R v Shield

[1999] QCA 469

SUPREME COURT OF QUEENSLAND

CITATION:	R v Shield [1999] QCA 469
PARTIES:	R v SHIELD, Shane Arthur (Appellant)
FILE NO/S:	CA No 163 of 1999 SC No 478 of 1997
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against conviction
ORIGINATING  COURT:	Supreme Court at Brisbane
DELIVERED ON:	9 November 1999
DELIVERED AT:	Brisbane
HEARING DATE:	24 August 1999
JUDGES:	Pincus and Thomas JJA and Chesterman J
ORDER:	Appeal against conviction dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – murder in course of burglary and armed robbery – whether appellant one of the three intruders
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – GENERAL MATTERS – murder in course of burglary and armed robbery – whether trial judge misdirected the jury in relation to the combined operation of s 8 and s 302(1)(b) of the Criminal Code 1899 – R v Brien & Paterson [1999] 1 Qd R 633 applied
Criminal Code 1899 s 8, s 302(1) R v Barlow (1997) 188 CLR 1, considered R v Brien & Paterson [1999] 1 Qd R 634, applied
COUNSEL:	Mr A Rafter for the appellant
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent

1. PINCUS JA: The circumstances giving rise to this appeal are set out in the reasons of Thomas JA. I agree with his Honour's conclusion that it was open to the jury to convict on the evidence presented and also agree with the reasons given for that conclusion.

2. The more difficult point in the case is the complaint about the judge's directions on s 8 and s 302(1)(b) of the Code. The task of giving such directions presents particular difficulty, since each provision is to some extent similar in concept to the other. The substantial criticisms which Mr Rafter, on behalf of the appellant, made of those directions were two. First, it was argued that the directions were erroneous in that the judge should have said, but did not say, that what the principal offender Fitzgerald did had to be done in the prosecution of the unlawful purpose relied on by the Crown, if a verdict of murder was to be reached. Her Honour invited the jury to consider whether Fitzgerald did an act likely to endanger human life, that being the test set out in the latter part of s 302(1)(b), but did not say that the act had to be done in the prosecution of an unlawful purpose. In the part of the summing-up complained of by Mr Rafter the second question posed for the jury was " … did Alexandra Doran's death occur in carrying out that plan?". The words "that plan" referred back to the intention to go to Street's house to carry out a housebreaking, referred to in the previous sentence. What the jury had to consider, among other things, was whether the death of Ms Doran in the way set out in s 302(1)(b) resulted from the carrying out of the common unlawful intention. So, the argument for the appellant ran, it was not enough for them merely to think about whether the death occurred in carrying out the common intention.

3. The criticism is in my opinion accurate; but it could only have affected the jury's consideration of the case if there was a possibility of their concluding that the death occurred in the prosecution of the purpose but that, considered as a death caused by an act likely to endanger life, it did not. There is not, in my view, any rational basis in the evidence for such a distinction and so there was no substantial miscarriage of justice.

4. The second substantial criticism made was that the judge did not, in the passage set out as para 30 of the reasons of Thomas JA, tell the jury that all the elements of s 302(1)(b) had to be a probable consequence of the prosecution of the purpose. Consideration of this point requires some reference to what was held in Barlow (1997) 188 CLR 1. After referring to the circumstances of, result of, and state of mind accompanying the principal offender's act the principal set of reasons went on:

   "Those circumstances, that result and that state of mind are factors which, either together or separately but in combination with a proscribed act or omission, define an offence of a particular 'nature'. Thus the unlawful striking of a blow by a principal offender will constitute an offence the nature of which depends on whether the blow causes bodily harm or grievous bodily harm or death and on the specific intent with which the blow is inflicted". (10)

   A similar idea is conveyed by the discussion lower down on the same page, beginning with the words, "Was the nature of the blow . . .". The result is that the secondary offender is liable only to the extent that the nature of the offence, analysed in the way the High Court indicates, was a probable consequence of the prosecution of the common unlawful purpose. For example, if a blow is struck by the principal offender which causes grievous bodily harm, the secondary offender might be liable only as for common assault, on the basis that the striking of a blow, but not the grievous bodily harm, was a probable consequence of the prosecution of the purpose.

5. So it was not quite right to sum up on the basis that the question was whether Ms Doran's death was a probable consequence of carrying out the burglary and robbery; the question was whether death caused in the circumstances set out in s 302(1)(b) was a probable consequence. In a practical sense, the only difficulty is the requirement that the act be "of such a nature as to be likely to endanger human life". In theory perhaps one could say that the jury might have been satisfied that the death was a probable consequence of the carrying out of the purpose, but not satisfied that death caused by an act likely to endanger human life was a probable consequence. But the point is, in the circumstances of the present case, too fine to enable one sensibly to conclude that there has been a miscarriage of justice.

6. One can understand a trial judge's attempting to simplify the issues for the jury, in such a case as this; the operation of s 8, as explained in Barlow, is rather complex and that complexity is added to when one has to apply it to a s 302(1)(b) case. Although doing so will not necessarily make the jury's task easy, it seems safer to tell the jury in detail how s 8 operates on s 302(1)(b).

7. I agree with Thomas JA that the appeal should be dismissed.

8. THOMAS JA: The appellant was convicted of offences of murder, burglary and armed robbery in company with personal violence.

9. The Crown case was that the appellant was one of three intruders who broke and entered a house at Vulture Street, East Brisbane. All three wore balaclavas and one was armed with a cut down "under and over" shotgun. The house was occupied by the owner (Larry Street) and two other persons, Michael Turner and Alexandra Doran. Demands were made for marijuana, and a small plastic bag was given to one of the masked intruders. Larry Street was then beaten into unconsciousness. The other two occupants were kept under guard in the lounge room. When Alexandra Dorin yelled and screamed, one of the intruders went over to her, pointed the shotgun at her and said "See this", to which she replied "Piss off". He shoved the gun towards her head where it discharged, killing her. Persons living in nearby houses saw three persons run from the scene of the crime, get into an old Commodore sedan and depart.

10. The grounds of appeal include the allegation that the verdicts are:

    (a)         unreasonable

    (b)        against the weight of evidence

    (c)         unsafe and unsatisfactory.

    The ground principally argued was that the jury's verdicts were unreasonable or cannot be supported as the evidence did not sufficiently prove that the appellant was one of the three intruders. The appellant was also granted leave to add a further ground - "the learned trial judge misdirected the jury in relation to the combined operation of s 8 and s 302 (1)(b) of the Criminal Code".

11. The evidence capable of proving that the appellant was one of the intruders includes the evidence of the appellant's colleague Nicole Graham. Shortly stated her evidence is to the effect that the appellant was involved in the planning of this robbery, that he produced a shotgun, and departed with his female companion Michelle Davison and a man named Fitzgerald in a blue Commodore vehicle. They returned in the same vehicle some time later in a disturbed condition. She heard the appellant make statements that the police had nothing and that they couldn't prove anything. There was some evidence of physical descriptions of the three intruders who entered and later left Street's house, although these are descriptions of persons wearing disguises. There is also evidence that the intruders were seen to depart the scene in a Commodore vehicle.

12. To mention the evidence in slightly more detail, in January 1997 the witness Nicole Graham was living in a unit at Highgate Hill with Fitzgerald. In that unit there was an "under and over" shotgun. It had two barrels, one on top of the other, and two triggers, one in front of the other. On the day of the incident, 25 January 1997, Graham and Fitzgerald were joined in the unit by the appellant, his girlfriend Michelle Davison, and Kye Clements. Davison's blue Commodore was at the unit. It had been driven there by the appellant. Drugs had been consumed and conversation turned to ways of acquiring more drugs. Davison nominated an address in East Brisbane where she used to live which was occupied by a person called "Larry" (who on the Crown case was Mr Street) as a place where drugs and money could probably be obtained. Fitzgerald and the appellant looked very interested. Later the appellant returned to the room with the shotgun cut down to half its former size.

13. Fitzgerald opened the shotgun and Graham saw a shell inside it. Around 10 pm Fitzgerald came to Graham's bedroom and told her "we'll be back soon". She heard the voices of Fitzgerald, the appellant and Kye Clements from the stairwell and the sound of a car departing. She and Michelle Davison remained in the unit. After an hour to an hour and a half she heard the car return and the voices of the appellant, Fitzgerald and Clements talking frantically. Fitzgerald came into the bedroom wearing only his underpants and was wet with sweat. The appellant was arguing with Michelle Davison and refusing to tell her what had happened. Most of the talking was done by the appellant who was trying to reassure Fitzgerald that the police had nothing, that "they couldn't prove anything and everything would be okay if we all kept our mouths shut" and so on.

14. Some marijuana in a clipseal bag had been brought back from the excursion in the car. This and some heroin were then consumed. Clements left. Then the appellant, Fitzgerald, Graham and Davison drove away in the Commodore. The vehicle was intercepted by police on account of road unworthiness at about 1.30 am, but the occupants were not detained.

15. The evidence concerning the commission of the crimes in the house at Vulture Street are that at the relevant time the house was visited by three persons wearing balaclavas who demanded drugs. One of them was armed with a cut-down under and over shotgun. A small quantity of marijuana in a small plastic bag was given to one of the intruders. Violence ensued, including the killing of Alexandra Doran. Three persons were seen to run from the scene, get into an old Commodore and drive off.

16. The main challenge to the adequacy of the evidence relates to descriptions and estimates of height given by persons who had limited opportunity to make such assessments.

17. Fitzgerald was convicted of murder after a separate trial, and, on the Crown case, was the intruder who actually shot the deceased.

18. The physical descriptions of the intruders were from Mr Street and from three neighbours who lived in other addresses from which they made limited observations of the entry or departure of the intruders. Mr Street, who was 5' 112" tall, said that the person with the shotgun was about his height, that one was taller and another shorter than him. He had met the appellant on a previous occasion and described him as "very short". As to the shorter person, Mr Street said "I never stood anywhere near them so I can't really say. I could see the person was shorter than the average height but I wouldn't be able to say that they were 5' 2 or 5'3 or 5'4 or whatever". The shorter person appeared to have long dark curly hair protruding from below the balaclava. The hair "may have been" coarse, wavy hair. Mr Street thought that one of the offenders could have been a female.

19. The observations of the neighbours were of persons moving at some distance at night- time. The first of the neighbours saw only one person clearly and assumed that person to be a male although that person may have been a woman. She thought that that person was of average height. The second neighbour thought that all three were male although one could have been a woman. Two of them were about 6 ft tall and the third about 5'10 or 5'11. The third neighbour described one person as above 6ft, another as about 6ft and another as a little less than 6ft. She thought all three were male but that one or even two of them could have been female.

20. At the time of his arrest (11 days after the killing) the appellant did not have long curly dark hair, but had blonde-brown collar length hair. As at January 1997 Nicole Graham had shoulder length dark curly hair which she often wore down.

21. One of the neighbours observed the three intruders enter an old model Commodore sedan. She could not make out its colour but thought it was dark and could have been green. She said it had a black plastic external louvre attached to the rear window and that the brake lights and reverse lights worked. There was evidence that Davison's blue Commodore vehicle was sold in early February 1997, and that at that time it did not have a louvre attached to the rear window. There was also evidence that the tail light of that Commodore was not operating at 1 a.m. on 26 January 1997 when police officers intercepted it in relation to the traffic matter.

22. This was not a case where evidence of identification was essential in order to link the offender to the crime. Provided that the evidence of Nicole Graham could reasonably be accepted, there was a strong circumstantial case that the appellant was one of the offenders. The discrepancies in the descriptions given by Mr Street and the neighbours are not such as to cause concern in the strength of that overall case, which was not contradicted by any defence evidence. The observations of those persons were limited and difficult, and it is not surprising that some error might be involved in them. These matters were not sufficient to negate any inference which might otherwise be drawn from the other evidence that was given. Furthermore, the observation of the departure of the offenders in a Commodore sedan adds support to the Crown case. The variations in detail concerning the car observed by the third neighbour are explicable and do not necessarily detract from the additional support that this evidence provides.

23. There is no complaint in relation to the summing-up except on the ground that has been raised by amendment. Subject then to consideration of the adequacy of the summing-up on that point, I see no ground for thinking that the conviction was unsafe or unsatisfactory or that the verdict of the jury was unreasonable.

24. The Crown case of murder was based on s 8 and s 302(1)(b) of the Code. The difficulties involved in the combination of these two sections have been recognised in previous cases, and the correct approach has been identified in R v Brien & Paterson[1]. In the judgment of Pincus JA, with whom Williams J agreed, the following appears:

    "where the principal offender is said to be guilty of committing the offence of unlawful killing by causing death by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life, the first question is whether this has been proved - did the principal offender, whether identified or not, do this? Then as to any secondary offender, the question is to what extent the act done - unlawful killing in the way just mentioned - was a probable consequence of the parties' common unlawful purpose"[2].

    [1] [1999] 1 Qd R 634 at 645-647.

    [2] Ibid at 645-646.

25. The directions of the learned trial judge were tailored to meet the facts of the case. In particular the Crown case was that Fitzgerald was the person who fired the gun and that the appellant was one of the other participants. In short the case against the appellant was that at this trial it was proved that the primary offender, Fitzgerald, was guilty of murder, and that the appellant was guilty as a secondary offender.

26. The learned trial judge's directions included the following:

    "The first thing you must be satisfied about beyond reasonable doubt is that there was a common intention amongst those who were concerned, two or more persons".

    (Her Honour then gave instructions on the question of common purpose, with particular
    reference to the facts of the present case, as to which no objection is raised).

    "The second thing that you must be satisfied about is whether it was to carry out an unlawful purpose. There really isn't any doubt that such a plan was an unlawful plan, an unlawful purpose.

    The third thing to consider is whether the death of Alexandra Doran occurred in the course of carrying out that unlawful purpose. The unlawful purpose was the home invasion and the robbery.

    The fourth thing you need to be satisfied about beyond reasonable doubt was whether there was an act done by one of them that was likely to endanger human life. You have to decide whether Darren Fitzgerald did an act which was likely to endanger human life which caused Alexandra Doran's death. It is for you to decide what the act was, but might I suggest that the act might be holding a loaded gun near Miss Doran's head, or it might be squeezing the trigger when the gun was in such a position. You must also be satisfied that an ordinary person in the position of Darren Fitzgerald would reasonably have foreseen death as a possible outcome."

27. The last sentence puts to the jury the means of negating a defence of accident that otherwise might be said to arise in Fitzgerald's favour under s 23. Plainly the above directions adequately meet the first of the requirements set out in the passage quoted above from R v Brien & Patterson.

28. Her Honour then continued:

    "The fifth thing that you should consider is the probable consequence of the unlawful purpose; that is the housebreaking. You need to consider whether the nature of the killing was such that the fact of its occurrence was a probable consequence of carrying out the unlawful purpose of the housebreaking or burglary and robbery.

    Now, this is what is called an objective test; that is, not what the perpetrators thought might happen, but what a reasonable person, knowing all the facts, might foresee, namely, that there was a real or substantial chance that death would ensue when they set out to carry out this unlawful purpose".

    Her Honour then mentioned some of the evidence concerning the gun and the appellant's knowledge of it, and correctly advised the jury that they might think its use was part of the plan.

29. In context, the reference to "the nature of the killing" could not have been understood to refer to anything else other than the acts of Fitzgerald in discharging the weapon in the circumstances accepted by the jury. In my view the above passage sufficiently meets the requirements of the second sentence of the quoted extract from R v Brien & Patterson.

1. The difficulty in the present case arises from a later passage in the summing-up in which her Honour again mentioned those issues "more briefly" suggesting to the jury that they might find it convenient "to jot them down as five points because that's what they are". These were stated as follows:

   "Was there a common intention between the three who went to Larry Street's house to carry out a housebreaking at his house to get money and/or drugs? Second, did Alexandra Doran's death occur in carrying out that plan? Three, did Darren Fitzgerald do an act which was likely to endanger human life, and I have suggested two to you, you may think of others, but they seem to be the obvious ones; that is, by holding the loaded gun near her head or by squeezing the trigger when it was so positioned. Four, would an ordinary person in such a position have reasonably foreseen her death as a possible outcome? Five, was her death a probable consequence of carrying out the burglary and robbery in the sense that there was, objectively viewed, a real or substantial chance of it occurring?"

2. It is true that taken in isolation that summary would fall short of the requirements of the case. However her Honour did not present it to the jury as an exhaustive statement of what needed to be shown. They would fairly have been regarded as what the learned Crown prosecutor referred to as "dot points". In the light of the more expansive and appropriate directions that had already been given, I am unable to see that this summary falsifies the summing up on these points or renders it inadequate as a whole.

3. Accordingly I would dismiss the appeal.

4. CHESTERMAN J: I agree with the reasons and orders proposed by Thomas JA.