what the appellant had told him. The stated object of a major change to previous law in permitting prior (consistent or inconsistent) statements to be available as evidence of the matters therein (Australian Law Reform Commission Report No 26) has been achieved by the legislation.

20 However it was further argued that the concession by Chipperfield that he had in fact been interviewed resulted in the non fulfilment of a requirement of s43(2) and it was therefore erroneous to give leave pursuant to s38. For at least two reasons the submission must be rejected. Chipperfield conceded that he had made a statement by his acknowledgment that he had been interviewed but s43(2) refers to refusal to admit the making of an inconsistent statement. The claim of total memory loss does not constitute an admission of making such a prior inconsistent statement. It is necessary for the statement to have quality. Second, subsections 1(a) (b) and (c) of s38 are disjunctively expressed and it is only s38(1)(c) which refers in terms to a prior inconsistent statement.

21 Her Honour did not err in permitting cross examination of Chipperfield. Nor did she err in admitting the video recording of the police interview and subject to the requisite caution (Butera v D.P.P. (Vic) 1987 164 CLR 180) the transcript of the sound track. In confirmation of the distinction between the present case and the facts in Lee, her Honour directed the jury that the Crown relied upon two matters articulated in Chipperfield’s interview: the presence of the appellant at the victim’s premises and their both being mounted on the motorcycle during a journey between a service station and those premises. Her Honour’s instructions to the jury were both proper and adequate.

GROUNDS 2 to 5

2. Her Honour the trial judge erred in law in leaving and putting manslaughter to the jury.

3. Her Honour erred in law in directing and failing to direct the jury as to armed robbery.

4. Her Honour erred in law in directing and failing to direct the jury as to the joint enterprise and/or common purpose.

5. Her Honour erred in law in directing and failing to direct the jury as to manslaughter.

22 The Crown case, as is manifest in the indictment, alleged that the appellant was guilty of murder. Of that he stands acquitted and it is important to focus directly upon the crime of manslaughter for which he was convicted. It was complained that neither the Crown nor counsel for the defence at trial sought that the possibility of conviction for manslaughter be left to the jury. However it is well established that the course taken by the defence does not relieve a judge from putting any matters upon which they might find for an accused: Pemble v The Queen 1971 124 CLR 107. The principle extends to the possibility of finding an accused guilty of a lesser crime which is an available alternative to that charged in an indictment.

23    The directions to the jury by Bell J were, of course, initially directed to the charge of murder and her oral charge was supplemented by written instruction. It is convenient to extract these instructions in which the basis upon which consideration of manslaughter was invited can be discerned.

24    The direction was in these terms:

“The Crown will prove the accused guilty of murder if and only if it proves the following beyond reasonable doubt:
1. David Palin died as a result of injuries inflicted on him at his home on the morning of 18 November 1997; and
2. The accused was a party to a joint criminal enterprise with Mark Chipperfield to rob David Palin while they were armed with a wooden table leg; and
3. The accused was present when the injuries were inflicted upon David Palin; and either
4. The accused struck David Palin intending to kill him or to do him grievous bodily harm (grievous bodily harm means really serious bodily injury); or
5. Mark Chipperfield struck David Palin intending to kill him or to do him grievous bodily harm and that the accused realised that it was possible that in the course of carrying out the robbery Chipperfield might intentionally inflict grievous bodily harm on David Palin.
In the event that the Crown proves beyond reasonable doubt the above elements the accused is guilty of murder.
If the Crown fails to prove beyond reasonable doubt the matters set out in paragraphs 1, 2 and 3 the accused is not guilty of murder. You go no further.
If the Crown proves each of the matters set out in paragraphs 1, 2 and 3 but fails to satisfy you beyond reasonable doubt either that the accused struck the deceased intending to do him grievous bodily harm (paragraph 4) or that he realised that as a possible incident of carrying out the joint criminal enterprise grievous bodily harm might be intentionally inflicted (paragraph 5), you would go on to consider the alternative charge of manslaughter.
In such a case you must consider whether the Crown has proved beyond reasonable doubt that the accused realised that a possible incident of carrying out the armed robbery was that some harm might be occasioned to David Palin being something more than trivial harm although less than really serious bodily injury. In the event that you were so satisfied (and only provided you were satisfied that the Crown had proved each of the matters set out in paragraphs 1, 2 and 3 and that either the accused or Mark Chipperfield struck the deceased causing the injuries) the accused is guilty of manslaughter. If the Crown fails to so satisfy you the accused is not guilty.

In the event that the Crown fails to satisfy you that the injuries were inflicted on the deceased by a person who thereby intended to kill or to do grievous bodily harm to him the accused is not guilty of murder. In this case you go on to consider whether he is guilty of manslaughter. In such a case if the Crown has proved beyond reasonable doubt that the accused realised that it was possible that some harm might be occasioned to David Palin being something more than trivial harm (and only provided you were satisfied that the Crown had proved each of the matters set out in paragraphs 1, 2 and 3 and that either the accused or Mark Chipperfield struck the deceased causing the injuries) the accused is guilty of manslaughter. If the Crown fails to so satisfy you the accused is not guilty.”

25 It can be concluded that the jury made the essential finding that the appellant was a party to a joint criminal enterprise with Chipperfield to commit robbery whilst armed with the table leg. Assuming the killing to be felonious, that crime was incidental to the common purpose and if the jury were not satisfied that the appellant was the actual assailant and unable to be satisfied as to which of the appellant and Chipperfield was the assailant, the appellant’s liability arose out of the commission of this incidental crime to the enterprise of robbery conveniently categorized in cases such as R v Tangye 1997 92 A Crim R 546 and R v Chai (2000) NSWCCA 320 as participation in an “extended joint criminal enterprise”. It was therefore not inappropriate for the jury to be directed to approach the matter in accordance with developed principles relevant to common purpose: contrast R v Clough 1992 28 NSWLR 396.

26    At the hearing of the appeal investigation was directed to consideration of whether there was error in leaving to the jury the possibility of conviction for manslaughter on the basis that the knowledge of the appellant was no more than a realization that in carrying out the armed robbery some harm might be occasioned to the victim, being something more than trivial but less than really serious bodily injury.

27    The contemplation of these directions was raised in discussion with counsel after the close of the evidence but before her Honour’s summing up. The exchange was relatively short and, as transcribed, was as follows:

“HER HONOUR: Can I take up the further directions because it seems to me that I must also direct them that in the event that the Crown failed to satisfy the jury beyond a reasonable doubt that the accused realised that as a possible incident of carrying out the common purpose grievous bodily harm might intentionally be inflicted they would need to consider the alternative charge of manslaughter and in that case if the Crown had proved beyond reasonable doubt that the accused realised that a possible incident of carrying out the armed robbery was that some harm might be occasioned to David Palin being something more than trivial harm although less than really serious bodily injury and in the event that they were satisfied as to the existence of the common purpose the presence of the accused at the scene then they might return a verdict of manslaughter.
Similarly it seems to me if the Crown failed to satisfy them that any of the blows inflicted on Mr Palin were inflicted by either man with an intention to do grievous bodily harm then provided the Crown had proved the other ingredients, the common purpose, the presence of the accused at the scene and the striking by one or other of them, and provided that the accused realised that it was possible that some harm might be occasioned to Mr Palin being something more than trivial harm then again he would be guilty of manslaughter.
SPENCER: I need to take that in your Honour. I must say I hadn’t given manslaughter a lot of thought. I know you have to put it. My case is obviously not of manslaughter.
HER HONOUR: I understand that, Mr Spencer, but it does seem to me that it should be in both instances put. Madam Crown, do you wish to be heard on that?
CROWN PROSECUTOR: I don’t wish to be heard. It is very difficult. I don’t think I could argue against it at all your Honour.
HER HONOUR: Yes. It seems to me that it is a conceivable view of the evidence. Certainly the first alternative that I would put, namely, that the accused had not realised the possibility of the deliberate or the intentional infliction of GBH. In the light of the extensive nature of the injuries suffered it might be thought rather less available for a jury to consider manslaughter on the basis of a lack of satisfaction of the intentional infliction of GBH by either, but it seems to me wise to leave it. Are there any other matters then? You are ready, Madam Crown?”

28    Thereafter, as I have recorded, the charge to the jury was supplemented by the written direction. No objection to this direction was taken and specifically no objection was taken to the direction concerning the level of knowledge to be possessed by the appellant in order to found his liability for manslaughter.

29    Counsel for the appellant in this Court commented that, given the evidence of the extent of the victim’s injuries, it could not realistically be argued that the perpetrator other than intended to inflict grievous bodily harm. The comment was justified. It follows that the jury were not satisfied that the appellant was the perpetrator because, if they were, conviction for murder would have been inevitable. The remaining issue therefore is, it not being established beyond reasonable doubt that the appellant was the perpetrator, whether he is liable for manslaughter because being a participant in a joint enterprise to rob, someone committed an incidental criminal killing, he having anticipated, not the grievous bodily harm which in fact was inflicted, but some harm less than that but more than trivial.

30 The expression of the standard of knowledge so limited is consistent with language affirmed in England in Director of Public Prosecutions v Newbury 1977 AC 500 in relation to liability for manslaughter by an unlawful and dangerous act. However in Newbury the House of Lords maintained an objective test, namely whether sober and reasonable people would recognize an act as dangerous in the sense of carrying with it the risk of some harm whether or not the accused recognized its danger. That standard was rejected in Australia by the majority judgment in Wilson v The Queen 1992 174 CLR 313, and a test of an appreciable risk of serious injury was laid down. The doctrine which supported the category which had come to be known as battery manslaughter was also disapproved. In dealing with it their Honours remarked that that idea did nothing to advance the law in what is, in any event, a somewhat clouded area. The current issues offer endorsement of the latter observation.

31    The question arises whether it was correct to invite a test requiring a different and lesser standard from Wilson giving rise to a liability for manslaughter (recognizing that the liability is not alleged to derive from the appellant himself engaging in an unlawful and dangerous act by striking the victim). Second, if such a test is appropriate, can it be applied subjectively as her Honour’s written direction to the jury invited.

32    I consider that the first question should be answered in the negative. No authority directly in point has been cited but I am unable to discern any reason for application of a standard in these circumstances different from that authorized by Wilson.

33    The aptness of the Wilson test to the present circumstances was tacitly acknowledged in written submissions by the Crown which included:

“28. Her Honour directed the jury that the contemplated harm must be ‘something more than trivial harm although less than really serious bodily harm’. The Crown submits that the direction met the test referred to in Wilson v The Queen (1992) 174 CLR 313 that the contemplated act carries with it an appreciable risk of serious injury. The direction given by her Honour clearly conveyed that to the jury.”

I regret that I am unable to assess the expressions as interchangeable.

34    I recognize that Wilson dealt with involuntary manslaughter and laid down that it was limited to the categories of unlawful and dangerous act on the one hand and criminal negligence on the other. In my opinion, criminal liability for the same crime deriving from participation in an extended joint criminal enterprise cannot be based upon a different and lower standard.

35    The answer to the second question which I have posed will require analysis of complex matters touching upon not only an objective standard for liability but the requirement of proof by the Crown of the extent of knowledge of the participant in a joint enterprise and the relationship between those two matters. As I have said when setting out the history of the trials of the appellant there are compelling circumstances requiring that this appeal be determined without further delay. Given the view which I have formed of the failure to leave the issue of manslaughter to the jury in accordance with the Wilson test it is unnecessary to decide the second question and I would reserve my opinion upon it.

GROUND 7

Her Honour erred in law in directing and failing to direct as to lies.

36    Insofar as this ground asserts her Honour failed to give a direction concerning lies it is a mis-statement and her directions on the subject are revealed in the transcription of her charge to the jury. At trial, her Honour’s intention to give the jury directions concerning the telling of lies by the appellant was canvassed prior to commencing her summing up and after the directions were in fact given, no redirections were sought by trial counsel who was clearly alert to protect the appellant’s interests in this regard.

37    It is unnecessary to reproduce her Honour’s directions in this regard. It suffices to say that she correctly directed the jury on the pre-conditions which needed to be met. Some submissions have been made as to the capacity of lies on two aspects being material issues. These are the lies told by the applicant in relation to the false alibi and the presence of the appellant upon his motorcycle in particular circumstances on the morning of 18 November. I would reject the submissions that her Honour erred in either of these regards.

38    A submission was made that her Honour had reversed the onus of proof in respect of the second matter which I have mentioned when she said:

“Again, you may think there is some difficulty in concluding they related to a material issue. With respect to the account that it was Chipperfield who had the bike that morning the accused in his evidence says he wanted to distance himself from any trouble arising out of the incident at the Ampol Service Station and that is why he told a lie to the police. If you accept that then, plainly enough, it would not be evidence of its (of) his consciousness of guilt with the offence with which he is charged.”

39    The Crown has pointed out that the use of the introductory word “again” is difficult to place in context but this does not seem to be any consequence. Her Honour had emphatically directed the jury, on more than one occasion, that it was the Crown who had to prove the matters upon which it relied and in the absence of any complaint from counsel at trial I am unprepared to extract the few words out of the context and conclude that the jury might have understood that it was the accused who had to sustain his explanation as to why he told a lie to police.

GROUND 8

Her Honour erred in law in directing and failing to direct the jury as to the evidence of Chipperfield as to unreliability and as an accomplice.

40    Her Honour gave warnings to the jury about the evidence of Chipperfield in accordance with s165. She expressly warned the jury that his evidence may be unreliable and that they should scrutinize it with care. She explained to the jury that the warning was given because he was a person who might reasonably be supposed to have been involved in the fatal attack upon the deceased. Insofar as the matters are also sought to be raised, it can be observed that her Honour added to the warnings reference to the contents of the interview of Chipperfield being hearsay and not subjected to cross examination.

41    Trial counsel sought no redirections or supplementary directions.

GROUND 9

Her Honour erred in law in admitting the evidence of the ERISP of the appellant.

42    Objection was taken at trial to the admission of this material on the basis that the appellant was affected by drugs which he had ingested and, second, on the basis that the police had acted improperly in persisting to interview him after he had indicated that he did not wish to speak further.

43    On this issue her Honour had taken evidence on voir dire and it was her finding that in fact the ingestion of drugs by the appellant was such that it was unlikely that the truth of any admissions was adversely affected. That finding has not been shown to be wrong. The admissions were not of course confessional but related to statements made by the appellant which were relied upon by the Crown because in part it betrayed a detailed knowledge of the circumstances of the offence and otherwise he sought to raise an alibi which the Crown was seeking to demonstrate was false.

44    It was a finding of her Honour that the continuation of questioning after the appellant indicated that he wished to see a solicitor was not, in the circumstances, unfair. Her Honour did not find that there was intimidation, importuning or sustained or undue pressure. Her finding has not been demonstrated to be wrong.

GROUNDS 10 and 11

Her Honour erred in law in not putting the accused’s case as an entity (entirety?) and failing to put the facts adequately or properly as to the elements of the offence of armed robbery and/or manslaughter.
There has been a miscarriage of justice in that, the verdict of the jury is unsafe and unsatisfactory as it was not, upon the whole of the evidence, open for the jury to be satisfied beyond reasonable doubt that the accused was guilty.

45    There was abundant evidence to sustain the finding that the appellant was a participant in a joint enterprise to rob the victim, in the course of which he was fatally beaten. The appellant’s case was that he was not there at all. The complaint that her Honour failed to adequately put his case cannot be sustained. Save the direction relating to the elements of manslaughter, I am unpersuaded that the verdict was unreasonable or cannot be supported having regard to the evidence.

46 This leads to determination of the outcome of the appeal. I have already set out the details of the seemingly incongruous position in which the Crown found itself having given Chipperfield the opportunity to plead guilty to robbery in discharge of an indictment for murder and then conducting a case against his alleged co-offender on the basis that either that co-offender or Chipperfield was the perpetrator of the killing. Both the appellant and Chipperfield had significant prior records and I have observed that Chipperfield received a longer overall sentence for robbery than the appellant received for manslaughter, although the minimum term/non parole specifications in each case for the respective crimes was identical. They are eligible for release on succeeding days. In a broad sense of distributive justice it could be argued to be appropriate that substantially equivalent terms be served by both of them. However, dismissal of the appeal by the appellant would result in there remaining upon his record conviction for manslaughter and although the evidence of his participation in the robbery is overwhelming there is no power to substitute a conviction for robbery (similar to that imposed upon Chipperfield) in this Court. The misdirection related to a matter of substance and although no point was taken at trial, it would be inappropriate to apply Rule 4 of the Criminal Appeal Rules. Regrettable though I consider it is in the whole of the circumstances, I conclude that the appeal should be allowed.

47    A submission was received that, in the event of the appeal being allowed, a verdict and judgment of acquittal should be entered. It was argued that there was no basis upon which manslaughter could be left to the jury at all and a number of postulations were offered about what might have been the situation given the jury’s findings. I reject the contention that the only available alternatives were conviction of murder or acquittal.

48    The ground upon which the appellant will succeed relates to misdirection, following the subject being expressly raised by the learned trial judge and upon which it appears that trial counsel were content. I am conscious that, if it is ultimately determined to be held, it would be a third trial of the appellant, however in all the circumstances I would exercise discretion to make the order.

49    The consequence of allowing the appeal is that the Crown appeal asserting inadequacy of sentence becomes technically otiose. It must therefore be dismissed.

50    I propose the following formal orders:

The Appellant’s appeal

1. Time for lodging appeal extended as necessary.
2. Appeal allowed.
3. Conviction and sentence quashed.
4. New trial ordered.

Crown appeal

1. Appeal dismissed.

51    I am authorized by Sheller JA to say that he agrees with my judgment and the orders proposed.

52    KIRBY J: I also agree.

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