R v Winston

[1994] QCA 137

IN THE COURT OF APPEAL [1994] QCA 137

SUPREME COURT OF QUEENSLAND

Appeal No. 446 of 1993

Before Fitzgerald P. McPherson JA. Pincus JA.

[R. v. Winston]

BETWEEN:

T H E Q U E E N

v.

Applicant

STEVEN DOUGLAS WINSTON

Fitzgerald P.
McPherson J.A.

Pincus J.A.

Judgment delivered 11/05/94

Joint Reasons for judgment of McPherson and Pincus JJ.A.

Separate Reasons of Fitzgerald P.

APPLICATION FOR LEAVE TO APPEAL GRANTED. APPEAL

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 11/05/94

The circumstances giving rise to this application and the issues which are raised are set out in the judgment of McPherson JA.

There is no appeal by the applicant against his conviction, but it is nonetheless necessary to identify the conduct which constitutes the offence of which he was convicted. This is made more difficult by two considerations.
Firstly, the prosecution narrowed its case to an allegation that the applicant "received" Clarkson and further narrowed it to a receiving (i) into the Holden motor vehicle (ii) at Wappa Falls. Other conduct whereby the jury might have concluded that the applicant assisted Clarkson either at Wappa Falls or elsewhere formed no part of the charge upon which the applicant was convicted.
Secondly, neither the prosecution nor the trial judge in his directions to the jury identified precisely what the applicant was alleged to have done. The prosecution seems to have proved no more in relation to the events at Wappa Falls than that the applicant was a passenger in the vehicle which collected Clarkson. In the absence of any appeal against conviction, it seems reasonable to accept that the jury must have been convinced that the applicant was also a participant in a decision to "receive" Clarkson into the vehicle at Wappa Falls, even though his role otherwise at that location seems to have been entirely passive.

I agree with McPherson JA. that, in sentencing, it was permissible to take into account that the applicant and Clarkson had escaped from prison and were involved in a criminal enterprise when the male victim, John Kelly, was murdered, and that the applicant knew of that murder and at least some of the brutal circumstances when he became an accessory by "receiving" Clarkson into the vehicle at Wappa Falls. I find it difficult to comprehend how, in the circumstances of this matter, the events which took place at the Humes factory can be taken into account against the applicant except as matters of which, or of some of which, he had knowledge. Not only are such matters not the subject of any charge of which he was convicted, but most, at least, are connected with counts on which he was acquitted.

As is pointed out by McPherson JA. on this footing the sentence imposed by the trial judge is excessive. I agree with his Honour's conclusion that it should be set aside and a sentence of imprisonment of eight years substituted. I also agree with the reasons for that conclusion.

JOINT REASONS FOR JUDGMENT - McPHERSON & PINCUS JJ.A.

Judgment delivered the Eleventh day of May 1994

The appellant Winston and a man named Clarkson escaped from Wacol prison in April 1992. They went to live with the applicant's de facto wife at a house at Didillibah in the Sunshine Coast hinterland. Because the water supply to the house there was not satisfactory they decided to steal some

pipes with which to improve it. Early on 27 May 1992 they set out together in a stolen Holden station wagon driven by a third man named Ferguson.

When they came to the Humes Pipes factory at Yandina, Ferguson stopped and remained in the car. The applicant and Clarkson went over the fence and into the premises. Not long afterwards two security guards John and Olveena Kelly drove into the factory yard in the course of their duty. The applicant was surprised and seized by John Kelly, but Clarkson came up and struck Kelly a shattering blow or blows to the head. The applicant ran to the fence and, looking back, saw him preparing to take John Kelly's gun from his holster. He climbed the fence and went back to Ferguson at the Holden vehicle. They heard the four shots fired by Clarkson, which ended the lives of John and

Olveena Kelly. The applicant later said he did not know of the presence of Olveena Kelly until he was back at the house at Didillibah, when Clarkson told him he had shot two people at the factory.

The applicant was brought to trial on four counts. Two charged him with murder as accomplice to Clarkson in the killing of John Kelly and Olveena Kelly. He was found not guilty of those offences. He was also found not guilty of a charge of receiving Clarkson on 27 May in order to enable him to escape punishment knowing he had murdered Olveena Kelly. However, the jury did find him guilty of a similar charge of receiving

Clarkson in order to enable him to escape punishment knowing of his murder of John Kelly. For that offence he was sentenced to

imprisonment for 11 years. This is his application for leave to

appeal against that sentence.

The provision of the Criminal Code imposing criminal responsibility on an accessory after the fact is s.10. It provides that:

"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."
Section 307 makes an accessory after the fact to murder guilty another. The section is derived from Stephen's Draft Code of 1880, which has been adopted in various parts of the common law world. In Canada it now appears in s.21(1) of the Canadian Criminal Code. The expression in s.21(1) is "receives, comforts, or assists that person". The word "receives" in this context has an ancient lineage. Coke ascribes it to the Statute of Westminster of 1275, 3 Edw.1 St.1 c.9, where the French word "receiptment" is used. In its original sense it seems to have meant "harbour" : cf. J.H. Baker, Manual of Law French, at 182: recever. In discussing accessories after the fact, Russell on Crime, 12th ed., vol.1., at 163, gives as examples from the old texts a person harbouring and concealing in his house a felon under pursuit, so that pursuers cannot find him; "and, much more, where one harbours in his house and openly protects such a felon, by reason whereof the pursuers dare not take him".
of a crime, and liable to imprisonment for life.

The reason for focussing on "receives" in s.10 is that the count in the indictment on which the applicant was found guilty charged him not with "assisting" but with receiving the murderer Clarkson. In the course of a ruling shortly before summing up, the learned trial judge after reference to prosecuting counsel confirmed that, if not satisfied of the criminal responsibility of the applicant as an accomplice under s.7 of the Code, or under s.8 of the Code, the jury might nevertheless be satisfied that he was an accessory under s.10 in that "at the time the accused received Clarkson into the vehicle at Wappa Falls, he had the requisite knowledge that Clarkson had murdered at least

the male victim". was that it was there (at Wappa Falls) that the applicant "received" the murderer Clarkson. To appreciate what is involved, it is necessary to look at what is said in para.9 of

Wappa Falls is some distance from the Humes Factory at

the applicant's written outline on appeal, which, it is not disputed, accurately states the effect of the evidence on this

point at trial. drove out of the Humes yard and on to the road in the Triton

utility in which John and Olveena Kelly had come there. He instructed the others to follow him, which they did in the

Holden vehicle driven by Ferguson. They proceeded in this fashion for several miles along a bush road until both vehicles

reached Wappa Falls. There Clarkson stopped and abandoned the utility. He then got into the Holden, which was driven by Ferguson back to the house at Didillibah.

In this state of things, it is not immediately apparent what it was that constituted the applicant's act of "receiving" Clarkson at Wappa Falls. He was, so far as the evidence goes, no more than a passenger in the vehicle into which Clarkson got after Ferguson stopped it there. It is difficult to view the applicant's conduct at that time and place as a "harbouring" of Clarkson. In Sykes v. Director of Public Prosecutions [1962]

A.C. 528, 568, Lord Denning said the words "receives, relieves, comforts or assists" described active acts of assistance. What he said reflects the statement in Glanville Williams: Criminal

Law, 2nd ed. §138, at 411, that a positive act of assistance is

needed to constitute someone an accessory. Among the authorities mentioned is the decision of the Privy Council in Majere v. The Queen [1954] A.C. 235, where the common law is contrasted with the Roman-Dutch law under which "mere impassivity" may be enough to render someone an accessory to the

full offence. At common law the only cases at all comparable

with the present are R. v. Holley [1963] 1 W.L.R. 190, where a woman drove a housebreaker home from the scene of the crime; and R. v. Lee & Scott (1834) 6 Car. & P. 536; 172 E.R. 1353, where in summing up Williams J. emphasised that before Scott could be

convicted as an accessory the jury would have to find that he had given encouragement to the embezzler Lee to make his escape

to America in company with Scott. Interestingly, counsel's argument there refers to an unreported case were Vaughan B. ruled that there was no harbouring by a son when his father, after committing a murder, returned to lodgings which they both shared and for which his father paid the rent.

It is therefore not easy to regard what happened at Wappa Falls as involving anything like a harbouring within the meaning of the older authorities. There is, however, no appeal against conviction in the present case, so that the matter falls to be considered here only for the purpose of identifying facts that it was legitimate for the learned judge to consider in arriving at sentence. Plainly it was permissible for him to take into account that the applicant and Clarkson were both prison escapees and that when John Kelly was murdered they were engaged in a joint criminal enterprise. The applicant's knowledge of the brutal murder and the circumstances of its commission is a relevant factor : see Hawken (1986) 27 A.Crim.R. 32, 38; but the most important consideration must almost always be the nature of the assistance afforded after the events, the reason why it was provided, and the extent to which it helped the primary offender to escape or delay detection, apprehension and punishment.

As to that, it is difficult to understand why Clarkson drove off in his victims' utility at all; doing so would not

have prevented detection. Having taken it, however, he

obviously needed to abandon it somewhere in order to prevent its being traced to him. To achieve that, he needed the Holden

vehicle there to pick him up and take him away from the place

where the utility was left.

So far as the material goes, there was nothing more on which the learned judge could properly act in sentencing the applicant. Upon the submission by counsel that the assistance rendered by the applicant was passive not active, his Honour remarked in sentencing:

"It seems to me that given the circumstances of this killing where shots were fired, people were woken up and dogs were barking, it was imperative that those responsible remove themselves from the scene as far away as soon as they could. It seems to me that the assistance was therefore somewhat more active than Mr Claire has submitted."

It is not clear precisely what it was that his Honour was referring to when he referred to that active assistance. Possibly something could have been made of the fact that Clarkson eventually accompanied the applicant back to the house at Didillibah; but the applicant was not charged with receiving him there. For the Crown, Mr Byrne Q.C. relied on the circumstance that, after the murders at the Humes factory site at Yandina, Clarkson had, according to the applicant's statement to the police, said to him "You wait here, and then follow me".

Clarkson had then gone back and got the utility and driven it

away with Ferguson and the applicant following in the Holden. for receiving Clarkson at Wappa Falls. Its only possible

It may be doubted how far the evidence of what happened at

relevance is to suggest that at Yandina the applicant showed himself willing to fall in with Clarkson's plan, whatever it

might have been, to use the utility to remove himself from the scene of the crime. Viewed in this way, the most that can be said is that the applicant at Yandina became party to an agreement that he and Ferguson would follow in the Holden, and so be available to collect Clarkson once he decided to ditch the utility, as he did at Wappa Falls. It was pursuant to that agreement that both the applicant and Ferguson became criminally responsible for subsequently "receiving" Clarkson at Wappa Falls with a view to driving him back to Didillibah.

If this is not what is meant when his Honour spoke of active assistance being provided by the applicant, then it is difficult to avoid the conclusion that the applicant was

sentenced at least to some extent for assisting Clarkson at Yandina. That, however, was not the matter with which he was charged, or tried, or found guilty, which was receiving Clarkson at Wappa Falls. It would not be legitimate to impose a sentence for an offence which, had it been charged against the accused,

would have been differently framed and would have required
different findings to sustain a verdict against him.

Even apart from any difficulty of that kind, a comparison with other cases of this variety suggests that the sentence imposed in the circumstances here may be unduly severe. In

Hawken (1986) 27 A.Crim.R.21, the applicant was sentenced to eight years imprisonment for being accessory to murder. He had helped to carry the body of the murdered man out of the house

where he had been killed to the boot of a waiting car; he then hosed down the driveway to remove blood from it; and arranged to

tidy up some effects of the deceased. The sentence of eight years would have taken account of a period of eight months on remand, so that a head sentence of 10 years had probably been the starting point. In R. v. Greig (13 Aug. 1991) the sentence imposed was imprisonment for five years in a case where the

assistance involved digging a grave to bury the victim, an action which was viewed "as a typical reaction of finding one's friend in a position of difficulty". In Crowley v. Garner

(1991) 55 A.Crim.R. 201, Garner helped to load the body into a

car and dump it in the bush. He was sentenced to 9½ years discounted back to 5½ years in view of the assistance given to the police. In passing it may be noted that when the common law offence of being accessory after the fact was replaced in England by a statutory offence under the Criminal Law Act 1967, the maximum penalties imposed were generally fixed by s.4(3) at levels equal to approximately half of that imposed for the

principal offence committed. That was not so here, but Mr Claire informed us without contradiction that before the trial the applicant had been prepared to plead to the offence of which he was found guilty; his attitude to the other charges in the indictment may be said to have been vindicated by the verdicts returned by the jury. The murder here was particularly brutal and cold hearted, and was carried out against an individual who, as the judge said, was an innocent man going about his duties in an isolated place; in that respect it differs from Hawken and Garner which involved

"gangland" slayings. Nevertheless, the applicant could not reasonably have anticipated or even expected Clarkson's murderous behaviour, and the jury's verdict in relation to s.8 of the Code contradicts any suggestion that he ought to have done so.

The applicant, who is aged 28 years, was, it is true, at the time of the offence a gaol escapee who engaged in a criminal venture that led to the murder; but, although he has a lengthy criminal record stretching back to 1983, it involves for the most part offences of dishonesty, such as stealing and false pretences, and suggests no predilection for violence. Indeed, when the present offence is considered, there is no indication of any inclination on the applicant's part to act violently on the night in question. The consequences of the venture in which the applicant participated to go out and steal pipes were tragic; but his part in what happened was almost entirely passive. In view of that, some reduction in the sentence of 11 years is plainly called for. It should be reduced to imprisonment for eight years which will continue to be
cumulative on any sentence the applicant may have been serving
when sentenced for this offence on 1 December 1993.

ALLOWED. SENTENCE VARIED BY REDUCING IT FROM IMPRISONMENT FOR 11 YEARS TO IMPRISONMENT FOR 8 YEARS. THE SENTENCE WILL CONTINUE TO BE CUMULATIVE ON ANY SENTENCE THE APPLICANT MAY HAVE BEEN SERVING WHEN SENTENCED ON 1 DECEMBER 1993.

CATCHWORDSCRIMINAL LAW - SENTENCE - Accessory after fact to murder - "Receiving" murderer - Passenger in vehicle into which murderer received - Whether mere "impassivity" sufficient - Actual knowledge of murder - Appellant had no inclination to violence.

Counsel:	J. Claire for the appellant
M. Byrne Q.C. for the respondent

Solicitors:Legal Aid Office for the appellant

Director of Prosecutions for the respondent

Hearing Date:8 March 1994