R v Sumner; R v Fitzgerald - [2013] SASCFC 82

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SUMNER; R v FITZGERALD
[2013] SASCFC 82
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Blue)
16 August 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - OTHER OFFENCES
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE - DIRECTIONS TO JURY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - ALTERNATIVE VERDICTS
EVIDENCE - ADMISSIBILITY AND RELEVANCY - RES GESTAE
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - DNA EVIDENCE
The appellants were convicted after trial by jury in the Supreme Court of one count of murder and one count of aggravated causing serious harm with intent to cause harm.
The Crown case was that each defendant, in company with others, broke into and was present in a house when another or others in the group struck and injured the deceased, Mr Drover, and the second victim, Mr Karpany, in the implementation of a joint enterprise to cause grievous bodily harm and serious harm respectively. The Crown case against the appellant Sumner depended upon identification evidence by witnesses in the house. The Crown case against the appellant Fitzgerald depended upon his DNA being found on a didgeridoo which had been moved in the house coupled with evidence that Fitzgerald had never been to the house on any previous occasion.
The appellants appeal against the convictions on the following grounds:
1 the Judge erred in failing to leave to the jury on the second count an alternative of the basic offence as opposed to the aggravated offence;
2 the second count charged an offence not known to law being aggravated causing serious harm with intent to cause serious harm;
3 the Judge erred in failing to direct the jury that participation in joint criminal enterprise required more than the defendants' presence at the house in the circumstances;
4 the Judge erred in admitting evidence of a "000" call made by the owner of the house;
5 the Judge misdirected the jury on the first count concerning the alternative verdict of manslaughter by referring to an appreciable risk of harm;
6 by Fitzgerald: the Crown failed to exclude a reasonable hypothesis consistent with his innocence, namely the presence of his DNA on the didgeridoo being explained by secondary transfer via Sumner.
Held: by the Court dismissing the appeal:
1 Per Gray and Sulan JJ: section 23(1) of the Criminal Law Consolidation Act 1935 (SA) creates two separate offences, being the basic offence and the aggravated offence (at [31]-[38]).
Per Blue J (contra): section 23(1) creates a single offence which merely has two forms for the purpose of the maximum penalty (at [128]-[140]).
2 The presence of each defendant in company with the person or persons who struck Mr Karpany was essential to make out joint criminal enterprise. A finding of guilt of the basic offence necessarily connoted guilt of the aggravated offence the subject of the second count (at [45]-[49] per Gray and Sulan JJ, [141]-[142] per Blue J).
3 In those circumstances, the Judge did not err in not leaving the basic offence to the jury (at [46] per Gray and Sulan JJ, [143]-[144] per Blue J).
4 The second count charged an offence known to law under section 23(1) (at[30]-[31] per Gray and Sulan JJ, [145]-[146] per Blue J).
5 The Judge did not err in his direction to the jury on what constitutes joint enterprise (at [49] per Gray and Sulan JJ, Blue J agreeing).
6 Presence of the defendants at the house as part of the group undertaking the home invasion was sufficient in the circumstances to constitute implementation of a joint criminal enterprise to inflict grievous bodily harm and serious bodily harm on the victims (at [59]-[62] per Gray and Sulan JJ, Blue J agreeing).
7 The "000" call was made during the attack while the attackers were still in the house and formed part of the res gestae (at [69]-[70] per Gray and Sulan JJ, Blue J agreeing).
8 The Judge adequately corrected his earlier misdirection concerning the alternative verdict of manslaughter by re-directing the jury that an appreciable risk of serious harm or injury was required (at [71]-[76] per Gray and Sulan JJ, Blue J agreeing).
9 It was open to the jury to be persuaded beyond reasonable doubt that secondary transfer of Fitzgerald's DNA did not comprise a reasonable hypothesis consistent with his innocence available on the evidence (at [106]-[113] per Gray and Sulan JJ, per Blue J agreeing).
Criminal Law Consolidation Act 1935 (SA) s 5, s 5AA, s 11, s 19, s 23, referred to.
Kingswell v The Queen (1985) 159 CLR 264; Reg v Courtie [1984] AC 463; Gillard v The Queen (2003) 219 CLR 1; R v Tilley (2009) 105 SASR 306; Huynh v The Queen [2013] HCA 6; R v Tangye (1997) 92 A Crim R 545; Vocisano v Vocisano (1974) 130 CLR 267; Walton v The Queen (1989) 166 CLR 283; Papakosmas v The Queen (1999) 196 CLR 297; Wilson v The Queen (1992) 174 CLR 313; M v The Queen (1994) 181 CLR 487; R v Hillier (2007) 228 CLR 618; R v Weller Court of Criminal Appeal, Criminal Division, Case No. 2008/4666/B3 in the Court of Appeal in England, considered.

R v SUMNER; R v FITZGERALD
[2013] SASCFC 82
Court of Criminal Appeal: Gray, Sulan and Blue JJ
GRAY and SULAN JJ:

This is an appeal against conviction.
The defendants and appellants, Grant Andrew Sumner and Daniel Glenn Fitzgerald were charged with murder.[1] They were also charged with aggravated causing serious harm with intent to cause serious harm. The alleged aggravating circumstances were that offensive weapons, a pitchfork and pole, were used and that the offence was committed in company with each other and with other persons.[2]
[1] Statement of Offence
Murder. (Section 11 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Grant Andrew Sumner and Daniel Glenn Fitzgerald on the 19th day of June 2011 at Elizabeth South, murdered Kim Bruce Drover.
[2] Statement of Offence
Following a trial in the Supreme Court the defendants were convicted by jury verdict of both offences.
The Prosecution Case
On 19 June 2011 at about 6.00am, a group of men forced entry into a house at Elizabeth South. The house belonged to Nardene Wanganeen. A number of people were staying at the house at the time.
Earlier that morning Sumner had been at the house. He was visiting relatives, including his father. He became involved in several physical altercations. Sumner and the deceased, Kim Bruce Drover, commenced play fighting and events turned serious. Sumner split Mr Drover’s lip.
Witnesses also described an incident in which Sumner ran down the street towards two parked cars “filled with screaming girls”. Sumner dragged one of the girls from the car. He then jumped on the bonnet and kicked-in the windscreen. Events culminated in a fight between Sumner and his father at the front of Ms Wanganeen’s house. Sumner’s jaw was fractured. Sumner was chased away from the house by Mr Drover. Sumner then contacted his mother who some time later arrived by motor vehicle. Witnesses described threats of retaliation being made by Sumner and his mother as they drove away.
About two hours later and shortly before 6.00 am, a group of men arrived together at the Wanganeen property. They travelled in several motor vehicles and all vehicles were parked around the corner. The men split into two groups, one proceeding to the front of the house and the other to the rear. Simultaneously, the two groups of men forced their way into the house, smashing through both the front and rear doors. Several of the group were armed with weapons including an axe and a garden fork. Others armed themselves with objects once they entered the house.
Mr Drover, was in the lounge room next to the front door when the men bashed their way inside. He was attacked with weapons, including lengths of timber and garden implements. Mr Drover sustained a fatal head injury.
Leon Karpany had gone to the front door to confront the attackers. He was overpowered and struck with weapons. He sustained brain injuries. After the attack, the men left the house. Neighbours saw the men return to their vehicles and drive away.
The prosecution case was that the defendants were part of the group of men who entered the house, armed with weapons, and that they did so for the purpose of inflicting grievous bodily harm to one or other of the occupants of the house. There was no direct evidence that either defendant inflicted any blows to either Mr Drover or Mr Karpany. The case was conducted on the basis that both defendants were part of a joint enterprise to inflict grievous bodily harm and during the course of that joint enterprise, Mr Drover sustained fatal injuries, and Mr Karpany sustained serious harm.
Sumner was seen inside the house during the attacks. He was recognised by people that knew him, or were related to him. He was seen entering the house through the front door with five or six men. Members of that group attacked Mr Drover. Sumner was seen standing over Mr Drover as he lay motionless on the floor. He was seen holding a plank of wood. He was screaming words such as “You Webb dogs” - a reference to Mr Drover’s extended family. A little later Sumner was heard to say “That’s enough, let’s go”. The men then left the house.
The evidence of several witnesses supported the prosecution case that a group of men broke into Ms Wanganeen’s home in the early hours of Sunday, 19 June 2011.
Ms Wanganeen observed five or six people come though the front door. While attackers were in the house, she made a 000 call. When she spoke to the operator she named Sumner as one of the group involved in the attack. Ms Wanganeen identified Sumner as one of those people. She saw the attack on Mr Drover. She also saw Mr Karpany lying on the ground being attacked by one of the group who was trying to drive a pitchfork into Mr Karpany’s head. She saw Mr Karpany unconscious, with a wound to his head.
Kristy Oats saw a man with a pitchfork hit Mr Karpany in the head. When Mr Karpany fell to the floor, that person stabbed him with the pitchfork. She also identified Sumner as being one of the group.
Natasha Fidler saw Mr Karpany lying on the floor and a person holding a pitchfork standing over him. She also identified Sumner as one of the people involved at that time.
The prosecution case against Fitzgerald relied upon DNA evidence, obtained from a forensic sample taken from a didgeridoo found in the lounge room, to establish his presence at the scene.
The Appeal
On appeal the defendants advanced several complaints. It was said that the Judge misunderstood the elements of the offence the subject of the second count, and misdirected the jury in relation to that count. They also complain that the Judge failed to properly direct the jury on the topic of joint criminal enterprise by not emphasising the element of continued participation. The defendants further complained that the evidence of a 000 telephone call was inadmissible and contained prejudicial hearsay information. Counsel for Sumner advanced contentions on each of these grounds. Counsel for Fitzgerald supported these submissions.
Fitzgerald advanced an additional complaint. He complained that the prosecution failed to exclude a reasonable hypothesis consistent with his innocence and that there was insufficient evidence to sustain his convictions.
One offence or Two – The Second Count
This complaint raised a question as to the proper construction of section 23 of the Criminal Law Consolidation Act. That section provides:
Causing serious harm
(1)A person who causes serious harm to another, intending to cause serious harm, is guilty of an offence.
Maximum penalty:
(a)     for a basic offence—imprisonment for 20 years;
(b)     for an aggravated offence—imprisonment for 25 years.
(2)If, however, the victim in a particular case suffers such serious harm that a penalty exceeding the maximum prescribed in subsection (1) is warranted, the court may, on application by the Director of Public Prosecutions, impose a penalty exceeding the prescribed maximum.
(3)A person who causes serious harm to another, and is reckless in doing so, is guilty of an offence.
Maximum penalty:
(a)     for a basic offence—imprisonment for 15 years;
(b)     an aggravated offence—imprisonment for 19 years.
An “aggravated offence” is defined in section 5 in the following terms:
aggravated offence—where a provision differentiates between the penalty for an aggravated offence and the penalty for a basic offence, the reference to an aggravated offence is a reference to the offence in its aggravated form (see section 5AA);
basic offence—where a provision differentiates between the penalty for an aggravated offence and the penalty for a basic offence, the reference to a basic offence is a reference to the offence in its non-aggravated form (see section 5AA);
Relevantly, section 5AA provides:
Aggravated offences
(1)Subject to this section, an aggravated offence is an offence committed in 1 or more of the following circumstances:
...
(b) the offender used, or threatened to use, an offensive weapon to commit, or when committing, the offence;
...
(h) except in the case of an offence against Part 3A, the offender committed the offence in company with 1 or more other persons (including persons who are children);
...
(3)If a person is charged with an aggravated offence, the circumstances alleged to aggravate the offence must be stated in the instrument of charge.
(4)If a jury finds a person guilty of an aggravated offence, and 2 or more aggravating factors are alleged in the instrument of charge, the jury must state which of the aggravating factors it finds to have been established (but a failure to comply with this subsection does not affect the validity of the jury's verdict).
...
(6)This section does not prevent a court from taking into account, in the usual way, the circumstances of and surrounding the commission of an offence for the purpose of determining sentence.
The defendants submitted that section 23(1) creates only one offence and that the circumstances of aggravation contained in section 5AA are relevant only to penalty. It was contended that the Judge misunderstood the nature of the offence created by section 23(1) and, as a result, his directions given to the jury were flawed. Alternatively, it was submitted that the Judge erred by failing to leave as an alternative for the jury’s consideration, the non-aggravated form of the offence.
The Judge directed the jury that, in order to establish the offence of aggravated causing serious harm with intent to cause serious harm, the prosecution had to prove that each defendant was part of a plan to cause serious harm and that, in furtherance of that plan, serious harm was inflicted upon Mr Karpany. The Judge directed the jury:
In order to make out count 2 as charged, it must be proved beyond reasonable doubt when looking at each accused separately that the accused was part of a plan to cause serious harm and that plan was on foot when Mr Karpany was so harmed and that person played a part in that joint enterprise by in some way implementing that plan, if that state of mind is proved beyond reasonable doubt, along with all the other elements the particular accused will be guilty of count 2.
The Judge referred to his directions in respect of joint enterprise, when later directing the jury on the count of murder. That later direction was in the following terms:
...I direct you if two or more persons join in a joint criminal enterprise every act done and word spoken in a furtherance of that enterprise by any of them is in law done and spoken by them all. In other words the combined action of two or more persons with a common criminal intent implementing an arrangement previously agreed upon by them makes them all guilty of the resulting crime. The law considers that in such circumstances each person is acting both on his own account and on behalf of the other person or persons involved. In other words they are acting as a team and it really does not matter who did what as long as they agree to act as a team to commit that particular offence and they were part of it. It does not matter who did what if that has been proved ladies and gentlemen.
If it is proved that both accused were part of an agreement with others to cause grievous bodily harm to the deceased and they implemented that agreement as a result of which the deceased was killed it does not matter, as I say, as part of that team involved in that agreement who did the actual killing.
...
However, I direct you that before either accused can be found guilty of murder on that basis it must be proved that there was an agreement with each accused, and each accused was part of an agreement to cause grievous bodily harm. That each accused was knowingly part of that agreement to cause grievous bodily harm and that was their state of mind and they implemented that agreement in some way and it was on foot when the deceased was killed. Then if that is proved each would be guilty of murder.
The jury were further directed that the prosecution had to prove that the actions of the person who inflicted the harm were deliberate and unlawful, and that the person intended to cause serious harm. The Judge directed the jury that serious harm is harm that endangers a person’s life, or harm that consists of or results in a serious and protracted impairment of a physical or mental function, or harm that consists of or results in serious disfigurement.
The Judge directed the jury that, in order for the second count to be made out, the prosecution must prove beyond reasonable doubt one or both aggravating features, namely, that the person used an offensive weapon, and that the person committed the offence in company with one or more persons.
After the Judge had given the above directions, the prosecutor submitted that the appropriate way of determining the second count was to first take a verdict from the jury as to whether they are satisfied beyond reasonable doubt in relation to each defendant, whether the defendant was guilty of causing serious harm with intent to cause serious harm. If the jury returned a verdict of guilty in respect of that charge, then the further question should be asked as to whether the jury were satisfied that either one or both the elements of aggravation had been proved.
The above procedure differed from the manner in which the verdicts were taken. Each defendant was first found guilty of the charge the subject of the second count and the jury, when asked about the circumstances of aggravation, in each case found the circumstance of aggravation was that the offence took place in company. The following question was then asked of the jury in the case of each defendant:
In relation to count 2 aggravated causing serious harm with intent to cause serious harm which of the two alleged aggravating factors do you find established?
In the case of each defendant, the jury responded “The count associated with being committed with people”.
The defendants submitted that section 23(1) creates one offence, “causing serious harm with intent to cause serious harm”. It was contended that the circumstances of aggravation contained in section 5AA are relevant only to penalty and do not form part of the elements of the offence. It was argued that the purported offence with which the defendants were charged, “aggravated causing serious harm with intent to cause serious harm”, was unknown to the criminal law.

This complaint was first raised on appeal. The defendants were, without objection, charged and arraigned for the aggravated offence and verdicts taken with respect to that offence.
On appeal the defendant relied on Kingswell.[3] The High Court was concerned with interpreting section 233B(1)(cb) of the Customs Act 1901 (Cth). This section made it an offence for a person to conspire with another to import narcotics. A person found guilty of the offence was to be punished upon conviction as provided by section 235. Section 235(2)(c) provided a range of maximum penalties, the applicability of which depended on the presence of nominated aggravating circumstances. One matter of aggravation was a prior conviction of a narcotics offence. Gibbs CJ, Mason, Wilson and Dawson JJ, held that section 233B(1)(cb) created only one offence, and that section 235 was relevant only to the penalties applicable to that offence. In their reasons, the observations of Lord Diplock in Courtie[4] were discussed:[5]
[Lord Diplock] then considered the statutory provisions in question and held that the Act of 1967 created a number of specific offences and in that context went on to make the statement upon which particular reliance is placed by the counsel for the applicant in the present case. He said:
My Lords, where it is provided by a statute that an accused person's liability to have inflicted upon him a maximum punishment which, if the prosecution are successful in establishing the existence in his case of a particular factual ingredient, is greater than the maximum punishment that could be inflicted on him if the existence of that particular factual ingredient were not established, it seems to me to be plain beyond argument that Parliament has thereby created two distinct offences, whether the statute by which they are created does so by using language which treats them as being different species of a single genus of offence, or by using language which treats them as separate offences unrelated to one another.
This passage cannot have been intended to state an absolute rule of law, but rather a rule of construction or an indication of the way in which the courts will approach a question of this kind. The word "offence" has no fixed technical meaning in the law and Lord Diplock was probably using it in the broad sense of any conduct forbidden by law on pain of punishment. As his judgment recognizes, in the passage already cited, it is the legal definition of the offence which indicates which are its factual ingredients. Putting aside, for the moment, s. 80 of the Constitution, there is no fundamental law that declares what the definition of an offence shall contain or that requires the Parliament to include in the definition of an offence any circumstance whose existence renders the offender liable to a maximum punishment greater than that which might have been imposed if the circumstance did not exist. The existence of a particular circumstance may increase the range of punishment available, but yet not alter the nature of the offence, if that is the will of the Parliament. The rule of construction which Lord Diplock has enunciated is a salutary one, but must yield to an expression of a contrary intention.
[Emphasis added.]
[Citations omitted.]
[3]    Kingswell v The Queen (1985) 159 CLR 264.
[4]    Reg v Courtie [1984] AC 463.
[5]    Kingswell v The Queen (1985) 159 CLR 264, 275-6.
The defendants submitted that the jury should have been instructed that they would be asked whether on the count of causing serious harm with intent to cause serious harm they find the defendant guilty or not guilty. If their answer was “guilty”, then which, if any, of the aggravating features had been made out? It was contended that the course proposed by the prosecution in the following exchange with the Judge was the correct approach:
[THE PROSECUTOR]: .... My understanding of it is the first step in the verdict taking process is do you find the accused guilty of the offence of causing serious harms with intent to cause serious harm. If the answer is ‘yes’, do you find that the offence was aggravated ‘yes’, if so, how. So the first step in that process is the question is he guilty of causing serious harm with intent.
HIS HONOUR: Yes, I missed a step. You’re saying guilty of serious harm although not aggravated, although the charge is aggravated.
[THE PROSECUTOR]: That’s right. The charge is causing serious harm with intent, but it is aggravated by one or other of those aggravating features. The irony of this case is they’ll only find someone guilty of that count if they are satisfied that he was there as part of a joint enterprise.
HIS HONOUR: I’m going to leave it on that basis I’ll content myself with the tail end of my summing up with the facts of this case.
[Emphasis added.]
The defendants submitted that by not following the course suggested by the prosecutor, the Judge erred in taking a verdict of a charge unknown to law.
We reject this contention. We consider that section 23(1) creates two offences. The first is the basic offence, “causing serious harm with intent to cause serious harm”, and the second, “aggravated causing serious harm with intent to cause serious harm”.
The defendants accepted that, ultimately, the question was one of statutory construction. It was submitted that section 23(1) and 23(3) are the operative provisions. Section 23(1) creates the offence of causing serious harm to another, intending to cause serious harm. Section 23(3) creates the offence of recklessly causing serious harm to another. The defendant contended that they are the offences created by the section. The reference to “basic offence” and “aggravated offence” is merely, in counsel’s submission, descriptive when considering the maximum penalty.
Section 5AA(3), the text of which is earlier extracted, contemplates that a person can be charged with an aggravated offence. Similarly, section 5AA(1) speaks of an aggravated offence. The language Parliament has adopted in section 5AA(3) does not speak of an offence or a basic offence with circumstances of aggravation. The section explicitly refers to an aggravated offence.
The defendants submitted that section 23(1) refers to an offence which, if committed in certain circumstances as described in section 23(1)(a)-(h), becomes aggravated. It was said that there is only the one offence and, if there is the presence of an aggravated feature, then it is described as an aggravated offence.
Section 23(6) provides that a court is not prevented from taking into account in the usual way the circumstances of and surrounding the commission of an offence for the purpose of determining sentence. The section then provides two examples:
A person is charged with a basic offence and the court finds that the offence was committed in circumstances that would have justified a charge of the offence in its aggravated form. In this cae, the court may, in sentencing, take into account the circumstances of aggravation for the purpose of determining penalty but must (of course) fix a penalty within the limits appropriate to the basic offence.
A person is charged with an aggravated offence and the court finds a number (but not all) of the circumstances alleged in the instrument of charge to aggravate the offence have been established. In this case, the court may, in sentencing, take into account the established circumstances of and surrounding the aggravated offence (whether alleged in the instrument of charge or not) but must not (of course) take account of circumstances alleged in the instrument of charge that were not established.
[Emphasis added.]
In our view, those examples further support the existence of two offences - a basic offence and an aggravated offence. The second example clearly speaks of a person charged with an aggravated offence and would appear to contemplate a separate offence.
If the defendants’ contentions were to be accepted, complications would arise. If there is only one offence, being the basic offence of causing serious harm with intent to cause serious harm, and the circumstances of aggravation are matters that only go to the question of penalty, it is possible that the question of aggravation is a question for the judge when determining sentence. If it is not, as was submitted, that a judge is required to take a special verdict. On the other hand, if aggravated causing serious harm with intent to cause serious harm is a separate offence, the procedure in taking a verdict is straightforward. The court would take a verdict in respect of the aggravated causing serious harm with intent to cause serious harm. If the jury were to find the defendant not guilty of that offence, then the alternative of causing serious bodily harm with intent to cause serious bodily harm would be open. Alternatively, if the basic offence was the only offence charged and, as it transpired, there were circumstances of aggravation, the judge could have regard to those circumstances, pursuant to section 5AA(6), but could not impose a sentence higher than the maximum sentence for the basic offence.
In our view, the legislation contemplates two offences. It would appear, as discussed above, to do so explicitly. We reject the submission that the offence charged was not an offence known to law. The Judge obtained a verdict in respect of the offence, and then obtained a further verdict in respect of the circumstances of aggravation.
Leaving an Alternative Offence
The defendants’ further submission was that the Judge failed to leave as an alternative, the basic or lesser offence for the jury’s consideration. It is contended that the non-aggravated form of section 23 ought to have been left to the jury and that the failure to have done so gives rise to a risk of a miscarriage of justice.
In Gillard,[6] the defendant and a co-offender were jointly convicted of the murder of two men and the attempted murder of another. The co-offender shot the victims as part of a contract killing. The defendant stole a van and used it to drive the co-offender to where the killings took place. The defendant maintained that he had no knowledge of the co-offender's plan and held the belief that the co-offender was going to commit a robbery.
[6] Gillard v The Queen (2003) 219 CLR 1.
The trial judge did not consider a verdict of manslaughter to be reasonably open to the jury and therefore did not direct the jury about the availability of that verdict. As a result, the only options open to the jury were conviction for murder or acquittal. The defendant argued that the judge's failure to direct the jury in relation to manslaughter amounted to a miscarriage of justice.
The High Court accepted the defendant’s argument and allowed the appeal. Gleeson CJ and Callinan J observed:
In our view, there was a viable case of manslaughter to be left to the jury, and the refusal to leave that case was a wrong decision on a question of law.
This raises the question of the proviso. Gilbert decides that it is not an answer to the appellant's argument to point out that, since the jury were properly (albeit conservatively) instructed on the elements of murder, and since they convicted the appellant of murder, there is, on that account alone, no miscarriage of justice. It is unnecessary to repeat the reasons for that. The jury were wrongly deprived of an opportunity to consider an intermediate position. The respondent sought to distinguish Gilbert on the following ground. One of the counts on which the jury convicted the appellant was one of attempted murder. In relation to that count, there was no intermediate possibility of manslaughter. That is so, but the distinction does not answer the problem to which Gilbert was addressed. If, in relation to the two counts of murder, the jury were (by hypothesis) not properly instructed in the law of culpable homicide, then that could have affected the outcome of the whole trial. Although the error related directly only to the first and second counts, once it is accepted that the nature of the error is such as to affect the verdicts on those two counts it is impossible to dismiss the possibility that it also affected the verdict on the third count.
In Tilley,[7] the defendant was charged with the offence of aggravated threatening life contrary to section 19(1) of the Criminal Law Consolidation Act. The aggravating feature of the offence was that the defendant used a Stanley knife when he threatened to kill the victim. The offence occurred following a motor vehicle accident. When police subsequently arrested the defendant, they were unable to search his premises and the Stanley knife was never located. Whether a Stanley knife was used to commit the offence was a significant issue at trial. The defendant was convicted of the offence by a jury. On appeal it was contended that the basic offence should have been, but was not, left to the jury.
[7] R v Tilley (2009) 105 SASR 306.
In allowing the appeal, the Court (Bleby, Gray and Layton JJ) noted:[8]
There is nothing in section 5AA which would support the defendant’s submission. There are explicit statutory provisions contained in the Criminal Law Consolidation Act which require that certain alternative offences be put before a jury. There is nothing contained in section 5AA of the Criminal Law Consolidation Act which explicitly or impliedly indicates that there is a mandatory requirement for a basic offence to be put before the jury as an alternative offence when an aggravated offence is charged.
As a result of section 57 of the Juries Act, in respect of an offence against section 19(1) of the Criminal Law Consolidation Act, the common law still remains a relevant consideration as to whether an alternative verdict should have been put in this case.
Later in their reasons, the Court observed:[9]
In short, at common law, taking into account section 57(3) of the Juries Act, the following propositions emerge from the case law. Merely because an alternative verdict may theoretically be open or possible in the broadest sense, this is not enough to require an alternative verdict to be left. It must be a “reasonably open” or “fairly and practically open” or a “viable rational result” on the evidence before the jury. The duty to put an alternative verdict lies with the trial Judge, regardless of whether or not the prosecution or defence raise the issue. Third, the putting of an alternative verdict to the jury must not result in a miscarriage of justice.
[8] R v Tilley (2009) 105 SASR 306, [47]-[48].
[9] R v Tilley (2009) 105 SASR 306, [60].
In our view, in the present proceeding the basic offence was not reasonably open nor was it a viable alternative. The aggravating feature found by the jury was that the offence was committed in company. There was an overwhelming and unchallenged body of evidence that the offending was committed by a group of men. As earlier noted, Ms Wanganeen described more than five or six people run in through the front door of the house. Ms Oats described six entering through the front door. She described there being about ten people in the lounge room when the fist blow was delivered to Mr Drover. She also estimated that about five or six people came through the back door. The evidence of Steven Drover was that he and others were holding the front door shut as people were banging on it. He went to the back door and saw three people come in the back door. Ms Fidler described seeing at least two men in the house during the attack and then saw five or six men leaving the house together as a group. The evidence from other witnesses who were at the house was that between five and ten men were observed at any one point during the attack. The evidence from neighbours was that a group of between 12 to 17 men was observed arriving and departing the house in three to five vehicles.
Having regard to this evidence, the non-aggravated form of the offence, causing serious harm with intent to cause serious harm, was not a viable alternative. There has been no miscarriage of justice.
In Company
The defendants’ final complaint in relation to the offence of aggravated causing serious harm with intent to cause serious harm is that the Judge failed to adequately direct the jury as to the differences between the doctrine of joint criminal enterprise and the aggravating feature of “in company”. It was contended that the following direction of the Judge invited the jury to engage in an impermissible reasoning process:
There is a further qualification. If you find either of the accused guilty of that charge, you will then ask the question: ‘As two aggravating features are alleged, and only one has been proved, you must state after giving your verdict, if it is one of guilty, which of the aggravating factors you find have been established’ and your answer will be either ‘the offensive weapon’ or ‘in company with other people’, or you would say both. You cannot say ‘none’, because if none are proved the charge would not have been made out and your verdict will be one of not guilty. One has to prove before the charge itself can be made out. If the charge is made out, you will then be asked which of those existed and you can say one or two of them.
It was contended that because the Judge did not direct the jury that there may be circumstances where a person commits an offence in company but is not a party to a joint criminal enterprise, there was a possibility that the jury would reason that, because the offence was committed in company, the defendants must have been party to a joint enterprise to commit the crime.
We reject this submission. While the Judge could have elaborated on the topic of “in company” in more detail and drawn a distinction with the doctrine of joint criminal enterprise, in this case there was no need to do so. There may be circumstances in which it is possible that a person commits an offence in company but is not part of a joint criminal enterprise and vice versa. However, there was no evidential basis upon which to draw a distinction. The direction upon joint enterprise was correct and, once the jury was so satisfied, it follows that the defendants were acting in company. The Judge was not required to elaborate on the differences in his directions to the jury.
Joint Criminal Enterprise
The defendants complained about the directions on joint criminal enterprise. It was contended that the Judge erred by failing to direct the jury that participation was an ingredient of the doctrine and that, if they were of the view that the defendants were not participating in the enterprise, the defendants could not be found guilty of either offence. It is submitted that there was a case that should have be put to the jury that the defendant Sumner, although present, was not a participant in any joint enterprise because he was not seen to do anything by three of the four witnesses who identified him at the scene. In the case of the defendant Fitzgerald, the only evidence of his presence at the house was from the DNA sample located on the didgeridoo.
This ground of appeal raises two questions. First, whether mere presence is sufficient to establish participation for the purpose of the doctrine of joint criminal enterprise. And second, whether the defendants’ participation in the joint criminal enterprise was a live issue at trial such that the Judge was required to give more specific directions on the topic than those in fact given.
In his summing-up to the jury on the charge of murder, the Judge directed as follows:
If it is proved that both accused were part of an agreement with others to cause grievous bodily harm to the deceased and they implemented that agreement as a result of which the deceased was killed it does not matter, as I say, as part of that team involved in that agreement who did the actual killing. The agreement might be the result of a carefully worked out plan or it might be made on the spur of the moment without a word spoken, just at the last minute. However, if it is proved in relation to each accused that it is arrived at and as a result of that agreement the deceased is killed and as far as both accused are concerned that agreement is still on foot when the deceased was killed, then both would be just as guilty of murder as the person who committed the crime even though of course he is not here in court. Whether such an agreement existed is a matter of the evidence and is a matter for you. I will turn to that in a moment when I sum up the facts.
However, I direct you that before either accused can be found guilty of murder on that basis it must be proved that there was an agreement with each accused, and each accused was part of an agreement to cause grievous bodily harm. That each accused was knowingly part of that agreement to cause grievous bodily harm and that was their state of mind and they implemented that agreement in some way and it was on foot when the deceased was killed. Then if that is proved each would be guilty of murder.
[Emphasis added.]

Later in his charge to the jury, the Judge repeated his directions as to joint criminal enterprise:
Before either accused can be found guilty of murder on that basis, namely that those elements are made out in relation to one accused, it must be proved that there was an agreement which each accused was part of to do and cause grievous bodily harm. Each accused must be knowingly part of that agreement to cause grievous bodily harm and that was their state of mind and they implemented that agreement in some way and it existed and was on foot when the deceased was killed. Then if that is proved each will be guilty of murder - I hope that is clear.
[Emphasis added.]
In relation to the charge of aggravated causing serious harm with intent to cause serious harm count, the Judge directed the jury in similar terms:
To be part of an agreement the same considerations I described in relation to murder apply. If it is proved that both the perpetrator and the person I will describe as ‘the second person’ had an agreement to cause serious harm, it does not matter who administered the blow, the other person or persons will be guilty if it is proved that the agreement was arrived at and implemented in some way by the other person, other than the person who inflicted the blow and as a result of that agreement, the alleged victim in count 2 suffered serious harm; and it was done with at least one of those aggravating factors and the serious harm, of course, was caused while the agreement was on foot. And if there is a reasonable doubt as to whether there was an intention to cause serious harm and serious harm was caused, but it was found proved that there was a plan and an intention just to cause harm, then the alternative verdict will be made out. So I will just reiterate: in order to make out count 2 as charged, it must be proved beyond reasonable doubt when looking at each accused separately that the accused was part of a plan to cause serious harm and that plan was on foot when Mr Karpany was so harmed and that person played a part in that joint enterprise by in some way implementing that plan, if that state of mind is proved beyond reasonable doubt, along with all the other elements the particular accused will be guilty of count 2.
[Emphasis added.]
In Huynh,[10] the High Court unanimously dismissed three appeals from a decision of this Court upholding the convictions for murder. The defendants were part of a group that descended on a birthday party after a dispute between one of the defendants and others attending the party. The victim died as the result of a stab wound that was inflicted in the course of an assault carried out by a number of persons. The defendants were convicted on the basis that they were participants in a joint criminal enterprise to kill or to cause serious bodily harm to a person or persons at the party using a knife or similar weapon. The defendants appealed against their convictions on the basis that the Judge had not told the jury that it was necessary for the prosecution to prove that each defendant had participated in the joint criminal enterprise.
[10] Huynh v The Queen [2013] HCA 6.
The High Court held that, although participation in furtherance of an agreement to kill or to cause serious bodily harm was an element that had to be proved against each defendant, the Judge had not erred because the defendants’ participation was not a live issue at their trial. The defendants did not dispute that they were present when the crime was committed. Their presence pursuant to the agreement constituted participation in the joint criminal enterprise. The Court observed:[11]
The appellants submitted that proof of their participation in any joint criminal enterprise had been an issue at the trial. Their submissions were apt to suggest that it had been incumbent on the prosecution to prove an act of "participation" beyond presence at the scene pursuant to the agreement. The submissions in this respect require consideration of proof of participation in a joint criminal enterprise of the kind alleged here. So, too, does one submission made by the respondent.
The respondent's written submissions acknowledged that joint enterprise liability requires proof of the agreement and of the accused's participation in the enterprise. However, on the hearing of the appeals the respondent resiled from that submission in favour of the contention that "one plays a part at its most simple by joining into the agreement". That contention conflated the making of the agreement (whether tacit or express) with participation in its execution and confused liability for conspiracy with liability for the offence that is the subject of the conspiracy. Under the common law the agreement of two or more persons to commit a crime is, without more, a conspiracy. Parties to a conspiracy are liable to conviction for that offence regardless of whether the crime that is the subject of their agreement is committed. The doctrine of joint criminal enterprise provides the means of attaching liability for the agreed crime on all the parties to the agreement regardless of the part played by each in its execution. Of course there will usually be no occasion to have recourse to the doctrine in the case of a party who does some or all of the acts constituting the actus reus. The work done by the doctrine is in making other parties liable for those acts. The principles are as explained by McHugh J in Osland v The Queen. Liability attaches to all the parties to the agreement who participate in some way in furthering its execution.
A person participates in a joint criminal enterprise by being present when the crime is committed pursuant to the agreement. The unchallenged evidence was that each appellant was one of a larger number of persons who had travelled from Duong's house to the Vartue Street premises. No nice question arises in these appeals of the sufficiency of the evidence to prove participation in the enterprise. If, at any time prior to the stabbing, the appellant whose case was under consideration was found to have come to an understanding or arrangement with others, including the principal offender, that a knife or similar bladed weapon would be used to kill or to inflict really serious bodily harm on a person or persons at the Vartue Street premises, his presence as one of the hostile group amounted to participation in furtherance of the agreement.
Proof that the appellant whose case was under consideration assaulted a person or persons at the Vartue Street premises was material to the determination of the existence and nature of any agreement to which he was a party. However, proof that an appellant was a party to the agreement specified in par (1) of the direction (or to an agreement to assault a person or persons having the requisite foresight) did not depend upon proof that he had engaged in any particular conduct at the scene.
[Citations omitted.]
[11] Huynh v The Queen [2013] HCA 6, [36]-[39].
In Tangye,[12] Hunt CJ, with whom McInterney and Sully agreed, discussed the elements of joint criminal enterprise. In relation to participation, he said:[13]
A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime.
[12] R v Tangye (1997) 92 A Crim R 545.
[13] R v Tangye (1997) 92 A Crim R 545, 557.
In Huynh’s case, the High Court also discussed a trial judge’s duty to appropriately direct the jury. The Court said:[14]
The contention that it is an error of law for a trial judge to omit to instruct a jury on all of the elements of liability for an offence cannot stand with the many decisions of this Court affirming the statement of the responsibility of the trial judge in Alford v Magee. The duty is to decide what the real issues in the case are and to direct the jury on only so much of the law as they need to know to guide them to a decision on those issues. The application of the principle was illustrated in Alford v Magee by reference to the trial of an accused for larceny at which the sole issue is proof of the taking away of the thing stolen. In such a case it is neither necessary nor desirable to instruct the jury on the elements of the offence of larceny. Commonly liability does not reduce to a single factual question at the trial and the trial judge's responsibility will not be as readily discharged as in the celebrated illustration of Sir Leo Cussen's "great guiding rule". Discharge of that responsibility will usually involve instruction respecting the elements of the offence and, where appropriate, the principles governing accessorial or joint enterprise liability. This is not to say that the omission to specify an element of liability that is not in issue in the trial is legal error.
[Citations omitted.]
[14] Huynh v The Queen [2013] HCA 6, [31].
In our view, there was no error in the Judge’s directions in the present proceeding. We reject the submission that there was insufficient evidence to establish participation in the enterprise such that the Judge erred by failing to give more detailed directions on the element of participation.
Sumner’s defence at trial was that he was not present when the group of men forced their way into the house. Evidence was led from Ms Wanganeen that whilst she was in one of the bedrooms she saw Sumner enter the house through the front door and run through the lounge room. She said that he looked straight at her and she recognised him. He was her nephew. She did not see him again after that. The evidence from Ms Fidler was that she saw Sumner standing in the house looking into the lounge room while the attack was taking place. She saw Sumner and another male leaving the house through the front door. Steven Drover gave evidence that he saw Sumner standing by the front door. He could not see Sumner holding anything. The witness Ms Oats gave evidence that she saw Sumner standing in the lounge room. He was screaming “Webb dogs and stuff” (a derogatory term directed at the people staying at the house). He was holding a wooden plank. She said that she saw Sumner raise the plank over his right shoulder. He was standing over the deceased. She retreated back under the bed where she was hiding. She then heard a loud bang.
In the case of the defendant Fitzgerald, the principal issue at trial was whether or not he was present at the house that night. There was no suggestion that he may have been present but not participating in the enterprise. Mr Fitzgerald did not give evidence.
The Judge gave sufficient directions on joint enterprise liability and the element of participation. The decision in Huynh suggests that a person may participate in a joint criminal enterprise by being present when the crime is committed pursuant to the agreement. Here, the Judge went further and told the jury that they needed to find that the defendants “played a part in that joint enterprise by in some way implementing that plan” and that “they implemented that agreement in some way”. The Judge was not required to give any more detailed directions on the element of participation; it was not a sufficiently live issue at trial and their presence at the scene was established by witness identification and from DNA evidence. There was no other reason for the defendants to be at the house at that time except to participate in the implementation of the agreement.
000 Call
Ms Wanganeen gave evidence of making a 000 telephone call seeking the assistance of police. In the call, she referred to the defendant Sumner being involved in the attack. The recording of the call was played to the jury without objection. After the call had been heard by the jury, counsel for Sumner objected to the call being tendered as part of the res gestae. The Judge ruled that the 000 call was not admissible as part of the res gestae but admissible as part of the narrative of the case. The Judge directed the jury accordingly.
Counsel submitted that the assertion contained in the “000” call about Sumner being at the house was hearsay, relevant only for its testimonial effect and was prejudicial to the defendant who denied he was present. It is contended that the direction given by the Judge that the evidence was relevant for its narrative effect was erroneous as the contents of the call could only be relevant for the hearsay assertion it contained.
The High Court has discussed the admissibility of otherwise hearsay evidence on the basis that it forms part of the res gestae. In Vocisano v Vocisano, the Court observed:[15]
It is the contemporaneous involvement of the speaker at the time the statement is made with the occurrence which is identified as the res which founds admissibility. In Ratten's Case (1972) AC 378 , Lord Wilberforce seems to have regarded the relevant occurrence as the "drama" which began when it may be supposed a threat to kill his wife was made by the appellant in that case and which ended with her death. So regarded, the telephone call was necessarily involved in the occurrence and the deceased's statement to the telephonist clearly contemporaneously identified with it. But, in the present case, there was, in my opinion, no sufficient contemporaneity of the statements made to either of the witnesses Smith to warrant the conclusion that the statements were made as part of the res. The occurrence was the accident, and although the statements by the respondent were made proximately to the occurrence of the accident, they were in the nature of a historical account rather than in the nature of a statement made as part and parcel of the occurrence. Although, as the trial judge said, the circumstances may satisfy some of the expressions used by the Privy Council in expressing their Lordships' view, the statements were not, in my opinion, admissible as part of the res gestae. Accordingly, the evidence of those witnesses was inadmissible either as prior inconsistent statements or as statements made as part of the res gestae.
[15] Vocisano v Vocisano (1974) 130 CLR 267, 273.
In Walton, Wilson, Dawson and Toohey JJ said: [16]
An assertion may be admitted to prove the facts asserted if it is part of the res gestae, but it is then an exception to the rule against hearsay: see Adelaide Chemical and Fertilizer Co. Ltd. v. Carlyle. The justification for that exception is now said to lie in the spontaneity or contemporaneity of assertions forming part of the res gestae which tends to exclude the possibility of concoction or distortion: Ratten; Reg. v. Andrews: see also Adelaide Chemical and Fertilizer Co. Ltd. v. Carlyle. Of course, the discussion in Ratten and Andrews was in the context of the res gestae rule. The unlikelihood of concoction or distortion is not sufficient of itself to render a hearsay statement admissible: see Vocisano v. Vocisano. But if sometimes there is an element of hearsay in evidence which is led of statements made by a person other than a witness for the purpose of founding an inference concerning that person's state of mind, the justification for disregarding that element of hearsay may be thought to be of a similar kind. Such statements will rarely be purely assertive. Ordinarily they are reactive and are uttered in a context which makes their reliability the more probable. On the other hand, if a statement by a person about his state of mind is a bare assertion not amounting also to conduct from which a relevant inference can be drawn, then it ought to be excluded as hearsay.
[Citations omitted.]
[16] Walton v The Queen (1989) 166 CLR 283, 304.
In Papakosmas, Gaudron and Kirby JJ observed:[17]
In its early application, the res gestae doctrine was generally confined to statements “forming a portion of or an incident in the transaction which in all its parts and details constitutes one of the matters in issue”. A broader application was acknowledged in Ratten v The Queen, it being said in that case that if “the drama, leading up to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received”. The approach taken in Ratten was expressly accepted as correct by Mason CJ in Walton v The Queen and impliedly so in the joint majority judgment of Wilson, Dawson and Toohey JJ.
The more general statement of the principle in Ratten is in these terms:
“[H]earsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused.”
The principle expressed in Ratten is crucially dependent on the virtual certainty of the statement in question being true and, to that extent, it reflects the common law's bias against the reception of hearsay evidence …
[Citations omitted.]
[17] Papakosmas v The Queen (1999) 196 CLR 297, [53]-[55].
The 000 call was made by Ms Wanganeen while the group of men were still inside the house. She described the sequence of events surrounding the making of the phone call:
QWhen in the sequence of events was it you dialled the number.
AI was still in the bedroom, the second one on the thing there, we were making the call in the bedroom.
QWho was in the lounge room at that stage.
ALeticia, Brucy, I can't say - and myself, yeah.
QThe men that had been -
AKristy.
QThe men that had been in the lounge room with the weapons that had been hitting Bruce, where were they at that stage.
AStill over Bruce and I heard the door went after I finished making the phone call.
QWere they there when you made the phone call.
AYep.
QIn the background of the call we could hear what sounded to me at least as screaming, is that what you thought it to be.
AYes.
QDo you know who was making that the noise.
AI think it was Kristy I think.
QWhen you were making that phone call were there other noises you could hear, not on the tape we listened to, but there at the time, coming from the back of the house in the kitchen area.
AA. No, I was at the front of the house.
QQ. Where was your attention focused at that stage.
AA. On Bruce and my children.
QQ. When the men left, do you know what order they left -
HIS HONOUR
QWhen you made the phone call was Brucy unconscious at that stage.
AYes.
QHe had been beaten and was unconscious.
AYes.
QWere they still beating him or had they finished beating him when you made the phone call.
AThey'd finished.
QHow long had they been finished.
AI can't say.
QIt was after that you then made the phone call, is that right.
AYeah.
QHad they left the lounge room when you made the phone call, were they still milling around.
AYeah, they was running through the house.
QBut they'd finished beating him.
AYes.
QWhen in relation to having seen Grant was it you made the phone call, can you give us a sense of the time if it helps, I'm not suggesting this, think about minutes and seconds on the clock, have a look at the clock in the back of the court to try and get some sense in your mind what sort of delay there was between seeing Grant and making the phone call.
ACouple of minutes.

The 000 telephone call was admissible as part of the res gestae. A group of men were inside the house and were standing over the deceased at the time the phone call was made. Other men were running through the house and people were screaming. We reject the submission that the assertion in the “000” call that Sumner was present was inadmissible on the basis that it was an historical account rather than a contemporaneous utterance. Counsel sought to draw a distinction between the entire event and the specific sequence relating to Sumner running through the house. In our view this distinction is untenable. It fails to have regard to the rationale which justifies the admission of such evidence. We are satisfied that the drama had assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was occurring and that it ought to have been received as part of the res gestae.
Having found that the 000 call was admissible for its testimonial use, it is unnecessary to consider further the defendants’ submissions on this ground.
The Alternative Verdict to the First Count
The defendant complained that the Judge misdirected the jury in relation to the definition of an unlawful and dangerous act when directing the jury of the elements of manslaughter.
In Wilson,[18] the definition of an unlawful and dangerous act was considered by the High Court. Mason CJ, Toohey, Gaudron and McHugh JJ noted that was “an appreciable risk of serious injury is required in the case of manslaughter by an unlawful and dangerous act.”[19]
[18] Wilson v The Queen (1992) 174 CLR 313.
[19] Wilson v The Queen (1992) 174 CLR 313, 333.
The first time that the Judge dealt with the topic, he correctly stated:
Thirdly- and this is where there is a difference- it must be proved that the act or acts were dangerous. An act is dangerous for this purpose if a reasonable person, and that is you as reasonable people, you the jury, in the accused’s position would have realised his actions would expose the deceased to an appreciable risk of serious injury. In other words, the difference between manslaughter and murder is for manslaughter to be made out it does not have to be proved that he intended to cause grievous bodily harm, but if you as reasonable people find it proved what he did was dangerous in the way I have described, that would make out the charge of manslaughter.
[Emphasis added.]
However, when the Judge dealt with the topic again by reference to joint criminal enterprise, he said:
When looking at each accused if it is not proven that the accused’s own mind he was part of a plan to cause grievous bodily harm but it has been proved beyond reasonable doubt that he was part of a plan to cause a degree of harm which was dangerous by objective standards in that it exposed the deceased to an appreciable risk of harm and was unlawful and as a result of that the deceased was killed, then they would be not guilty of murder but guilty of manslaughter. So in looking at each accused the agreement in that person’s mind was not to cause grievous bodily harm but to cause harm by an unlawful and dangerous act in the way I have described in talking about one person, they would be guilty of manslaughter.
[Emphasis added.]
When the jury were excused for the day, the misdirection was brought to the attention of the Judge. As a consequence, he gave the following redirection:
So if in looking at each accused the agreement in that person’s mind was not to cause grievous bodily harm but to cause harm by an unlawful and dangerous act in the way I have described he would then be guilty of manslaughter and I told you ‘dangerous’ means it is an appreciable risk of serious harm or injury.
[Emphasis added.]
We are satisfied that the jury would have been left in no doubt, as a result of the redirection that dangerous in the context of an unlawful and dangerous act meant danger that exposed the deceased to an appreciable risk of serious harm.
A reasonable hypothesis consistent with innocence
Fitzgerald contended that both verdicts of the jury were unreasonable and could not be supported by the evidence. It was submitted that the prosecution failed to exclude a reasonable hypothesis consistent with his innocence, namely, that he was not present at the time the offences were committed. He claimed that the prosecution had not proved that he was part of a joint enterprise to cause grievous bodily harm to Mr Drover, nor that he was part of a joint enterprise to cause serious harm with intent to cause serious harm to Mr Karpany.
The question to be considered by this Court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that Fitzgerald was guilty as charged. In answering this question, this Court is obliged to review the evidence and consider whether there is a significant possibility that Fitzgerald was innocent of the crimes with which he has been convicted. If that question is answered in the affirmative, the Court will set aside the verdicts.[20]
[20] M v The Queen (1994) 181 CLR 487 at 493-494.
In Hillier,[21] Gummow, Hayne and Crennan JJ referred to the decision in M, and cited with approval the passage from M in which Mason CJ, Deane, Dawson and Toohey JJ described the role of an appellate court:[22]
It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
[Footnotes omitted.]
[21] R v Hillier (2007) 228 CLR 618.
[22] R v Hillier (2007) 228 CLR 618 at 630.
It follows that this Court is required to consider the evidence and, if the Court considers that it would be dangerous in the circumstances to allow the verdict to stand, and there is a significant possibility that an innocent person has been convicted, then the verdict is to be set aside.
The prosecution case was that Fitzgerald was one of the group of men who entered Ms Wanganeen’s home when the attacks on Mr Drover and Mr Karpany took place, and that he participated in the attacks on those persons in the home. It was accepted by the prosecution that Fitzgerald did not attend at the house earlier in the evening when the dispute which preceded the later attacks occurred.
On the occasion when the attacks took place, no person at the house identified Fitzgerald as being one of the group of men. The prosecution case relied solely on DNA evidence to establish that Fitzgerald was present at the time of the attack. The witnesses who gave evidence, some of whom identified Sumner as one of the group involved in the attack, did not identify or describe Fitzgerald as one of the group.
At the time that the entry to the home commenced, Ms Webb gave evidence that she picked up a didgeridoo in the kitchen. She does not recall who or how it was taken from her. The didgeridoo was later found by police in the lounge. This was the room in which Mr Drover was treated by ambulance officers.
The didgeridoo was forensically examined. A number of blood-like stains were revealed on the surface of the didgeridoo which returned positive reactions to a screening test for blood. However, the forensic scientist, Dr Henry, could not say definitively that the stains were blood.
A sample containing two separate blood-like stains was taken from the didgeridoo. One measured 2 millimetres by 1 millimetre, the other was 1 millimetre by less than 1 millimetre. These two stains produced a mixed DNA profile of at least two persons, one major and one minor. The major profile matched the profile of Fitzgerald. Sumner and Mr Karpany were excluded.
Other samples from the didgeridoo revealed DNA matched to the DNA of Mr Drover with a likelihood ratio of 948 to 1. A sample from the wide end of the didgeridoo was a mixed sample. A major component matched the DNA of Mr Karpany. Mr Drover and the defendants were excluded from this sample. Another sample revealed a mixed profile of three persons. Fitzgerald was excluded. A further two samples matched Mr Drover’s DNA.
Sumner gave evidence. He denied being present at the house when the attack on the occupants occurred. Sumner said that he knew Fitzgerald from training at the gym, and that he had only met him seven or eight times, but did not know him well.
Sumner gave evidence that earlier in the evening of 18 June 2011 he had been at the gym at a boxing tournament. He said that Fitzgerald was at the tournament. Sumner gave the following evidence:
QDid you speak to Mr Fitzgerald on the night of the boxing tournament.
AYes, walked up said hello and shook his hand.
In cross-examination, the following questions and answers were given:
QAnd then what’s the sequence of events with you catching up with Mr Fitzgerald.
AYeah just seen him walk in, so I went up and said hello and that, shook his hand.
QDid you have a chat with him.
AYeah had a chat yeah.
...
QHow long did all this take.
ANot long it was only quick.
QDid you give him a hug or something.
AYeah I shook his hand and put my arm around him.
QHow did you put your arm around him.
AJust grabbed his hand and put my arm round him.
...
QDid you have any contact with Mr Fitzgerald after that.
AYeah when I said ‘See you’.
QAny physical contact with him.
AHandshake, ‘See you’.
Sumner claimed that he shook hands with at least ten people that evening, most of them as he was leaving the boxing tournament. During the prosecution case, the Crown had tendered a DVD containing recorded video footage of the boxing tournament. Sumner and Fitzgerald were each identified in that footage. The footage did not show their shaking hands, but there was no challenge by either the Crown or Fitzgerald to Sumner’s evidence quoted above that he shook hands with Fitzgerald on two occasions at the boxing tournament.
Sumner gave evidence that later that evening he was taken to Hogarth Road near Ms Wanganeen’s home. He said that he was at the party for quite some time, long enough to drink seven cans of vodka mix.
Sumner claimed that a number of people were there, including his father and also a number of witnesses called at the trial. He said that he spoke and mingled with various people at the party. At one stage he engaged in play fighting with his cousins. Sumner said that, during the evening, he fought with his father. He called his mother to come and pick him up. Mr Sumner said that, during the fight with his father, he was kicked by someone to the side of his face. He then ran and hid at a bus stop. While at the bus stop, his mother arrived and, eventually, he and his mother left and went to her home at Gawler West.
As earlier noted, several witnesses who had been at the party at Hogarth Road gave evidence concerning the events at the party. They gave evidence that Sumner attended at the party, mingled with various persons present, engaged in play fighting with his cousins and was involved in a fight with his father and with the deceased. They gave evidence that Sumner’s jaw was fractured by his father. Sumner also gave evidence that his jaw was fractured by his father and that he had blood on him.
To the extent summarised above, the evidence of what occurred involving Sumner at the party was consistent with the evidence given by the witnesses called by the Crown and was not challenged by either the Crown or by Fitzgerald.
Sumner did not give evidence that he touched the didgeridoo at all while he was at Hogarth Road. No suggestion was put to him by counsel for Fitzgerald that he touched the didgeridoo on that occasion or that he may have done so.
Sumner gave evidence that when he arrived at his mother’s home he showered and washed himself. He then took some pain killers and went to sleep. He awoke next morning when it was daylight. He denied returning to Ms Wanganeen’s house.
As earlier noted, Fitzgerald did not give evidence.
Dr Henry, a forensic scientist, an expert in DNA analysis, gave evidence. There was no challenge to her expertise with respect to any aspect of her evidence.
Dr Henry explained that DNA can be deposited in blood, saliva, perspiration, or from hair. DNA can be deposited in many ways, including by touching an object. This can occur by depositing skin cells on the object. Dr Henry said that the stain on the didgeridoo was a blood-like stain which tested positive for blood. However, it is not a decisive test for blood, because other substances can give positive reactions to a blood screen test. Dr Henry was asked about the stain on the didgeridoo which tested positive for Fitzgerald’s DNA:
QAre you able to say whether the reddy-brown stains you described are in fact blood.
AI can’t say for certain that they are blood but there is every indication that they are both from the visual appearance, have the visual appearance of blood, they are the colour of blood and they have also given the positive test to our screen test for blood.
QIs the fact that you got a DNA profile from the sample taken from that reddy‑brown substance on the didgeridoo does that itself tell you it’s blood or not.
AIt can’t tell us for sure that the DNA may not have come from the blood, it may have come from some DNA on the object under the stain but there is a level of inference as well that if we obtain a DNA profile from a bloodlike stain sample that the DNA has come from there.
QIn that context is a scenario to explain the major profile and the minor profile from the area samples, is an explanation for that that there may have been some contact DNA left on the didgeridoo before the blood is deposited on top of it.
AThat’s one possibility, yes.
...
QIn that scenario would that, assuming it’s the reddy-brown stain is in fact blood, would that explain why you get a major profile and a minor profile.
AIt’s possible because we know that blood is going to be a richer source of DNA than contact or trace DNA so the fact that we have a major and a minor component to that profile it is quite possible that the person that’s contributed the most DNA to that sample was the person who would have left the blood there.
QIf we try to look at it the other way, is it possible that the major component of the DNA profile could have come from some trace material, skin, epithelial cells left before the blood, assume it’s blood, was deposited over the top.
AIt’s possible but we rely on the fact that we didn’t obtain DNA from that bloodstain, the reasons for that might be that it’s not blood, the second reason might be that it’s not human blood. We use systems that are specific for human DNA so if the blood was from an animal like a dog or a cat we wouldn’t generate a DNA profile from that. Another explanation why we might not obtain a DNA profile from the blood is that the DNA is that sample is degraded, broken down into small pieces, which means we can’t use it for profiling. So in that scenario there is a possibility that both of the sources of the DNA in that sample came from trace DNA.
...
QB is the cutting where there is a likelihood ratio match of Mr Fitzgerald.
AYes, the DNA profile obtained, again, was a mixture of two contributors with the major component matching Mr Fitzgerald.
QYou say two, is it possible there’s more than two contributors.
AIt’s possible there is more than two, sometimes what we have is overlap between some of the numbers in the profile. But given the appearance of that profile, we interpret that as coming from two individuals, but we can’t exclude the possibility that it’s come from three individuals.
Dr Henry explained that a mixed profile occurs when two or more people leave their DNA in the same area on an object. During cross-examination, Dr Henry was asked about what is known as secondary transfer of DNA. She accepted as a possibility that DNA could be on the didgeridoo by secondary transfer. The possible scenario that Fitzgerald at some stage earlier came into contact with someone who later that night was in the house who then transferred Fitzgerald’s DNA to the didgeridoo was addressed as follows:
QYou can’t [exclude] that if Mr Fitzgerald had shaken hands with an unknown person some hours before this incident and that person had touched the didgeridoo Mr Fitzgerald’s cells might have been placed on the didgeridoo by that second person.
AIt is a possibility, yes.
QThat would be a stronger possibility would it if indeed the primary transfer from Mr Fitzgerald to the second person was not just a handshake but a handshake when Mr Fitzgerald might have previously for example touched his mouth and transferred some saliva onto his hand.
AYes in my opinion just because saliva is a richer source of DNA the chance of a transfer whilst still minimal would be higher with saliva.
QBut you can’t preclude that as being a possibility that Mr Fitzgerald’s DNA was transferred to Mr X for example.
ANo, I can’t.
QAnd you can’t preclude it’s a possibility that Mr X then transferred Mr Fitzgerald’s DNA to the didgeridoo.
ANo, I can’t.
QIs one of the reasons you can’t exclude that because at this current time the science in relation to transfer primary and secondary transfer of DNA is simply in its infancy.
AIt’s in its infancy and also the literature demonstrates examples of secondary transfer occurring under certain experimental conditions so as scientists we are aware that that phenomenon can happen.
QThere was an example of where a woman was seen to be the person who touched an object in fact the profile was that of a person that had transferred his DNA to her.
AYes, the example you are referring to is where a female transferred another male’s DNA onto an item without leaving any of her own DNA there. To put that into context that’s one example in many, many papers looking at secondary transfer. Generally speaking, when you have secondary transfer you also get transfer of DNA from the person who is transferring the DNA so the primary transfer and generally that person is a major contributor to that profile and the secondary transfer is the minor component and in the literature then when you are looking at secondary transfer it’s occurring maybe 1 to 5% of the time in the total number of experiments, so it occurs very infrequently.
...
QSo that the fact that if Mr Fitzgerald had met someone at 11.30 or 10 o’clock that night and transferred his DNA to Mr X that wouldn’t preclude Mr X transferring Mr Fitzgerald’s DNA seven or eight hours later.
AIt is one possibility. Yes.
HIS HONOUR
QBut let’s get this into perspective this primary and second transfer. Please correct me if I’m wrong but your evidence is on the experiments that have been done primary transfer is the more likely.
AYes, it’s far more likely that [sic] secondary transfer. Secondary transfer occurs very infrequently.
QIf you have secondary transfer you would invariably find the donor of the primary transfer being in greater quantities, is that what the experiments show.
AYes, all the profiles I have read show the person doing the primary transfer with the exception of the one example of that.
...
[Counsel]
QJust to be clear, you can’t preclude as a possibility, can you, that if Mr Fitzgerald had spent a number of hours with people, shaking their hands, drinking beers or drinks out of cups, bottles, glasses, that he could have transferred some of his DNA to a second person.
AThat’s possible, yes.
QAnd you can’t preclude from that scenario the possibility that some of that DNA that was transferred was transferred not just from skin cells but from saliva for example.
AThat’s one possibility, yes.
QAnd that’s one of the problems of this area is that you can’t actually say or you aren’t provided the information as to how that primary transfer might have taken place.
AThat’s correct.
QAnd that might be a difficulty in this area of DNA science for some time to come.
AYes.
...
XXN
QYou can’t deny as a possibility that if Mr Fitzgerald’s DNA was transferred to an unknown person on that evening seven or eight hours prior to this incident can you.
AThat’s one possibility for the DNA being there, but as I said in my evidence secondary transfer is very unlikely.
QAnd it’s also possible therefore that that person, If [sic] they attended at the scene and touched the didgeridoo would have transferred their DNA to this didgeridoo and Mr Fitzgerald’s.
AIt’s possible, yes.
QWhat I’m suggesting to you is that unless you know the circumstances of the first transfer, as to whether it contained skin cells and saliva or simply skin cells, you can’t really comment on the likelihood of that second transfer taking place.
AAll I can say is secondary transfer is unlikely to occur, but when you’re dealing with transfer of saliva, because it’s a richer source of DNA, in my opinion the transfer would be more likely to occur but in a general sense, as I said, secondary transfer is unlikely to occur.
[Emphasis added.]

The issue of whether there is a sufficiently reliable basis for expert evidence to be given on the topic of secondary transfer DNA was discussed in Weller.[23] In that case, there were a number of possibilities as to how DNA might have been transferred. There were four possibilities of primary transfer, and one possibility of secondary transfer, being the defendant having touched a pair of underpants from which DNA was transferred. Two scientists had given evidence, one for the prosecution and one for the defence.
[23] R v Weller Court of Criminal Appeal, Criminal Division, Case No. 2008/4666/B3 in the Court of Appeal in England.
The common ground between the experts in Weller was that one could use scientific research as a basis for considering whether, in the circumstances of a particular case, inferences could be drawn as to the methods of transfer. The Court examined relevant scientific studies which had considered the transfer and persistence of DNA. The Court also heard evidence from two experts. The Court observed that, in evaluating whether there is sufficiently reliable scientific basis for expert evidence to be given, a jury is entitled to take into account the experience of experts, and that experience can be tested in evidence, both in examination and cross-examination. The Court considered that it was perfectly proper for a jury to rely upon an expert who gave evidence based, not only upon their reading of published works, but also upon their experience.
The Director submitted that the evidence of Dr Henry addressing secondary transfer was clearly put to the jury. It was contended that the fact that Dr Henry accepted the possibility that DNA can be the subject of secondary transfer does not lead to the conclusion that it was a reasonable possibility. Dr Henry’s opinion, as earlier extracted, was that secondary transfer occurs very infrequently, and in the present case was very unlikely.
Dr Henry’s evidence is to be considered, having regard to the evidence of Sumner. The only evidence of contact between Sumner and Fitzgerald was of a handshake earlier in the evening at the gymnasium. According to Sumner, he then attended at Hogarth Road, where he became involved in an altercation with his father. There was no suggestion that, during his attendance at Hogarth Road, he had any contact with the didgeridoo.
The hypothesis consistent with innocence identified by Fitzgerald at trial and on appeal involved the following sequence of events. When Fitzgerald shook Sumner’s hand at the boxing tournament on the evening of 18 June 2011, Fitzgerald’s skin cells containing his DNA were transferred onto Sumner’s hand. Some of those cells remained on Sumner’s hand when he travelled to Hogarth Road and throughout his mingling with people at the party and his play fighting and fighting with his father and the deceased. Some skin cells remained on Sumner’s hand throughout his journey to his mother’s house. Some skin cells remained on Sumner’s hand while he travelled back to Hogarth Road and up to a point at which he picked up or touched the didgeridoo. Some skin cells were transferred from Sumner’s hand to the didgeridoo. There was other DNA in the area from which Fitzgerald’s DNA was extracted. However, Sumner was specifically excluded as a contributor of that DNA.
The hypothesis that Fitzgerald’s DNA was transferred by secondary transfer onto the didgeridoo depended upon the occurrence of a succession of unlikely events. The jury had available to it Dr Henry’s evidence concerning secondary transfer and the unlikelihood of each step in that succession of events. The transfer of DNA by a handshake is comparatively rare. It was necessary that sufficient quantities of Fitzgerald’s DNA remained on Sumner’s hand over the course of approximately eight hours during which time Sumner had contact with others at the boxing tournament, travelled to Hogarth Road, became involved in a fight with his father and the deceased, returned to his mother’s house, possibly showered and washed himself and then returned to Hogarth Road. The hypothesis required that Fitzgerald’s DNA was transferred by Sumner to the didgeridoo when Sumner picked up the didgeridoo at about 6.00 am. It was necessary that none of Sumner’s DNA was transferred to the didgeridoo when he picked it up, notwithstanding that this would have been a primary transfer and it was unlikely that Sumner’s DNA would not have been transferred if he transferred Fitzgerald’s DNA to the didgeridoo. The combination of this sequence of events occurring was, on Dr Henry’s evidence, extremely unlikely.
There was no evidentiary basis for the jury to conclude that there was a reasonable possibility that Fitzgerald’s DNA was transferred on to the didgeridoo by an unknown third person.
In the circumstances, it was open to the jury to conclude beyond reasonable doubt, as it did, that Fitzgerald’s DNA was deposited on the didgeridoo as a result of direct contact by Fitzgerald.
We observe that the case for Fitzgerald was that the prosecution had failed to establish his presence at the scene at the relevant time beyond reasonable doubt. No evidence was adduced to deny that Fitzgerald was present. We accept that there was no requirement or onus upon Fitzgerald to adduce positive evidence of his absence from the scene. The Judge directed the jury correctly in this regard.
The jury clearly rejected the defence argument that there was a hypothesis consistent with Mr Fitzgerald’s innocence. They were entitled to so conclude.
Once the jury was satisfied beyond reasonable doubt that Fitzgerald was present at the time, it was open to them to conclude that he was a member of the group that entered either through the front door or the rear door. There was evidence of extensive damage to the front door, and that both the front and rear doors had been bashed in. There was evidence that weapons were being carried by members of the group.
The occupants of the house observed the group entering. There was evidence from which the jury could conclude that the members of the groups that entered from the rear and the front door were intent upon assaulting Mr Drover and Mr Karpany and causing those persons grievous bodily harm. Once the jury was satisfied beyond reasonable doubt that Fitzgerald was part of the group, it was open to the jury to conclude that Fitzgerald was present at the relevant time, that he participated in the attacks on Mr Drover and Mr Karpany, and that he had the requisite intent in each case.
Conclusion
We would dismiss the appeals of both Sumner and Fitzgerald.
BLUE J:
I agree that the appeals should be dismissed. Subject to one matter, I agree with the reasons for judgment of Gray and Sulan JJ.
Basic and aggravated forms of offence
The trial Judge directed the jury that there were four elements of the offence the subject of count 2 being causing serious harm with intent to cause serious harm. He directed the jury that, to establish those elements, it was essential for the Crown to prove beyond reasonable doubt that the offence was committed in implementation of a joint enterprise to cause serious harm. He directed the jury that the Crown alleged that there were present one or both of two aggravating factors, namely use of an offensive weapon and the offence being committed in company with one or more other persons. He directed the jury that, before they could find the charge proved, they had to find beyond reasonable doubt that one or both of those aggravating factors were present.
When the jury’s verdict was ultimately taken, the jury was asked whether they found each defendant guilty or not guilty of aggravated causing harm with intent to cause serious harm. They were then asked to identify the aggravating factor or factors found established. They identified the offence as having been committed in company.
On appeal, the defendants complain of the Judge’s directions concerning aggravation and the manner in which the offence was left to the jury. The first complaint is that the offence in its basic form was not left to the jury when it ought to have been.[24] The second complaint is that the information incorrectly stated the offence in the second count to be “aggravated causing serious harm with intent to cause serious harm” etc when there is no such offence in section 23 of the Criminal Law Consolidation Act 1935 (SA) (“the Act”).[25]
[24] Sumner Grounds 2 and 3. Fitzgerald Grounds 3 and 4.
[25] Sumner Ground 4. Fitzgerald Ground 5. A second limb of this Ground, and Sumner Ground 1 and Fitzgerald Ground 2 were not advance at the hearing of the appeal.
The position taken by the defendants on appeal is diametrically opposite to the position they took at trial. In the course of his summing up, the Judge foreshadowed in the jury’s absence that he proposed not to leave the offence in its basic form to the jury because a finding of joint enterprise (essential for guilt of the offence in its unaggravated form) would necessarily connote that the offence was committed in company. Counsel for the defendants explicitly agreed to that course.
The following exchange took place between the Judge and counsel:
Mr Pearce: … it is possible in some situations for the jury to say guilty of causing                   serious harm with intent to cause serious harm but not guilty of the                 aggravated feature, that’s another of the alternatives effectively. Of course         on the facts of this case that’s a nonsense …
…
Mr Pearce: … The charge is causing serious harm with intent, but it is aggravated by                one or other of those aggravating features. The irony of this case is                   they’ll only find someone guilty of that count if they are satisfied that he was              there as part of a joint enterprise.
His Honour:        I’m going to leave it on that basis. … just serious harm is not open on the               facts of this case because of joint enterprise.
Mr Pearce: That’s right effectively it would be a perverse verdict.
His Honour:         I don’t think I should leave an alternative.
Ms Spence: No.
Mr Charman: No I agree with your Honour’s direction.
One offence or two?
On appeal, the defendants’ preliminary contention is that, on its proper construction, section 23(1) of the Act creates a single offence and not two separate offences of causing serious harm and aggravated causing serious harm. Counsel for the Director of Public Prosecutions does not take issue with that construction and indeed had put to the Judge at trial that there was a single offence.
Section 23 of the Act provides as follows:
Causing serious harm
(1)     A person who causes serious harm to another, intending to cause serious harm, is      guilty of an offence.
Maximum penalty:
(a)     for a basic offence—imprisonment for 20 years;
(b)     for an aggravated offence—imprisonment for 25 years.
(2)     If, however, the victim in a particular case suffers such serious harm that a penalty    exceeding the maximum prescribed in subsection (1) is warranted, the court may,        on application by the Director of Public Prosecutions, impose a penalty exceeding the prescribed maximum.
(3)     A person who causes serious harm to another, and is reckless in doing so, is guilty     of an offence.
Maximum penalty:
(a)     for a basic offence—imprisonment for 15 years;
(b)     for an aggravated offence—imprisonment for 19 years.
Section 5AA of the Act relevantly provides as follows.
(1)     Subject to this section, an aggravated offence is an offence committed in 1 or more of the following circumstances:
(a)     the offender committed the offence in the course of deliberately and   systematically inflicting severe pain on the victim;
(b)     the offender used, or threatened to use, an offensive weapon to commit, or             when committing, the offence;
…
(h)     except in the case of an offence against Part 3A, the offender committed the           offence in company with 1 or more other persons (including persons who are                children);
…
(3)     If a person is charged with an aggravated offence, the circumstances alleged to        aggravate the offence must be stated in the instrument of charge.
(4)     If a jury finds a person guilty of an aggravated offence, and 2 or more aggravating    factors are alleged in the instrument of charge, the jury must state which of the      aggravating factors it finds to have been established (but a failure to comply with this subsection does not affect the validity of the jury's verdict).
…
(6)     This section does not prevent a court from taking into account, in the usual way,      the circumstances of and surrounding the commission of an offence for the purpose      of determining sentence.
Examples—
1      A person is charged with a basic offence and the court finds that the offence was      committed in circumstances that would have justified a charge of the offence in its      aggravated form. In this case, the court may, in sentencing, take into account the circumstances of aggravation for the purpose of determining penalty but must (of       course) fix a penalty within the limits appropriate to the basic offence.
2      A person is charged with an aggravated offence and the court finds a number (but     not all) of the circumstances alleged in the instrument of charge to aggravate the offence have been established. In this case, the court may, in sentencing, take into     account the established circumstances of and surrounding the aggravated offence      (whether alleged in the instrument of charge or not) but must not (of course) take         account of circumstances alleged in the instrument of charge that were not      established.
Section 5(1) of the Act includes the following definitions:
"aggravated offence"—where a provision differentiates between the penalty for an aggravated offence and the penalty for a basic offence, the reference to an aggravated offence is a reference to the offence in its aggravated form (see section 5AA);
"basic offence"—where a provision differentiates between the penalty for an aggravated offence and the penalty for a basic offence, the reference to a basic offence is a reference to the offence in its non-aggravated form (see section 5AA).
It is a question of construction of section 23 in conjunction with section 5AA whether section 23(1) creates one offence or two offences.[26] The general scheme of the Act is to use separate provisions (either sections or sub-sections) to create separate offences. For example, section 23(1) creates an offence of causing serious harm intending to cause serious harm; whereas section 23(3) creates an offence of causing serious harm being reckless in so doing. Each of sub-sections 23(1) and 23(3) are expressed to create “an offence” as opposed to two separate offences.
[26] Kingswell v The Queen (1985) 159 CLR 264 at 275-276 per Gibbs CJ, Wilson and Dawson JJ and 282-283 per Mason J.
It is true that the maximum penalty specified in respect of sub-sections 23(1) and 23(3) depends on whether the offence is characterised as a “basic offence” or an “aggravated offence”. The mere fact that different maximum penalties are prescribed depending upon different circumstances does not necessarily result in two separate offences being created.[27]
[27] Ibid; R v Hietanen (1989) 51 SASR 510 at 512 per King CJ (Mohr J agreeing).
Section 5(1) of the Act provides that a reference to a “basic offence” is a reference to the offence in its non-aggravated form; whereas a reference to an “aggravated offence” is a reference to the offence in its aggravated form. This suggests that there is a single offence the offence which can exist in one of two forms, either aggravated or non-aggravated.
The introductory wording of section 5AA(1) provides that an aggravated offence is an offence committed in one or more defined circumstances. This wording suggests that there is a single offence. The various paragraphs of section 5AA(1) also refer to the offence.
Section 5AA(3) provides that, where a person is charged with an aggravated offence, the circumstances alleged to aggravate the offence must be stated in the instrument of charge. This uses the terminology the offence which suggests that there is a single offence. If two separate offences had been created, section 5AA(3) would be otiose because the circumstances of aggravation would, ex hypothesis, be elements of the offence itself.
The Act was amended with effect from 15 May 2006 by the Statutes Amendment and Repeal (Aggravated Offences) Act 2005 (SA) to introduce a generalised regime of maximum penalties at two different levels depending on whether a given offence was committed in defined aggravating circumstances. The generalised regime was achieved by introducing section 5AA to define aggravating circumstances generic to all offences or classes of offences[28] and then to amend the substantive provisions of the Act creating offences to prescribe one maximum penalty for a basic offence and a higher maximum penalty for an aggravated offence.
[28] To the extent they might be applicable to any given offence.
The generic approach adopted by the 2005 amendments replaced the previous individualised regime whereby an individual provision creating an individual offence often provided for a different penalty depending upon the existence of prescribed circumstances of aggravation specific to that individual offence. An example of the latter was common assault under section 39 of the Act. Section 39(1) provided that the penalty for common assault per se was imprisonment for up to two years but where the victim was a family member of the offender, the penalty was a term of imprisonment up to three years. After the Act was amended in 2005, section 5AA(1)(g) defined a circumstance of aggravation as being that the victim was known to be a defined family member of the offender (spouse, domestic partner, child, etc) and the provision creating the offence of assault (now section 20) provided for a penalty for assault per se of imprisonment of up to two years and for an aggravated offence (eg where the victim was a family member) of up to three years.[29]
[29] Criminal Law Consolidation Act 1935 (SA) s 20(3)(a) and (b).
As the evident purpose of the 2005 amendments was to generalise and standardise circumstances of aggravation, there is no reason to attribute to the legislature an intention to create two separate offences if the previous individualised regime created only a single offence under a given provision.
There are an established set of principles which apply to elements of an offence. They include, for example, the presumption (which may have greater or lesser or no force depending on the provision) that mens rea is required, principles in relation to amendment, principles in relation to alternative verdicts and the doctrine of duplicity. If each of the different circumstances of aggravation prescribed by section 5AA are treated as elements of the offence itself, it might give rise to unintended and unforeseen consequences and difficulties.
Section 5AA(1) contains 13 separate paragraphs identifying disparate circumstances of aggravation which generally apply to all offences created by the Act.[30] It is an unlikely intention to impute to the legislature to create an offence, such as aggravated causing serious harm with intent to cause serious harm, which contains a small number of fixed elements (the four elements of the basic offence prescribed by section 23(1)) together with any one of 13 disparate elements to complete the offence. This is especially so given that it will not always be clear which of the 13 different aggravating circumstances are capable of applying to a specific offence.
[30] Section 5AA(1) contains 15 paragraphs, but two are confined to specific Parts of the Act.
The evident purpose of differentiating between an offence in its aggravated and non-aggravated forms is to provide for a higher maximum penalty if there are present circumstances of aggravation. That purpose is linked to historical sentencing principles that the penalty for a single offence should be higher where there are present circumstances of aggravation.[31] That purpose is not furthered by the creation by the legislature of two separate offences.
[31] This is recognised by s 29A(3)(b) of the Criminal Law (Sentencing) Act 1988 (SA).

In Ross v The Queen,[32] section 343 of the Criminal Code (Qld) created an offence of assault and provided for imprisonment up to six months. Section 344 provided for imprisonment up to 12 months if the assault was of an aggravated nature such that the offender could not be sufficiently punished under section 343. Circumstances of aggravation were defined to be that it was a sexual assault or that the victim was female, or a male child under 14. Section 344 then provided:
An offender shall not be punished as for an assault of an aggravated nature within the meaning of this section unless he has been charged therewith and the circumstance or circumstances of such aggravation have been stated in such charge.
The High Court held that only a single offence of assault was created.[33]
[32] (1979) 141 CLR 432.
[33] Ibid at 437 per Gibbs J (Barwick CJ, Stephen, Mason and Aickin JJ agreeing).
In Kingswell v The Queen,[34] section 235(2) of the Customs Act 1901 (Cth) imposed three different penalties in respect of certain offences created by three different sections of the Customs Act involving imported narcotic substances. The penalty depended on whether the narcotic substance was a commercial quantity (imprisonment for life), trafficable quantity (imprisonment up to 25 years) or otherwise (imprisonment up to two years). The High Court held that only a single offence was created. Gibbs, Wilson and Dawson JJ (Mason J relevantly agreeing) said:
An examination of the provisions of the Customs Act does not support the argument that the Parliament intended that s. 235(2), read together with each paragraph of s. 233B(1), should have the effect of creating a number of distinct offences whose elements are to be found described partly in s. 233B(1) and partly in s. 235(2). The words of s. 233B(1) and (3) could hardly indicate more plainly that it was intended that each paragraph of s. 233B(1) of itself creates an offence and that a person who is guilty of such an offence is punishable on conviction as provided by s. 235. Consistently with this intention, s. 235(2) speaks of "an offence against ... sub-section 233B(1)", and provides a range of penalties for any such offence. … The proper conclusion is that the Parliament intended by s. 233B(1)(cb) to create one offence and to provide by s. 235(2) and (3) a range of penalties applicable to that offence in certain circumstances. The range is large. Section 235(2)(e) provides the lowest maximum penalty; par. (c) describes circumstances of aggravation of the offence which could increase the maximum penalty to imprisonment for life and par. (d), which is subject to sub-s. (3), describes other circumstances of aggravation that entail liability to penalties less than the maximum provided by par. (c) but greater than those provided by par. (e).[35]
[34] (1985) 159 CLR 264.
[35] Ibid at 273-274 per Gibbs CJ, Wilson and Dawson JJ (Mason J relevantly agreeing). Brennan J at 293 and Deane J at 297 reached a similar conclusion as a matter of statutory construction, but held that section 80 of the Constitution rendered the provisions invalid.
In R v Hietanen,[36] this Court considered the offence of causing bodily harm by dangerous driving. Section 19a(4) of the Act provided that the penalty (for a first offence) was up to 10 years imprisonment if a motor vehicle was used in the commission of the offence and grievous bodily harm was caused, four years imprisonment if a motor vehicle was used in the commission of the offence but grievous bodily harm was not caused, and two years imprisonment otherwise. This Court held that only a single offence was created notwithstanding that there were higher maximum penalties if there were present circumstances of aggravation. King CJ (Mohr J agreeing) said:
I think that Parliament has plainly expressed its intention to create but one offence comprising the elements prescribed in subs (3) and not three offences distinguished by the criteria for the differing maximum penalties laid down in subs (4) … There is but one offence comprising the elements prescribed by subs (3). The maximum penalty for the commission of that offence differs according to whether the conduct constituting the commission of the offence is accompanied by one or more of the circumstances stipulated in subs (4).[37]
[36] (1988) 51 SASR 510.
[37] Ibid at 512 per King CJ (Mohr J agreeing).
At the same time as the 2005 amendments, section 19A was amended.[38] It continued to provide three different maximum penalties according to the same criteria as before, but introduced an additional penalty differentiation according to whether the offence was a basic offence or an aggravated offence. This represented a relatively minor modification to the penalty levels and there is no reason why section 19A should be construed after the 2005 amendments to create multiple offences according to the penalty levels when it was not construed in that manner before the 2005 amendments.
[38] By the Statutes Amendment (Vehicle and Vessel Offences) Act 2005 (SA) s 9.
As part of the 2005 amendments, some sections provided for different levels of maximum penalty according to the specific circumstances of aggravation. For example, section 20(3) now provides for a maximum penalty of imprisonment of two years for a basic offence, three years for an aggravated offence and:
for an offence aggravated by the use of, or a threat to use, an offensive weapon – imprisonment for 4 years.
The highest maximum penalty of four years applies to a circumstance of aggravation specified by section 5AA(1)(b) but section 20(3) treats the offence as “an offence aggravated by the use of, or a threat to use, an offensive weapon”. This suggests that the three different penalties specified by section 20(3) are all in respect of the same offence.
Failure to leave offence in its basic form to the jury
It was an essential element of the Crown case against the defendants on count two that they were acting pursuant to a joint enterprise and specifically that they were parties to an agreement to cause serious harm and that they were both present at the Elizabeth South house to implement that agreement. This was for two reasons. First, on the Crown case, neither of the defendants personally caused serious harm to Mr Karpany: that was caused by another, unknown, person who assaulted him with the garden fork. Secondly, there was no evidence on the Crown case that the implementation of the posited joint enterprise agreement by the defendants involved more than their physical presence at the Elizabeth South house.
If the jury was persuaded to accept the Crown case beyond reasonable doubt in this respect, it necessarily followed that the defendants committed the offence “in company” (within the meaning of section 5AA(1)(h) of the Act) with the person who struck Mr Karpany. The Judge correctly concluded that it was impossible for the jury to find that the offence had been committed in its unaggravated form without its necessarily following that the offence had been committed in its aggravated form by reason of having been committed in company. The Judge put that view to counsel for the defendants and they agreed. The Judge foreshadowed that he would direct the jury accordingly and they agreed.
In those circumstances, it was entirely appropriate for the Judge to leave to the jury the single question whether they were persuaded beyond reasonable doubt that the offence in its aggravated form had been committed.
On appeal, the defendants contend that it is possible to imagine circumstances in which an offence is committed pursuant to a joint enterprise but not in company. For example, a party to a joint enterprise could participate in the offence in implementation of the joint enterprise without necessarily being present in any sense at the scene of the crime. In those circumstances, it would ordinarily be necessary to leave to the jury both the offence in its basic form and in its aggravated form. That is not so on the facts of this case.
Charge of offence not known to law
The wording of the second count contained in the Information was as follows:
Statement of Offence
Aggravated Causing Serious Harm within Intent to Cause Serious Harm. (Section 23(1) of the Criminal Law Consolidated Act, 1935)
Particulars of Offence
Grant Andrew Sumner and Daniel Glenn Fitzgerald on the 19th day of June 2011 at Elizabeth South, caused serious harm to Leon Maxwell Gilbert Karpany, intending to cause him serious harm.
It is further alleged that Grant Andrew Sumner and Daniel Glenn Fitzgerald used offensive weapons, namely a garden fork and a pole, when committing the offence.
It is further alleged that Grant Andrew Sumner and Daniel Glenn Fitzgerald committed the offence in company with each other and with other persons.
Section 5AA(3) required the circumstances alleged to aggravate the offence to be stated in the instrument of charge. The last two paragraphs of the second count were in compliance with that requirement. The use of the adjective “aggravated” at the commencement of the second count gave additional notice to the defendants that it was alleged that the offence had been committed in its aggravated form. The wording of the second count was appropriate to charge the offence of causing serious harm with intent to cause serious harm in contravention of section 23(1) of the Act. The second count charged an offence known to law. The Judge left to the jury an offence known to the law.
Conclusion
The grounds of appeal involving the basic and aggravated forms of causing serious harm with intent to cause serious harm fail. For this reason, and otherwise for the reasons given by Gray and Sulan JJ, the appeals should be dismissed.

Aggravated Causing Serious Harm with Intent to Cause Serious Harm. (Section 23(1) of the Criminal Law Consolidation Act, 1935).

Particulars of Offence

Grant Andrew Sumner and Daniel Glenn Fitzgerald on the 19th day of June 2011 at Elizabeth South, caused serious harm to Leon Maxwell Gilbert Karpany, intending to cause him serious harm.
It is further alleged that Grant Andrew Sumner and Daniel Glen Fitzgerald used offensive weapons, namely a garden fork and pole, when committing the offence.
It is further alleged that Grant Andrew Sumner and Daniel Glen Fitzgerald committed the offence in company with each other and with other persons.