R v Winston

[1994] QCA 484

IN THE COURT OF APPEAL [1994] QCA 484

SUPREME COURT OF QUEENSLAND

C.A. No. 229 of 1994

Brisbane

[R. v. Winston]

THE QUEEN

v.

STEVEN DOUGLAS WINSTON

Appellant

Macrossan CJ
Pincus JA

Ambrose J

Judgment delivered 17/11/1994

Reasons for Judgment - The Court

Appeal against conviction dismissed

CATCHWORDS:CRIMINAL LAW - conviction - accessory after the fact - appellant convicted of receiving murderer - meaning of receives - whether positive act required - meaning of positive act discussed - s.10 Criminal Code

Counsel:  Mr J.F. Claire for the Appellant

Mr D. Bullock for the Crown

Solicitors:  Legal Aid Office (Qld) for the Appellant

Director of Prosecutions for the Respondent

Hearing Date:25/08/94

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 17/11/1994

The appellant seeks to challenge his conviction under s.10 of the Criminal Code on a charge of receiving one Clarkson in order to enable him to escape punishment knowing that he had murdered John Kelly. The Code section provides for an offence which corresponds to what at Common Law has been embraced by the concept of accessory after the fact, a description which appears in the heading to the Code section. The portion of Section 10 relevant for our purposes reads as follows:

"Accessories after the fact. A person who receives or assists another who is, to his knowledge, guilty of an offence, in order to enable him to escape punishment, is said to become an accessory after the fact to the offence."

The appellant previously successfully appealed against the sentence imposed upon his conviction and a term of eight years imprisonment was substituted for that of eleven years imposed by the trial judge. Time for appeal being extended, the appellant now seeks to challenge the conviction itself.

At the trial the appellant, on an indictment containing a number of counts, had been charged with the murder of two persons, John Kelly and Olveena Kelly who performed duties as security guards at a Yandina depot conducted by Humes Pipes. He was found not guilty on those murder charges. Two alternative counts were included in the indictment charging the appellant as accessory after the fact in that knowing that Clarkson had murdered each of the two persons killed, he received Clarkson in order to enable him to escape punishment. He was found guilty as accessory in respect of Clarkson's murder of John Kelly, and not guilty in respect of Olveena Kelly's murder.

The trial judge ruled and then directed the jury that the appellant could be regarded as having "received" Clarkson when, at a time after Clarkson had murdered John Kelly at the depot, the appellant, in a vehicle driven by another man, Ferguson, had followed a vehicle driven by Clarkson from the depot to a location near Wappa Falls and Clarkson entered the vehicle containing Ferguson and the appellant. The Crown case was that the receiving occurred at this spot when Clarkson was admitted into the following vehicle and then driven towards the house where Clarkson, Ferguson, the appellant, and other persons were residing. The vehicle which Clarkson had driven from the depot to Wappa Falls was the murdered security guard's vehicle. Clarkson had apparently decided to remove it from the scene of the crime and then abandon it.

The question arising on the appeal was whether the appellant's involvement in the activity described could, within the meaning of s.10, amount to a receiving by him of Clarkson at Wappa Falls. Counsel for the appellant placed some emphasis upon the fact that the appellant had not been the driver of the car from the depot to Wappa Falls or from that point onwards. One question is whether this fact has any significance.

Evidence led at the trial supported the following more extended version of events.

The appellant, Clarkson and Ferguson, in the evening when the offence was committed intended to steal some piping and at one point drove to the depot at Yandina to see what could be found there. It was arranged that Ferguson should remain in the car while Clarkson and the appellant entered the premises. Inside the premises the security guard John Kelly confronted the appellant and endeavoured to detain him. A struggle followed with the appellant trying to break free. Clarkson came up behind the guard and struck him hard on the head and the appellant was able to get away. While the appellant was escaping he looked back and saw Clarkson continuing to hit the guard with an object in his hand that looked like a short iron bar or something similar.

In various conversations that the appellant had with the investigating authorities, his account differed somewhat. One version which it was open to the jury to accept was that Clarkson's continued striking of the guard was very hard indeed, harder than was necessary merely to render him unconscious. As he made his escape the appellant called on Clarkson to leave also, but he saw Clarkson reaching across the body of the guard towards the guard's gun holster. The appellant then heard a number of shots. It was later discovered that the guard to whom the appellant referred, and another guard who was the wife of the first and had also been at the premises, were both shot and killed. The Crown case was that Clarkson had murdered them both.

After the appellant had escaped from the premises he joined Ferguson at the waiting vehicle. The two remained there for a time and it could be inferred that this was to give Clarkson an opportunity to join them. After an interval Clarkson did emerge. Apart from some words of criticism directed by him toward the appellant for having deserted him inside the depot, he instructed the two who were in the vehicle to wait and then to follow him. This they did when Clarkson emerged driving the security guard's vehicle.

The Crown case at the trial had endeavoured to sustain two counts of murder against the appellant. It claimed that he was involved together with Clarkson in the acts of killing, relying on s.7 for this purpose. It relied also upon s.8 claiming that the killing by Clarkson of the guards was a natural and probable consequence of the entry into the depot in the course of the plan to locate and steal piping. As has been mentioned, this part of the Crown case against the appellant did not succeed and he was also found not guilty of being an accessory after the fact in respect of the murder of the female guard. It is not necessary to delay over these issues and attention can be turned to the count where the jury brought in a guilty verdict, that is the allegation that he received Clarkson in order to enable him to escape punishment knowing that he had murdered the male guard, John Kelly.

Two matters may be inferred from events which have been mentioned. The first is that the forces of opposition within the depot had obviously been effectively defeated when Clarkson went back inside, and the second is that the continuing arrangement as it was understood amongst the three involved was that the two in the following vehicle were to travel behind Clarkson for some purpose which he had in mind. The plan crystallised when Clarkson got to Wappa Falls and abandoned one vehicle to enter the other.

On the hearing of the appeal no attempt was made to dispute the adequacy of the evidence that at relevant times the appellant knew that the murder of the male guard had occurred and that his intention to enable Clarkson to escape punishment had been demonstrated. Only the element of receiving remained in issue.

Although Ferguson has apparently been subsequently convicted on the basis that he was an accessory, it was not proved as part of the case against the appellant in these proceedings that at any material time Ferguson knew that a person within the depot had been murdered. Therefore it was not possible for the Crown to succeed in establishing a case against the appellant by showing that Ferguson received Clarkson into the car at Wappa Falls and became guilty of an offence under s.10 so that the appellant, who was also within the car, might be taken to be equally guilty with Ferguson by virtue of the operation of s.7 as, for example, by encouraging Ferguson by his presence in the receiving of Clarkson. But, depending upon the meaning of "receive" in s.10 and the application of the section in the circumstances, a case against the appellant under s.10 might be established without any liability on the part of Ferguson being shown. In his rulings and direction to the jury the trial judge has made it appear how he considered such a case against the appellant under s.10 might be established and the jury may be taken to have adopted this approach in arriving at their verdict.

The judge summed up the Crown case in its essential aspect by saying that it relied upon the action of the appellant and Ferguson in following Clarkson to Wappa Falls and picking him up there. The judge, consistently with the Crown submissions, did not suggest that a receiving could be found to have occurred before Clarkson was picked up at Wappa Falls but rather that the character of the actions there might be regarded as establishing it. It was at that place that the intentions of the appellant became manifest when Clarkson was accepted into the vehicle for the purpose of being driven from the scene. Apparently mindful of possible difficulties in establishing a relevant receiving when people, after a crime has been committed by one of them, merely continue their former habit of living together in a joint household (cf R. v. Lee and Scott (1834) 6 CAR. & P. 536; 172 E.R. 1353), the Crown did not attempt to rely upon the resumption of cohabitation between the appellant and Clarkson after the murder.

The authorities show that under s.10 some positive act has to be found in an aspect of the behaviour of the person charged directed towards the principal offender before it can be said that he has been assisted or received. The precise question then is this: can it be said that the appellant received Clarkson at Wappa Falls if a plan was revealed under which the appellant and Ferguson would follow behind Clarkson in a car driven by Ferguson to wherever Clarkson might lead them and be available to continue with him in some joint purpose, whatever it was to be, this aspect of the plan culminating in the admission of Clarkson into the vehicle containing the other two at Wappa Falls prior to driving from the scene?

In respect of the allegation of receiving, the trial judge put certain propositions to the jury. He said that in law it should not be taken as significant that the appellant had not been driving the car at relevant times so long as he was a willing participant in the activity which consisted of following the vehicle driven by Clarkson and collecting Clarkson at Wappa Falls when the security guard's vehicle had been abandoned there. That is, if they were persuaded of this, they could conclude that the appellant received Clarkson in the relevant sense.

There was no direct evidence that the appellant expressed
agreement in a plan to follow and collect Clarkson but there was
equally no evidence of protests or unwillingness to participate.
Thus the matter had to be judged circumstantially. It should
be concluded that the evidence to sustain a willing
participation was sufficient. The essential part of the
activity was capable of being regarded as a joint enterprise
undertaken by Ferguson, the appellant and Clarkson, with mutual
support and assistance rendered even if Ferguson was not shown
as having a full awareness of what had occurred at the depot and
therefore of having an intention to assist Clarkson to avoid
punishment for murder. But the appellant and Ferguson joined
together to follow and later collect Clarkson. It should not
be regarded as significant in law that the appellant operated
none of the controls of the vehicle following. Also, he was not
shown, for example, to have opened a door of the vehicle to
admit Clarkson when they were all about to leave Wappa Falls.
This was not of critical significance and the other evidence had
substantial circumstantial weight. It should be concluded that
the Crown case was sufficient both in fact and in law to entitle
the jury to convict the appellant and also that the basis on

which the case was put by the judge to the jury for their

decision was, in the circumstance, a proper one.

Although no appeal against conviction was then involved, the members of the Court, in the course of delivering their reasons in the appellant's earlier appeal against sentence, when they had been obliged to consider the appellant's involvement and culpability, diverted somewhat to consider the basis of the offence provided under s.10 of the code. The analysis offered by the court in the reasons delivered in the appeal against sentence is of assistance on this appeal. In respect of the ingredients of the offence in s.10 it is not necessary to refer to additional authority beyond what was then considered. McPherson and Pincus J.J.A. in their reasons referred to Sykes v. Director of Public Prosecutions (1962) A.C. 528 where Lord Denning, noting the longer formulation stated in the common law offence "receives, relieves, comforts or assists", identified as an essential ingredient the presence of an active act of assistance and Glanville Williams Criminal Law (2nd ed.) where at p.411 it is said that some positive aspect must be found in assistance rendered before this offence can be said to have been committed.

The offence is now constituted in Queensland by words of the Code. It is accepted that the proper approach to the construction of the Code is to refer to the preceding common law authorities only to the extent that the words of the Code are ambiguous but not in any general way to modify its otherwise clear meaning: Mellifont v. Attorney General (Qld) (1991) 173 C.L.R. 289 at 309 and Stuart v. The Queen (1974) 134 C.L.R. 426 at 437 (where the earlier case of Brennan v The King (1936) 55 C.L.R. 253 at 263 is referred to). The word "receives", which is the word used in the relevant count of the present indictment if it were to be considered only in the place where it appears in s.10, might be thought to be less than clear in its meaning and this would justify giving some attention to authorities decided at common law. In R v. Levy (1912) 1 K.B. 158 a case post-dating the introduction of the Code, it was suggested that "receives" in this context had a meaning which was, to an extent, technical. However, there is no need to over-emphasise any technical aspect which this word possesses. It is probably more helpful to consider its meaning principally in the association which the Code makes of it with the word "assists".

It can be said that to "receive" implies an act of acceptance of the offender into an area or location which the accessory controls or over which he exercises some influence and it will involve some measure of positive support for the offender. It can be expected that it will be included within the scope of assisting, which is a more embracing term. Viewed in this way receiving will constitute a particular form of assistance and a whole range of acts of assisting will not involve any aspect of receiving.

When, as can be inferred, the appellant and Ferguson accepted Clarkson into their vehicle at Wappa Falls, the necessary positive act of assistance was thereby constituted and they would both, within the meaning of s.10, have received him, although the appellant was and Ferguson was not shown to have the necessary knowledge and intention. The jury were entitled to find that at this time the potential of assistance which was constituted by the presence of the appellant and Ferguson in their following vehicle, became converted into something positive.

The appeal against conviction should be accordingly

dismissed.