Rigney v The Queen; Tenhoopen v The Queen; Carver v The Queen; Mitchell v The Queen

[2021] SASCA 74

Supreme Court of South Australia

(Court of Appeal: Criminal)

RIGNEY v THE QUEEN; TENHOOPEN v THE QUEEN; CARVER v THE QUEEN; MITCHELL v THE QUEEN

[2021] SASCA 74

Judgment of the Court of Appeal  

(The Honourable President Kelly, the Honourable Justice Doyle and the Honourable Justice Peek)

10 August 2021

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - CONSTRUCTIVE MURDER

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE OR JOINT CRIMINAL ENTERPRISE - DIRECTIONS TO JURY

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

Rigney, Mitchell, Carver and Tenhoopen (and one Howell who was tried separately) entered into an agreement to steal a large amount of cannabis from a grow-house (the joint criminal enterprise - JCE). In furtherance of the JCE, one or more of the members inflicted one or more blows to the head of the person guarding the grow-house. He died from the head injuries and the appellants were convicted of his murder. A large amount of evidence established that each appellant was a participant in the JCE. None advanced a ground of appeal suggesting that the verdicts could not be supported by the evidence. Two grounds of appeal filed by Rigney were adopted by the other appellants (the Rigney grounds). Carver and Tenhoopen also filed further grounds of appeal. 

Under the first Rigney ground, it is contended that section 12A of the Criminal Law Consolidation Act 1935 (s 12A CLC Act) should be construed as only applying to a foundational offence which is to be classified a priori as an offence having violence as an element (the a priori approach) and that the foundational offence here relied upon was an offence of Serious Criminal Trespass which could not to be so classified.

Held, rejecting this ground of appeal: 

1.It is not clear that the common law felony murder rule which was abolished in South Australia in 1995 by the enactment of the Criminal Law Consolidation (Felonies and Misdemeanours) Amendment Act 1994 did, by that time, require that there be a felony which a priori had violence as an element. The formulation of that rule by Windeyer J in Ryan v The Queen (1967) 121 CLR 205 only required that: “... an unintended killing in the course of or in connection with a felony is murder if, but only if, the felonious conduct involved violence or danger to some person”. R v Van Beelen (1973) 4 SASR 353; Ross v The King (1922) 30 CLR 246; Macartney v The Queen (2006) 31 WAR 416; IL v The Queen (2017) 262 CLR 268; R v Kageregere [2011] SASC 154; The Queen v R (1995) 63 SASR 417; Director of Public Prosecutions v Beard [1920] AC 479.

2.In any event, the High Court in Arulthilakan v The Queen (2003) 78 ALJR 257 determined that the meaning of s 12A CLC Act was that: “Causing the death of another by committing an intentional act of violence in the course of a major indictable offence, even though there is no intent to kill or cause grievous bodily harm, constitutes statutory murder”. This was consistent with the correct approach to statutory construction, namely that inquiry into the meaning to be given to a law must begin and end with the words that are used, with account being given to extrinsic sources to consider the whole of the context in which those words are used. Birmingham Corporation v West Midland Baptist (Trust) Association (Inc) [1970] AC 874; CSR Limited v Eddy (2005) 226 CLR 1; Police v Holloway; Police v Vithoulkas [2013] SASC 2; APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; The Queen v A2 (2019) 93 ALJR 1106.

3.The summing up of the trial Judge was in accordance with the plain meaning of s 12A CLC Act and no further directions were required to be given.

Under the second Rigney ground, the appellants contend that for s 12A CLC Act to apply to a case of joint criminal enterprise, the accused must contemplate the possibility that another participant might commit an intentional act of violence that causes the death of another person; or, if that construction is to be rejected, in the alternative, that the accused must contemplate the possibility that another participant might commit an intentional act of violence that is “of the same sort” as that which actually occurred.

Held, rejecting this ground of appeal:

1.Pursuant to s 12A CLC Act, a party to a foundational offence who contemplates that another party may commit an intentional act of violence in the course or furtherance of the foundational offence will be guilty of constructive murder if such an act is performed and thus causes the death of the victim. It is not necessary that the party contemplates that another party may perform an act which causes the death of another. R v McBride (1983) 34 SASR 433; The Queen v R (1995) 63 SASR 417; McAuliffe v The Queen (1995) 183 CLR 108; Varley v The Queen (1976) 51 ALJR 243; Arulthilakan v The Queen (2003) 78 ALJR 257; R v Keenan [2009] HCA 1; IL v The Queen (2017) 262 CLR 268.

2.In the present case, it would have been in the contemplation of the appellants that a guard might be present at the grow-house and he might have to be overpowered. The act of hitting the deceased on the head could not be said to be other than an act “of the same sort” that would have been in contemplation by the appellants in the commission of the foundational crime. Accordingly, it is not necessary to decide here whether a radically different factual scenario which may arise in the future may require a different approach.

3.The directions of the trial Judge did not amount to an error of law and did not cause a miscarriage of justice. 

Carver’s further ground of appeal asserts that the trial Judge erred in rejecting his application for a mistrial following evidence being given by Mitchell that Carver and Tenhoopen had smoked “ice” prior to the commission of the offence. This ground of appeal was also advanced by Tenhoopen who adopted Carver’s submissions.

Held, rejecting this ground of appeal:  

1.An appellate court when reviewing the exercise of the discretion of a trial Judge to refuse a discharge of the jury must have in mind the following matters:

(a)    Whether the verdict is affected by the decision not to discharge;

(b)    The position of the trial Judge and the pertaining information and context when making the decision whether or not to discharge; and

(c)     The necessity of placing reliance on the integrity and sense of duty of jurors to obey the Judge’s directions and to render a true verdict consistently with them.

Rogerson v The Queen; McNamara v The Queen [2021] NSWCCA 160; Hamide v The Queen (2019) 101 NSWLR 455.

2.The trial Judge appropriately directed the jury that the subject evidence was inadmissible against Carver and Tenhoopen and they should not have regard to it when considering their cases.   

3.The subject evidence was short and vague and would have been submerged into the background of the totality of the evidence.

4.      No miscarriage of justice occurred.

Tenhoopen’s further grounds assert that a miscarriage of justice was caused by the trial Judge’s ruling to allow a witness to continue to give evidence by way of CCTV link and that the trial Judge’s rejection of his application for a mistrial caused a miscarriage of justice.

Held, rejecting these grounds of appeal:

1.Section 13 of the Evidence Act 1929 provides for witnesses to give evidence by way of CCTV link provided the jury are given the directions which were here given by the Judge.

2.Evidence given by a witness against a defendant can often result in signs to jurors of the enmity of a defendant and the resultant hesitancy or fear of a witness. Here, such enmity was likely to arise if the evidence were true and equally so if it were false, ie a “verbal” or lie invented by the witness so as to ingratiate him with the police (which indeed was Tenhoopen’s defence case).

3.The directions given by the Judge were adequate and no miscarriage of justice occurred.

Permission to appeal on each ground is granted. Each appeal is dismissed. 

Criminal Law Consolidation Act 1935 (SA) ss 12A, 37, 170; Criminal Law Consolidation (Felonies and Misdemeanours) Amendment Act (SA) s 5; Evidence Act 1929 (SA) s 13; Crimes Act 1900 (NSW) s 18; Drug Misuse and Trafficking Act 1985 (NSW) s 24, referred to.

APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 32; Arulthilakan v The Queen (2003) 78 ALJR 257; Birmingham Corporation v West Midland Baptist (Trust) Association (Inc) [1970] AC 874; Director of Public Prosecutions v Beard [1920] AC 479; Hamide v The Queen (2019) 101 NSWLR 455; IL v The Queen (2017) 262 CLR 268; Macartney v The Queen (2006) 31 WAR 416; McAuliffe v The Queen (1995) 183 CLR 108; Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; Police v Holloway; Police v Vithoulkas [2013] SASC 2; R v Kageregere [2011] SASC 154; R v Keenan [2009] HCA 1; R v McBride (1983) 34 SASR 433; R v Van Beelen (1973) 4 SASR 353; Rogerson v The Queen; McNamara v The Queen [2021] NSWCCA 160; Ross v The King (1922) 30 CLR 246; Ryan v The Queen (1967) 121 CLR 205; The Queen v A2 (2019) 93 ALJR 1106; The Queen v R (1995) 63 SASR 417; Varley v The Queen (1976) 51 ALJR 243, discussed.

Batcheldor v The Queen (2014) 249 A Crim R 461; CSR Limited v Eddy (2005) 226 CLR 1; Miller v The Queen (2016) 259 CLR 380; Osland v The Queen (1998) 197 CLR 316; R v Anderson; R v Morris (1966) 2 QB 110; R v Brown [1949] VLR 177; R v Carlos [1946] VLR 15; R v CMM (2002) 81 SASR 300; R v Dowdle (1900) 26 VLR 637; R v Grand and Jones (1903) 3 SR (NSW) 216; R v IL [2016] NSWCCA 51; R v Jacobs (2004) 151 A Crim R 452; R v Jeffrey [2003] 2 Qd R 306; R v Jogee [2017] AC 387; R v Johnston [2002] QCA 74; R v NJA [2002] SASC 113; R v Radalyski (1899) 24 VLR 687; R v Ryan [1966] VR 553; R v Serne (1887) 16 Cox CC 311; R v Sharah (1992) 30 NSWLR 292; R v Solomon [1959] Qd R 123; R v Surridge (1942) 42 SR (NSW) 278; R v Wilson (1991) 55 SASR 565; Wilson v The Queen (1992) 174 CLR 313, considered.

RIGNEY v THE QUEEN; TENHOOPEN v THE QUEEN; CARVER v THE QUEEN; MITCHELL v THE QUEEN
[2021] SASCA 74

Court of Appeal – Criminal:    Kelly P, Doyle JA and Peek AJA

1. KELLY P:  I agree with the orders proposed by Peek AJA.  I agree with his reasons. 

2. DOYLE JA:     The background to this appeal, and the issues it raises, are set out in Peek AJA’s reasons.

3. Ground 2 of the Rigney grounds of appeal involves a contention that the trial judge erred in directing the jury that an accused could be guilty of statutory murder pursuant to s 12A of the Criminal Law Consolidation Act 1935 (SA) where the alleged foundational crime does not include an act of violence as an element. The issue raised by this ground is thus whether statutory murder, or constructive murder (as it is often called), includes a requirement that the foundational offence be an offence that includes an act of violence as an element.

4. Section 12A is in the following terms:

   12A–Causing death by an intentional act of violence

   A person who commits an intentional act of violence while acting in the course or furtherance of a major indicatable offence punishable by imprisonment for ten years or more (other than abortion), and thus causes the death of another, is guilty of murder.

5. The section thus requires an act of violence in the commission of the foundational offence that causes death.  However, it does not include any express requirement that the foundational offence satisfy some a priori classification of the offence as an offence of violence, or as an offence that includes an act of violence as an element.

6. I do not consider that the common law as to felony murder provides any basis for the implication of such a requirement. I agree generally with Peek AJA’s analysis of the authorities. While the position is perhaps not entirely clear, I prefer the view that the common law as at the time of the enactment of s 12A, and as reflected in Ryan v The Queen,[1] R v Van Beelen,[2] R v R[3] and Arulthilakan v The Queen,[4] was as stated by Peek AJA.  In other words, I prefer the view that the common law, while requiring that the commission of the felony (the felonious conduct) include an act that was violent or dangerous, did not require any a priori classification of the felony as one inherently involving violence or danger.  More fundamentally, whatever the common law position was, and as Peek AJA’s review of the authorities demonstrates, it cannot be said that any such a priori classification was a clearly accepted and firmly entrenched requirement of the common law. As such, I do not accept that the common law provides a basis, in the face of the clear terms of s 12A, for importing a requirement that the foundational offence for the purposes of that section have an act of violence as an element.

   [1]     Ryan v The Queen (1967) 121 CLR 205 at 240-241.

   [2]     R v Van Beelen (1973) 4 SASR 353 at 400, 403.

   [3]     R v R (1995) 63 SASR 417 at 420-421.

   [4]     Arulthilakan v The Queen (2003) 78 ALJR 257 at [28].

7. For the reasons given by Peek AJA, I also do not think that the extrinsic materials relied upon by the appellants provide a basis for importing this requirement.  Nor in my view is there any other basis in principle or policy for so doing. 

8. The general rationale underlying constructive murder is that a person who engages in certain types of crime ought to be held liable for murder in respect of a death caused by that criminal conduct. But precisely what category of foundational crimes should engage this rationale is an issue of policy. Parliament expressly confronted this issue in the drafting of s 12A, and chose to identify the category of foundational offences by reference to the sentence they might attract (major indictable offences punishable by imprisonment for 10 years or more, other than abortion), this being a convenient proxy for their seriousness. Parliament could have chosen an alternative or additional identifying feature (for example, that the offence be one containing violence as an element), but did not do so. There is no reason to go behind the legislative intention that is plain on the face of s 12A.

9. While the law as drafted is capable of producing what some might consider to be harsh outcomes in some cases (particularly bearing in mind that liability for murder in this State carries with it not only a mandatory sentence of imprisonment for life but also a mandatory minimum non-parole period of 20 years), that is not a proper or sufficient basis for the implication contended for by the appellants.

10. I thus agree with Peek AJA that Ground 2 of Rigney’s grounds should be dismissed. 

11. Ground 3 of Rigney’s grounds of appeal is that the trial judge erred in directing the jury as to what must be proved for an accused to be guilty of constructive murder, according to the common law principles of extended joint criminal enterprise, by failing to direct the jury that the prosecution most prove that the accused contemplated (or foresaw) the possibility that another of the co-participants in the joint criminal enterprise might commit an intentional act of violence that caused the death of another person.  In addition to this contention that guilt of constructive murder by reason of the principles of extended joint criminal enterprise requires contemplation of an act of violence causing death, counsel for Mitchell also advanced an alternative submission that guilt by reason of these principles requires contemplation of an act of violence of the same sort, or type, as that which actually occurred.  A further alternative that has been postulated is that it requires contemplation of an act of violence that might reasonably be expected to result in death.

12. I agree with Peek AJA’s reasons for rejecting the primary and alternative contentions set out above.  While the principles governing extended joint criminal enterprise have attracted much criticism, their operation was recently confirmed by the High Court in Miller v The Queen.[5]  In their application to (non-constructive) murder, those principles do not require contemplation of death.  They require contemplation of the possibility that one participant in the enterprise would commit an act intending to cause grievous bodily harm or death; but they do not require contemplation of the possibility that the consequence of this would be death.  While the latter may be only a short step from the former, there is an important distinction between contemplating an act with the relevant murderous intent, and contemplating the consequence of death.

    [5]     Miller v The Queen (2016) 259 CLR 380.

13. In my view, when applying those principles in the context of constructive murder, a consistent approach requires only that the accused contemplate the possibility of an intentional act of violence.  It does not additionally require contemplation of the possibility either that death would be the consequence of that act; that the act of violence would be of the same type as what occurred; or that the act of violence be one that might reasonably be expected to result in death.  There is no basis in the authorities on extended joint criminal enterprise for requiring the contemplation of something that does not form an element of the primary offence.  To the extent that there is any threshold level or nature of violence that must be contemplated, it must come from the content of the offence of constructive murder. 

14. It may be accepted that the operation of the principles of extended joint criminal enterprise may, through their intersection with the offence of constructive murder, be productive of some unexpected and harsh outcomes.  However, to my mind, these are more criticisms of the policy that underpins these legal concepts, rather than a principled basis for supporting a differential application of the principles governing extended joint criminal enterprise in the context of constructive murder.

15. For these reasons, I agree with Peek AJA that Ground 3 of the Rigney grounds of appeal, including the alternative argument of Mitchell to which I have referred, should be dismissed. 

16. The only other observation I would make in this context is in relation to the trial judge’s references to it being sufficient to establish an accused’s guilt that he contemplated the possibility that one of the participants in the alleged joint criminal enterprise to commit an aggravated serious criminal trespass would strike or smack a person guarding the grow-house on the back of their leg. While (accurately) serving to ensure that the jury understood that the contemplation of any intentional act of violence would suffice, the example postulated was not only factually removed from the evidence, but also perhaps unnecessarily flirted with the limits of the concept of violence for the purposes of constructive murder.

17. In R v Kageregere,[6] Kourakis J (as he was then) held that in this context the word violence connoted “uncontrolled force which carries a real, in the sense of not remote, risk of personal harm”, adding that “a violent act is not intended unless the accused has an appreciation of surrounding circumstances, which, objectively viewed, make his act violent in the sense of unleashing unrestrained force which carries a risk of personal harm”.  It would seem to follow that whether a particular form of physical contact, including a strike or smack, constitutes an act of violence, may depend upon the surrounding circumstances.

    [6]     R v Kageregere [2011] SASC 154 at [141].

1. That said, I do not think it can be said that the trial judge’s directions in this respect were erroneous.  Further, and more fundamentally, regardless of any doubt as to the limits, or threshold nature or level, of the violence that must exist (for constructive murder), and be contemplated (for the principles of extended joint criminal enterprise to be engaged), this was not a case that tested those limits.  The circumstances of the present case were, as Peek AJA has explained, such that, to the extent any accused contemplated violence, it was violence of a nature and level that was undoubtedly sufficient to satisfy the threshold requirement to which I have referred.

2. Finally, as to the balance of the grounds of appeal, I agree with the reasons of Peek AJA and have nothing to add.  To the extent necessary, I would grant permission to appeal in respect of those grounds, but would dismiss the appeal.

3. I thus agree with the orders proposed by Peek AJA granting permission to appeal to the extent necessary, but dismissing the appeals.

4. PEEK AJA:  Appeals against convictions of murder.

5. The appellants, Benjamin John Mitchell (Mitchell), Alfred Claude Rigney (Rigney), Matt Bernard Tenhoopen (Tenhoopen) and Aaron Donald Carver (Carver), appeal against their conviction of the murder of the late Mr Urim Gjabri (the deceased) after being tried jointly before Lovell J and a jury. This judgment proceeds in the following parts:

   PART A:  Introduction

   PART B:  Constructive Murder

   PART C:  Complicity in cases of Constructive Murder

   PART D:  The appeals of Mitchell, Carver and Tenhoopen

   PART E:  Disposition of the appeals

   PART A:  INTRODUCTION

6. The prosecution case at trial was that each of the appellants (together with Jason Paul Howell (Howell) who stood trial separately[7]) agreed with each other to steal a substantial amount of cannabis from a house at 17 Carousel Street, Para Vista (the “grow-house”) which was being used to grow cannabis for commercial purposes (the joint criminal enterprise). On 9 October 2018, they all travelled in two cars to the vicinity of the grow-house in order to do so. They broke into the grow-house where the deceased was living and guarding the cannabis. They violently assaulted the deceased by at least one blow to his head, which caused his death. They loaded the cannabis into one of the cars in which they had arrived and also into the deceased’s car. Those two cars were then driven to Gilbert Street, Ingle Farm where the cannabis in the deceased’s car was transferred into Mitchell’s car (a blue Subaru) and the deceased’s car was abandoned.

   [7]     He was convicted by a separate jury on 24 March 2021.

   An overview of the prosecution evidence and factual case

7. There is a great deal of circumstantial evidence relied upon by the prosecution. No ground of appeal suggests that the verdicts were unreasonable. Important items of the prosecution case and evidence led in support of it include the following items in brief format:

   -On 8 October 2018, Rigney bought a white Holden VY Commodore (Rigney’s Commodore) but asked an acquaintance, Ms Melanie Hammond, to register it in her name, which she did.

   -On 9 October 2018, shortly before the murder, it is shown by telephone tower evidence that the position of the mobile phones of Howell and each of the appellants (except Tenhoopen[8]) converged to an area near the grow-house.

   [8]     Tenhoopen’s phone was turned off at the critical time immediately prior to the entry of the grow-house. However, it reconnected at 12.52 am and was then in the area of Gilbert Street, Ingle Farm (the same area in which Carver’s phone was detected a little after that time).

   -On 9 October 2018, shortly before the murder, five persons (on the prosecution case the four appellants and Howell) appear on CCTV footage walking together along Lorraine Avenue, Para Vista in the direction of the grow-house. Two are seen to be smoking and a spot of light is seen to fall to the ground; that precise location was later searched and a cigarette butt was found which yielded a DNA match of extremely strong probability to Carver.

   -At 17 Lorraine Avenue, there was an open building site with a number of unsecured half-bricks which were indistinguishable from a number of half bricks that were left in the grow-house and later found by police.

   -At least one of the appellants was seen on CCTV footage to be carrying a long object, apparently a bat, to the grow-house.

   -The locked grow-house was then forcibly broken into.

   -The occupant (the deceased) found inside was violently assaulted by one or more of the appellants in furtherance of the joint criminal enterprise. The deceased later died as a result of this assault.

   -The cannabis was taken from the grow-house, loaded into two cars (one of which was the deceased’s car) and driven away.

   -A car matching the description of Rigney’s Commodore was seen near the grow-house and parked in a backstreet nearby just before the murder. Just after the murder, a car matching that description was used (together with the deceased’s car which was stolen for this same purpose) to transport the cannabis from the grow-house to Gilbert Street, Ingle Farm. (Later, on 14 October 2018, Rigney disposed of his Commodore by trading it for two vehicles, one of which was unregistered and the other unroadworthy. Shortly before that transfer, Rigney’s partner, Ms Karpany, cleaned Rigney’s Commodore and found inside it a mobile phone which belonged to the deceased.)

   -The deceased’s car was abandoned at Gilbert Street, the cannabis in it having been transferred to Mitchell’s car (a blue Subaru). The police later searched the deceased’s car and found numerous remnants of cannabis therein. 

   -The police later swabbed the steering wheel of the deceased’s car which yielded a DNA match of extremely strong probability to Rigney.

   -The police later found in the laundry of the grow-house a knife which yielded a DNA match of extremely strong probability to Carver.

   -The police later found at the grow-house a pair of secateurs which yielded a DNA match of extremely strong probability to Mitchell.

   -The police later found at the grow-house a receipt dated 7 September 2018 for a box of “Raven” nitrile gloves but found no such box of gloves at the grow-house. Police later found at Carver’s house a box of “Raven” nitrile gloves which yielded a DNA match of extremely strong probability to Carver and also fingerprint matches to both Carver and Tenhoopen.

   -The police later located some of the stolen cannabis containing some pieces of yellow tape. Police also found cannabis containing some identical pieces of yellow tape at Carver’s house. A scientist from Forensic Centre compared the yellow tape found in the two batches of cannabis and found them to be indistinguishable.

   -Mr Sok Ratha Chan gave evidence that he used the bud stripper seen in exhibit P2D with Carver at Carver’s house just after the date of the murder. Evidence was given that that same bud stripper was found in Tenhoopen’s shed.

   -As to Tenhoopen, three witnesses (Shania Carson, Bridie McCormack and Scott Watts (Watts)) gave evidence that he had made clear and definite admissions of being at the grow-house with the other appellants and taking part in the theft of the cannabis.

   -As to Mitchell, he was the only one of the appellants to give evidence at trial. His evidence proffered a version that he was not a member of the alleged enterprise but it also furnished the prosecution with both certain incriminating admissions and evidence against the other defendants.

   The course of the trial

8. At trial, the prosecutor opened to the jury on the basis that the prosecution relied upon the doctrine of constructive murder pursuant to s 12A of the Criminal Law Consolidation Act 1935 (the CLC Act) and that the foundational offences were “Robbery” contrary to s 37 CLC Act, an offence which does include an act of violence as a necessary element, and “Aggravated Serious Criminal Trespass in a Place of Residence with the Intent to Commit Theft” contrary to s 170 CLC Act (“Aggravated SCT”) an offence which does not include an act of violence as a necessary element. However later, upon being asked to elect, the prosecutor elected for “Aggravated SCT”.

9. Counsel for Rigney submitted that for the constructive murder provision s 12A CLC Act (to be referred to as s 12A or s 12A CLC Act) to apply, the foundational offence must include an act of violence as a necessary element. The trial Judge rejected that submission.

10. The central propositions of law relied upon by the prosecution were put accurately by Mr Preston in his closing address thus:

    Now the prosecution case is that pursuant to an agreement or understanding five men, the four accused and Jason Howell, went to Carousel Street intending to enter the house and steal cannabis. One or more of them was armed with some form of bat and perhaps bricks taken from the building site at Lorraine Avenue. The deceased was bashed to death in circumstances which, on the prosecution case, make all of the accused guilty of murder by way of two alternative routes. The first route is extended joint enterprise. The second is constructive murder.

    The prosecution can’t identify which of the five men on the prosecution case entered the house and inflicted the fatal injuries. We don’t have to prove that.

    The prosecution case is, ladies and gentlemen, that between them the accused are legally responsible for each and one another’s actions for entering Mr Gjabri’s house and killing him. Even if you thought, for example, that one person’s role was in carrying out the agreement or understanding was to act as a lookout or getaway driver, even if he didn’t enter the house of the deceased, provided he was fulfilling a role in the joint enterprise the prosecution says he will be guilty of murder along with each of the others who joined in and carried out the agreement or understanding.

11. The prosecution relied upon the usual doctrines of criminal complicity as they applied to a case of extended joint criminal enterprise and also as they applied to a case of constructive murder pursuant to s 12A.

12. The prosecutor explained the extended joint criminal enterprise doctrine in unexceptionable terms which are not complained of. He then addressed the constructive murder doctrine, as it applies in a case such as the present, thus:

    The alternative route to guilt of murder that is available to you is the concept of constructive murder. The law is that an accused will be guilty of murder if he is part of an agreement or understanding to commit a serious crime and during the commission of that serious crime the unintended death of a person occurs as a result of an intentional act of violence. So let me apply the concept of constructive murder to the circumstances of this case.

    It is the prosecution case that the accused and Jason Howell went into the deceased’s house and between them stole his cannabis. This conduct on the prosecution case amounts to the crime of aggravated serious criminal trespass. Serious criminal trespass is commonly known as home invasion, that is, entering a person’s house as a trespasser with the intention of committing an offence. In this case the offence is the theft of the cannabis. It is aggravated serious criminal trespass because on the prosecution case the accused were in company with one another and were reckless as to whether anybody would be home at the time they entered.

    So if you were satisfied that an accused person committed an aggravated serious criminal trespass intending to steal Mr Gjabri’s cannabis plants and in the course of doing so that person committed an intentional act of violence that caused Mr Gjabri’s death that person will be guilty of Mr Gjabri’s murder. Now by this route to guilt the prosecution does not have to prove that the perpetrator intended to kill Mr Gjabri or do him grievous bodily harm. It would be murder simply if Mr Gjabri’s death was the result of an intentional act of violence rather than some unintended or accidental act, provided of course that the intentional act of violence was committed in the course of or furtherance of a serious criminal offence, that is, aggravated serious criminal trespass.

    The concept of joint enterprise also applies to this form of murder. So if two or more people reach an understanding or agreement to commit aggravated serious criminal trespass in order to steal cannabis and in the course of carrying out that understanding or agreement one of them commits an intentional act of violence resulting in a person’s death all the parties will be guilty of murder provided they foresaw the possibility that an intentional act of violence would occur in the course of the home invasion. They would not have to foresee the particular act of violence that caused the victim’s death, only that one of them would commit an intentional act of violence of some kind.

    The grounds of appeal of the appellant Rigney

13. I commence consideration with the Rigney grounds of appeal since they are adopted by the other appellants (the Rigney grounds). These grounds require this Court to consider a case occurring at the intersection of two important doctrines of the common law: first, the common law doctrine of constructive murder and secondly, the common law doctrine of criminal complicity. Each doctrine has had a somewhat haphazard evolution (with some controversies still lingering). I will consider the historical development and present content of each of those doctrines, but only to the extent necessary to resolve the present appeals.

14. The Rigney grounds of appeal (as finally amended) are:

    1.Abandoned.

    2.The learned trial Judge erred at law by directing the jury that an accused could be guilty of statutory murder pursuant to s 12A of the Criminal Law Consolidation Act 1935 where the alleged foundational crime did not include an act of violence as an element.

    3.The learned trial Judge erred at law in directing the jury as to what must be proved for an accused to be guilty of murder pursuant to s 12A of the Criminal Law Consolidation Act 1935, according to the common law principle of extended joint criminal enterprise, by failing to direct the jury that the prosecution must prove that the accused contemplated (or foresaw) the possibility that another of the co-participants in the joint criminal enterprise might commit an intentional act of violence that caused the death of another person.

    4.Abandoned.

    PART B: CONSTRUCTIVE MURDER

15. Ground 2 of the Rigney grounds of appeal involves consideration of the status and effect of s 12A and, in turn, the prior and present status and effect of the common law doctrine of “constructive murder”. As finally amended, it appears as follows:

    2.The learned trial Judge erred at law by directing the jury that an accused could be guilty of statutory murder pursuant to s 12A of the Criminal Law Consolidation Act 1935 where the alleged foundational crime did not include an act of violence as an element.

    Section 12A of the Criminal Law Consolidation Act 1935

16. In South Australia, the content of the substantive law of homicide has always been supplied by the common law, together with a statute addressing matters concerning penalty and some other procedural matters. Moving forward to 1935, the Criminal Law Consolidation Act 1935 was enacted and became the repository of the provisions dealing with murder and manslaughter. They there appeared thus:

    11.     Any person who is convicted of murder shall suffer death as a felon.

    12.     Any person who—

    (a)     conspires, confederates, and agrees with any other person to murder any person, whether he is a subject of His Majesty or not, and whether he is within the King’s dominions or not:

    (b)     solicits, encourages, persuades, or endeavours to persuade, or proposes to any person to murder any other person, whether he is a subject of His Majesty or not, and whether he is within the King’s dominions or not,

    shall be guilty of felony, and liable to be imprisoned for life.

    13.Any person who is convicted of manslaughter shall be liable to be imprisoned for life, or to pay such fine as the Court awards, or to both such imprisonment and fine.

17. Over the years up to 1995, sections 11 to 13 of the CLC Act were amended only to a small degree. However, on 1 January 1995 the Criminal Law Consolidation (Felonies and Misdemeanours) Amendment Act 1994 (SA) commenced, enacting the important provision of s 12A such that the presently relevant provisions now appear as follows (with s 12A emboldened):[9]

    11—Murder

    Any person who commits murder shall be guilty of an offence and shall be imprisoned for life.

    12—Conspiring or soliciting to commit murder

    Any person who—

    (a)conspires, confederates and agrees with any other person to murder any person, whether he is a subject of Her Majesty or not and whether he is within the Queen’s dominions or not;

    (b)solicits, encourages, persuades or endeavours to persuade, or proposes to, any person to murder any other person, whether he is a subject of Her Majesty or not and whether he is within the Queen’s dominions or not,

    [9]     Both as at the date of the death the deceased and the hearing of this appeal. Provisions addressing the crime of manslaughter are omitted.

    shall be guilty of an offence and liable to be imprisoned for life.

    12A—Causing death by an intentional act of violence

    A person who commits an intentional act of violence while acting in the course or furtherance of a major indictable offence punishable by imprisonment for ten years or more (other than abortion), and thus causes the death of another, is guilty of murder.

    Note— ¹ ie an offence against section 81(2).

18. Of importance, one of the common law aspects of murder has long been a constructive murder doctrine (hitherto referred to as the felony murder rule) which has been discussed in a number of South Australian authorities. The enactment of s 12A in 1995 was part of the process of the abolition of the felony/misdemeanour distinction in South Australia. As a necessary statement of the obvious, whatever the precise content of the felony murder was at any particular time in any particular jurisdiction, it was always necessary that a foundational “felony” be involved. Accordingly, if the “felony” nomenclature was to be abolished, legislation was required to fill that gap in the constructive murder doctrine if it were to continue to remain part of the common law of murder in South Australia.

19. The effect of the legislation was at least threefold. First, it demonstrated that Parliament had made the political decision that “constructive murder” was to remain part of the law of homicide in this State. In doing so, it positively rejected various longstanding calls for the complete abolition of that doctrine and carefully considered the proposed meaning and effect of s 12A.

20. Secondly, the requirement of a “felony” was replaced by “a major indictable offence punishable by imprisonment for ten years or more”. Clearly, a requirement of “a major indictable offence which has as an element an act of violence and is punishable by imprisonment for ten years or more” could have been chosen, but was not.

21. Thirdly, a requirement that the defendant “commits an intentional act of violence while acting in the course or furtherance of [that offence …] and thus causes the death of another” was spelt out so as to address continuing doubts as to the precise content of the doctrine (as explored below).

22. On 5 May 1994, the Attorney-General (the Honourable Mr KT Griffin) introduced the Criminal Law Consolidation (Felonies And Misdemeanours) Amendment Bill to amend the Criminal Law Consolidation Act 1935 and to make consequential amendments to other legislation necessary to provide for the abolition of the classification of offences as felonies and misdemeanours and for other purposes. In his second reading speech, the Attorney-General spoke to the major issue of abolishing the felony and misdemeanour classifications and I do not need to dwell on that matter. However, he correctly perceived that such abolition raised some substantive matters and said:[10]

    … But the abolition of the distinction also requires the examination of some areas of substantive criminal law. They fall under the following headings.

    1. The Felony Murder Rule

    The felony murder rule goes back a very long time in the history of the criminal law at common law. In general terms, it is murder if a person kills another by an act of violence committed in the course of the commission of a felony involving violence. The point of the rule is that an accused will be guilty of murder in such a case even if he or she has not had the fault elements (such as an intention to kill or cause grievous bodily harm) normally required for conviction for murder. This rule applies only in relation to felonies.

    It was abolished in England in 1957, and is no longer law in the ACT. It has been declared to be contrary to the Charter of Rights in Canada. It was recommended for abolition by the Mitchell committee, the Victorian Law Reform Commissioner, the Victorian Law Reform Commission, the Queensland Criminal Code Review Committee and the Canadian Law Reform Commission.

    Against this unanimity of professional opinion, there can be no doubt that the doctrine has been employed in recent highly publicised cases in South Australia, and it has a certain popular appeal. When Victoria abolished the distinction between felonies and misdemeanours in 1981, it enacted a provision retaining the rule to a large degree.

    This Bill adopts the latter course, despite a number of submissions to the Government that sought to have the rule abolished entirely. The reason is that such a reform would be controversial, and that controversy would be destructive of the main aim of the Bill—which is to abolish the anachronistic distinction.

    [10]   South Australia, Parliamentary Debates, Legislative Council, 5 May 1994, 767-768.

1. That tension between widespread criticism of (various) constructive murder doctrines and their continued statutory retention is widely seen in academic writing. For example, in his article In search of a model code provision for murder in Australia, Mr Hemming stated:[11]

   … If the offence was so flawed, then why does it continue to remain on six State statute books? Significantly, for the purpose of this article which contends that recklessness should be a fault element for murder in s 156(1)(c) of the Criminal Code (NT), in 1991 the Law Reform Commission of Victoria concluded that because recklessness is a separate mental element for murder in Victoria, the felony murder rule should be abolished. However, constructive murder remains on the statute book in Victoria under s 3A of the Crimes Act 1958 (Vic), which is clearly a government policy decision.

   …

   The underlying theme of this article is the search for a model code provision for murder in Australia. If all six States in Australia retain constructive murder, then it appears that constructive murder is a policy decision based on the unlawful purpose of the “trigger” offence “magnifying the wrongfulness of the killing” rather than an offence based on deterrence since the felony murder rule is not well known. The Murray Review of the Criminal Code (WA) concluded that “although logic may be against the retention of the forfeiture rule, policy considerations are to the contrary”. [Citations omitted]

   [11]   (2010) 34 Crim LJ 81, 89-90.

2. Ground 2 of appeal obviously involves the correct construction of s 12A. Perhaps clarity is assisted if it is stated in terms of what the appellants positively contend that the Judge should have directed the jury, along the following lines:

   The Judge should have directed the jury that an accused could be guilty of statutory murder pursuant to s 12A only if the alleged foundational crime includes an act of violence as an element.

3. Of course, in addition to this “implied requirement” that the foundational crime must be a type of crime that is to be classified a priori as a crime involving violence as an element, the appellants further contend that such implication is in addition to the requirements actually stated in s 12A. These are that the person commits an intentional act of violence while acting in the course or furtherance of a major indictable offence punishable by imprisonment for ten years or more and thus causes the death of another.

4. The primary response by the respondent is, in effect, that the appellants’ contention is diametrically opposed to the actual words of s 12A; and, further, that their assertion that “the legal issue raised by this ground of appeal about the scope of s 12A has not been previously considered by any Court” may be due to the fact that the contention is quite obviously incorrect.

5. In this regard, reference may be made to the following passage in the joint judgment of the High Court (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ) in Arulthilakan v The Queen:[12]

   27. In Ryan v The Queen[13], Windeyer J, dealing with the common law concept of felony murder, said[14]:

   “There was a time when a man was guilty of murder, and punished accordingly, if while doing any unlawful act he happened to kill another man, however unexpectedly and unintentionally.  This harsh rule became gradually mitigated.  By the 18th century, although a man who in the course of committing a crime unintentionally killed another might still for that reason be guilty of murder, this was only when the crime was a felony.  By the middle of the 19th century doubts had begun to be expressed about this doctrine ... The generally accepted rule of the common law today is, however, that an unintended killing in the course of or in connection with a felony is murder if, but only if, the felonious conduct involved violence or danger to some person.”

   28. In South Australia, the law on the subject is now to be found in s 12A; but what was said by Windeyer J explains the genesis of the statutory provision. Causing the death of another by committing an intentional act of violence in the course of a major indictable offence, even though there is no intent to kill or cause grievous bodily harm, constitutes statutory murder. [Emphasis added]

   [12] (2003) 78 ALJR 257.

   [13] (1967) 121 CLR 205.

   [14]   Ryan (1967) 121 CLR 205 at 240-241.

6. Needless to say, the respondent submits that the underlined passage immediately above constitutes a definitive pronouncement by the High Court as to the meaning of s 12A of the CLC Act and should be accepted as such.[15]

   [15]   The decision of the High Court in Arulthilakan was not referred to in the appellants’ written submissions; nor in their List of Authorities filed prior to the appeal; and nor in oral submissions until it was drawn to the attention of Senior Counsel for Rigney by the Court during the course of argument. Counsel’s initial response was that he was aware of the decision but that the passage reproduced above was not relevant and was given in circumstances different to the present. He then submitted that the passage was “per incuriam”. Very little in the way of academic writings or decided cases was referred to in support of that rather large claim. 

   An overview of the appellants’ contentions concerning Ground 2

7. As I understand it, the appellants make the following major contentions concerning Ground 2.

8. First, that as at the time of the enactment of s 12A in 1994-1995, the felony murder rule that s 12A replaced was uniformly recognised as being that a person who, while committing a felony of a type which is dangerous to life, happens to kill another (however unexpectedly and unintentionally) is guilty of murder. This formulation requires that the felony be of a type which is a priori “dangerous to life” (the a priori approach).

9. Secondly, that s 12A should be interpreted as only applying to offences that, under that iteration of the felony murder rule, would have qualified as a felony that is a priori “dangerous to life”.

10. Thirdly, that the offence eventually specified by the prosecution at trial as the foundational offence was not an offence a priori “dangerous to life”. Accordingly, s 12A could not apply and the convictions of murder, which may have been rendered pursuant to the application of that provision, must be set aside.

11. I will now consider those contentions.

    The appellants’ contention concerning the content and meaning of the felony murder rule as at 1 January 1995

12. The appellants first contended that certain aspects of the history, nature and content of the common law felony murder rule should presently inform the correct construction of s 12A - and indeed lead to a quite different construction than that adopted by the High Court in Arulthilakan v The Queen[16] (reproduced above at paragraph [44]).

    [16] (2003) 78 ALJR 257 at [28].

13. A conventional analysis of the history of the felony murder rule proceeds on the basis that the doctrine of constructive murder commenced in ancient times as a broad and draconic doctrine which was later ameliorated by more recent decisions of the common law Courts (albeit that some of the decisions were somewhat inconsistent inter se). The analysis of Windeyer J in Ryan v The Queen[17] (referred to and reproduced in part by the Court in Arulthilakan above) is often cited in this regard.[18]

    [17] (1967) 121 CLR 205, 240-241.

    [18]   There is a broad spectrum of academic opinion concerning many matters surrounding the common law constructive murder doctrine. As a good example of the robust and interesting debates that are to be found in the literature, Professor Lanham in his article ‘Felony Murder – Ancient and Modern’ (1983) 7 Crim LJ 90, 100-101 contended in effect that an ancient rule of the stark and draconic type predicated by Windeyer J and other commentators is something of a unicorn. After a detailed consideration of some of the older writings and cases in the main body of the article, he summarised his thesis thus:

    “Summary. By the beginning of the nineteenth century there was some suggestion that accidental killing in the course of felony was murder. This rule was founded on a doctrine of unlawful act murder conceived by Coke in a statement which was unsupported by his cited authorities and penned in the course of a discussion of homicide which was partly incoherent. The same doctrine was rejected by Coke’s contemporary, Dalton, and by Hale both in his Summary and in his History of the Pleas of the Crown. Unfortunately, the latter and more authoritative work did not appear until 1736. When it did appear it referred to two cases which clearly demolished the unlawful act murder doctrine. Before that happened, however, Lord Holt, in a well-meaning but unfortunate attempt to limit what he obviously believed to be a firmly settled rule, ended by giving it an appearance of a new lease of life, in the form of the felony murder rule. Holt’s exceedingly diffident and per incuriam views were seized on by Hawkins and Foster who placed them together with ale, whose view was quite the opposite, to erect a felony murder rule. They were also used in R. v. Woodburne and Coke to reach a sensible result in circumstances where recourse to them was entirely unnecessary. Blackstone, on one reading, appears to have supported Hawkins and Foster without relying on them. Instead he relies on Hale, the one commentator of the highest authority who appears to have rejected the whole foundation of the rule. Finally, East restates the rule adding nothing of his own except a further misunderstanding of Hale and failing to notice that the most relevant recent case threw at least some doubt on whether the rule existed at all. Any detailed review of the authorities in the first few years of the nineteenth century would have revealed that there was more authority against the felony murder rule than in its favour.”

14. A further portion of Windeyer J’s analysis (omitted from the passage from Arulthilakan reproduced above at the position of the ellipsis in the High Court judgment) is as follows:[19]

    … For example, in the early editions of Roscoe on Criminal Evidence it was contrasted with the Scots law, which the author said made an unintended homicide murder only when it took place in the commission or attempt to commit a capital crime or one obviously dangerous to life. The author remarked that “Perhaps the rule with regard to implied malice has been carried, in the English practice, to at least the full length which reason and justice warrant”. Soon judges thought that it went further than reason and justice warranted, and questioned its validity. Stephen J. did so, notably in Reg. v. Serné. If he had had his way, the common-law rule would have been abolished and “a definite enumeration of the states of mind intended to be taken as constituent elements of murder” substituted for the phrase “malice aforethought”, “a phrase which is never used except to mislead or to be explained away”: History of the Criminal Law, vol. 3, p. 83. But Stephen’s proposed code was not enacted. England retained the common law. However judicial development brought it into substantial conformity with the rule which Stephen J. had suggested in Reg. v. Serné. Thus it was that Lowe J., delivering the judgment of the Supreme Court of Victoria in R. v. Brown and Brian could say: “For fifty years past the view prevailing in England seems consistently to have been that death unintentionally brought about in the commission or furtherance of a felony is only murder in the actor, if the felony is one which is dangerous to life and likely in itself to cause death. The language used has varied with different judges, but has been substantially to the same effect as just set out”. Some variety of language continues to be used, and there has been much learned academic discussion and criticism of some of the language that has been used. [Citations omitted]  

    [19] (1967) 121 CLR 205, 240-241.

15. Returning then to the question “What were the essential requirements for a conviction of common law murder pursuant to the common law felony murder rule?”, it is clear that that question has been answered in different ways, at different times, by different commentators, in different jurisdictions. Without attempting to be at all exhaustive, they include the following alternative variants:

    A.The defendant, while committing any unlawful act, happens to kill another.

    B.The defendant, while committing any felony (as distinct from a misdemeanour), happens to kill another.

    C.The defendant, while committing a felony of a type which is dangerous to life, happens to kill another.

    D.The defendant, while committing a felony of a type which is dangerous to life, happens to kill another in circumstances where the actual felonious conduct involved violence [or danger] to some person.

    E.The defendant, while committing any felony, happens to kill another in circumstances where the actual felonious conduct involved violence [or danger] to some person.

16. The ultimate submission of the appellants is, in essence, that “variant C” or “variant D” denotes the state of evolution of the common law as at 1995 such that the meaning of s 12A should be construed as having the same requirements as one of those variants.

17. I will briefly discuss each of the above variants and then consider that ultimate submission of the appellants.

    A. The defendant, while committing any unlawful act, happens to kill another.

18. In 1967, this was stated by Windeyer J in Ryan v The Queen[20] to have been the original harsh rule (prior to the eighteenth century) which was later gradually mitigated by the common law Courts.

    [20] (1967) 121 CLR 205.

19. To like effect, Professor Colin Howard stated in Howard Criminal Law:[21]

    The felony-murder rule appears to have originated in a much wider doctrine, no longer law, that any killing in the course of any unlawful act was murder, but in modern times the courts have never sought to make a killing during the execution of another unlawful purpose murder unless that other purpose amounted at least to felony.  [Citation omitted]

    B.The defendant, while committing any felony (as distinct from a misdemeanour), happens to kill another.

    [21]   Criminal Law (Law Book, 4^th ed, 1982) 56. 

20. This was stated by Windeyer J in 1967 in Ryan v The Queen[22] to have been the position that had been arrived at by the common law Courts by the eighteenth century following the above mitigating process. It was also stated in 1973 by the South Australian Court of Criminal Appeal in R v Van Beelen to be the first of three (or possibly four) previously suggested tests. The Court stated:[23]

    Three, or possibly four, tests have been suggested as the present test of felony murder at common law and the common law on this subject still prevails in South Australia. The first is that it is enough if death is caused in the course of commission of or in furtherance of any felony whether involving violence or not.

    [22] (1967) 121 CLR 205.

    [23] (1973) 4 SASR 353, 400.

21. It was also the position that was stated by the High Court in 1922 in Ross v The King to be then still current. The majority there stated:[24]  

    By the law of Victoria, to have carnal knowledge of a girl under the age of sixteen years is a felony, and the unintentional killing of one person by another while such other is in the course of committing a felony or acting in furtherance of the purpose of committing a felony, that is to say, in the promotion or advancement of the purpose of committing a felony not yet accomplished, is murder.

    C. The defendant, while committing a felony of a type which is dangerous to life, happens to kill another.

    [24] (1922) 30 CLR 246, 252.

22. This formulation requires that the felony be of a type which is a priori dangerous to life (the a priori approach). Thus, in an article Felony Murder at Common Law in Australia – The Present and the Future,[25] Mr John Willis stated:[26]

    [25]   [1977] 1 Crim LJ 231. It has been subsequently referred to with approval by a number of commentators.

    [26]   [1977] 1 Crim LJ 231, 231-234.

    A Felony involving Violence

    Beard’s case appears to restrict felony murder to that class of felonies which are in some way intrinsically violent.  More recent formulations of the rule seem to retain this requirement.  Jarmain applied Beard, and Wrottesley J. speaking for the Court of Criminal Appeal stated:

    “… that he who uses violent measures in the commission of a felony involving personal violence … is guilty of murder if those violent measures result even inadvertently in the death of the victim.”

    Beard’s case was applied in Ryan and Walker and Evans and Lewis; and in Van Beelen the Court stated:

    “And we think we are bound by the cases of Beard … to hold that … it is murder to cause death in the commission of a felony involving violence or danger.”

    …

    The artificiality of this requirement that the felony belong to a class of “violent” or perhaps “dangerous” felonies has been seen as a reason for denying the existence of the requirement.  The whole rule of felony murder is equally artificial depending on quite arbitrary distinctions between felonies and misdemeanours.  As a method of limiting the felony murder rule, the requirement of a certain class of felony is crude and possibly unnecessary.  But that is not to deny its existence.  It should be noted, too, that many American States have limited the felony murder rule in the same way by restricting it to a number of specific felonies.  One might add that any restrictions of the rule for whatever reason are to be applauded.  [Citations omitted]

23. There are various examples of Judicial statements endorsing this requirement. Thus, in the decision of the Western Australian Court of Appeal in Macartney v The Queen, Roberts-Smith JA (with whom Wheeler JA concurred) stated:[27]

    471. The felony‑murder rule at common law did not involve any notion that the relevant act be dangerous to life.  Historically, the felony‑murder rule was always applied less strictly where death was caused by abortion (R v Lumley (1911) 22 Cox CC 635) but abortion aside, the rule was that any act of violence causing death, done in the course or furtherance of an offence involving violence, was murder (Director of Public Prosecutions v Beard [1920] AC 479; R v Ryan [1966] VR 553; R v Van Beelen (1973) 4 SASR 353). This formulation did not involve any consideration of the likelihood (or even possibility) of death resulting, nor the dangerousness of the act. [Emphasis added]

    [27] (2006) 31 WAR 416, 457. Their Honours went on to note some judicial attempts to ameliorate the doctrine.

24. It was also the view taken by Gordon J in the relatively recent decision of the High Court in IL v The Queen. Her Honour there stated: [28]

    157. Before dealing with some of the New South Wales cases, it is useful to say something about the common law principles that had developed in relation to felony murder. It is to be recalled that s 18 was intended to encompass those common law principles. And, as explained in these reasons, that is what the words of the section achieve. The common law position was summarised in R v Solomon[29] in the following terms:

    “By the common law if the victim of robbery, which is a felony involving violence, be killed in the course of the robbery all parties to the robbery are guilty of murder.  The probability or possibility that homicide would or would not be done is irrelevant.  The fact that the homicide occurred independently of the exercise of the will of one of the accomplices would not exonerate him.” [Emphasis added]

    [28] (2017) 262 CLR 268 (Delivered 9 August 2017).

    [29] [1959] Qd R 123 at 126-127 quoted in R v R (1995) 63 SASR 417 at 420.

25. It was also the view taken by Kourakis J (as he then was) in R v Kageregere in that he construed the decision of the South Australian Court of Criminal Appeal in R v Van Beelen[30] as to the ambit of the felony murder rule thus:[31]

    131. At the commencement of the 20^th century the then felony murder rule was stated in wide terms as the killing of a person in the commission of a felony.[32]  Over time signs of amelioration of the rule appeared in a number of authorities, which stipulated an additional element that the killing be caused by an act of violence,[33] but on occasions the statement of the rule reverted to its wider, harsher form.[34]  An even more modified rule became settled in abortion cases to the effect that the act of violence must be of a kind “that a reasonable person, in the position of the accused would have reasonably expected [ to ] cause death or grievous bodily harm”.[35]

    132. The common law rule articulated by the Full Court of this Court in R v Van Beelen[36] was that felony murder consisted of causing “death in the commission of, or in furtherance of the commission, of a felony involving violence or danger.”[37]

    133. The policy rationale for the common law felony murder rule was that a “perpetrator should be liable for the unintended consequences of his actions in the course of the felony because in engaging in a violent or dangerous felony he must accept responsibility for what occurs in the course of that felony, even though unintended”.[38] … [Emphasis added]

    [30] (1973) 4 SASR 353.

    [31] [2011] SASC 154. A trial by Judge alone.

    [32]   R v Radalyski (1899) 24 VLR 687.

    [33]   R v Dowdle (1900) 26 VLR 637 at 634; DPP v Beard [1920] AC 479 at 493.

    [34]   Ross v The King (1922) 30 CLR 246.

    [35]   R v Carlos [1946] VLR 15 at 19; R v Brown [1949] VLR 177 at 181; R vRyan [1966] VR 553 at 563.

    [36] (1973) 4 SASR 353.

    [37] (1973) 4 SASR 353 at 403.

    [38]   R v R (1995) 63 SASR 417 at 421; R v Serne (1887) 16 Cox CC 311.

    The decision of the Court of Criminal Appeal in R v Van Beelen

1. While the view taken by Kourakis J in R v Kageregere was as stated immediately above, it should be noted that some questions do remain as to the precise meaning of some of the statements in the judgment of the South Australian Court of Criminal Appeal in R v Van Beelen.[39] In a lengthy and learned judgment, the Court (Bray CJ, Wells and Zelling JJ) considered the then state of the common law felony murder doctrine and observed at page 400 (in what I will term the “page 400 statement”):[40]

   Three, or possibly four, tests have been suggested as the present test of felony murder at common law and the common law on this subject still prevails in South Australia. The first is that it is enough if death is caused in the course of commission of or in furtherance of any felony whether involving violence or not. The second is that it is only murder if violence or danger is involved. The third is that it is necessary, in addition, that the act causing death should be of such a nature as was likely to cause death or grievous bodily harm. The possible fourth test is that it is only murder if a reasonable man in the position of the accused would have realised that the act in question was likely to cause death or grievous bodily harm. There is a theoretical difference between the third and fourth formulations, but we doubt if any difference in meaning was ever intended.

   Abortion cases may well stand in a special category and need not be considered here. [Emphasis added]

   [39] (1973) 4 SASR 353.

   [40] (1973) 4 SASR 353, 400.

2. Their Honours then considered historical developments at some length and concluded at page 403 (in what I will term the “page 403 statement”):[41]

   So we think that after all we do have to decide the correct test for felony murder in South Australia, for if either the third or the fourth formulation is correct the direction was too narrow. And we think we are bound by the cases of Beard, Betts and Ridley, Stone and Ryan and Walker, and the remarks of the learned Judges of the High Court in the second Ryan Case, to hold that the second test is the correct one and that, abortion cases apart, it is murder to cause death in the commission of or in furtherance of the commission of a felony involving violence or danger. If that is so, the learned Judge’s direction was too favourable to the appellant and he cannot complain of that. [Emphasis added; Citations omitted]

   [41] (1973) 4 SASR 353, 403.

3. It is this latter statement to which Kourakis J referred in R v Kageregere. However, with all respect, the “page 403 statement” is not pellucidly clear. Standing by itself, it may be said to suggest dependence upon an a priori categorisation of different felonies as being, or not being, felonies involving violence or danger as Kourakis J suggested. But, on the other hand, in the earlier “page 400 statement”, the Court had delineated four alternative tests and had there said that the second test “is that it is only murder if violence or danger is involved”. Thus, if one reads the “page 403 statement” together with the “page 400 statement”, the Court within the “page 400 statement” appears to adopt “the second test”, namely that “it is only murder if violence or danger is involved”.  This would appear to refer to the particular offence as committed by an accused person as distinct from an a priori classification of types of felonies. If that be so, the decision in Van Beelen is congruent with the pronouncement of Windeyer J in Ryan reproduced above; and indeed, in Van Beelen the Court (in the “page 403 statement”) specifically referred with approval to the judgments of Windeyer J in Ryan (“the second Ryan Case”).

   The Court of Criminal Appeal decision in The Queen v R (1995) 63 SASR 417

4. In the later Full Bench decision of the South Australian Court of Criminal Appeal in The Queen v R, King CJ (with whom Matheson, Millhouse and Duggan JJ concurred) stated:[42]

   The common law as to felony murder applied in South Australia at the time of the subject incident. Since then it has been abolished by statute in consequence of the abolition of the concepts of felony and misdemeanour, and has been replaced by a more or less equivalent provision: Criminal Law Consolidation Act 1935, s 12A. The common law rule as formulated by this Court in R v Van Beelen (1973) 4 SASR 353 at 403 is that “it is murder to cause death in the commission of or in furtherance of the commission of a felony involving violence or danger”. [Emphasis added]

   [42] (1995) 63 SASR 417, 420.

5. Again, standing by itself, the underlined passage might at first blush be said to reflect a doctrine based on an a priori categorisation of different felonies as being, or not being, felonies involving violence or danger. However, it is equally open to the interpretation that the composite words “in the commission of or in furtherance of the commission of a felony involving violence or danger” mean that it is the particular commission of a felony in the case before the Court that must “involve violence or danger”. And, again, if the “page 403 statement” in Van Beelen is read together with the “page 400 statement”, the latter interpretation becomes the one more likely to be correct and, once again, congruent with the pronouncement of Windeyer J in Ryan reproduced above.

6. I also note that Perry J made the following additional remarks indicating an additional feature of the above passages in Van Beelen and The Queen v R:[43]

   Although there has been some uncertainty as to the precise formulation of the felony murder rule at common law, the law applicable in this State has been settled by the passage which appears in the joint judgment of Bray CJ, Mitchell and Zelling JJ in R v Van Beelen (1972) 4 SASR 353 cited by King CJ, which I repeat (at 403): “… it is murder to cause death in the commission of or in furtherance of the commission of a felony involving violence or danger.”

   That statement of the rule considered in the context of the preceding discussion at 400 et seq makes it plain that an act resulting in death may be caught by the rule even if it is not a violent act and even if it does not occur in the course of a felony the commission of which involves violence as opposed to danger. [Emphasis added]

   [43] (1995) 63 SASR 417, 424.

7. Thus, Perry J here emphasises that both the “page 400 statement” and the “page 403 statement” in Van Beelen refer to violence or danger disjunctively. The result is that the prosecution could theoretically elect in each case for “danger” rather than “violence”, with the result that “an act resulting in death may be caught by the rule even if it is not a violent act and even if it does not occur in the course of a felony the commission of which involves violence as opposed to danger”.

   D. The defendant while committing a felony of a type which is dangerous to life happens to kill another in circumstances where the actual felonious conduct involved violence [or danger] to some person.

8. The authority for this refinement of “variant C” is fairly sparse. It is usually said to be the following statement of Lord Birkenhead LC, for the House of Lords in Director of Public Prosecutions v Beard:[44]

   The first objection failed, the Court being of opinion (apart from the defence of drunkenness) that the evidence established that the prisoner killed the child by an act of violence done in the course or in the furtherance of the crime of rape, a felony involving violence. The Court held that by the law of England such an act was murder. No attempt has been made in your Lordships’ House to displace this view of the law and there can be no doubt as to its soundness.

   [44] [1920] AC 479, 493.

9. However, it may be noted that Beard involved a disturbing factual situation which very clearly established both a felony of a type which is dangerous to life and also that the particular felonious conduct involved violence and danger to the victim (who of course died in consequence of it). While the Court recognised that both of those elements were in fact present in that particular case, I admit to a real doubt as to whether the Court was really determining in the above short passage that both of those elements would always be required in a similar case. 

   E.The defendant while committing any felony happens to kill another in circumstances where the felonious conduct involved violence [or danger] to some person.

10. This was stated by Windeyer J in Ryan v the Queen[45] in 1967 to have been the position arrived at by the time of that decision. Thus Windeyer J stated (in the passage endorsed by the High Court in Arulthilakan[46]):[47]

    There was a time when a man was guilty of murder, and punished accordingly, if while doing any unlawful act he happened to kill another man, however unexpectedly and unintentionally.  This harsh rule became gradually mitigated.  By the 18th century, although a man who in the course of committing a crime unintentionally killed another might still for that reason be guilty of murder, this was only when the crime was a felony.  By the middle of the 19th century doubts had begun to be expressed about this doctrine ... The generally accepted rule of the common law today is, however, that an unintended killing in the course of or in connection with a felony is murder if, but only if, the felonious conduct involved violence or danger to some person. [Emphasis added]

    [45] (1967) 121 CLR 205.

    [46] (2003) 78 ALJR 257 at [27].

    [47] (1967) 121 CLR 205, 240-241.

11. In saying this, his Honour certainly did not include a condition that the felony must be of a type which is a priori dangerous to life; rather, his Honour specified that the particular “felonious conduct” of the defendant (ie, on the occasion of the commission of the foundational felony and irrespective of the particular felony committed) involved violence or danger to some person.

12. Professor Colin Howard agreed with, and strongly supported, the formulation of Windeyer J in Ryan.  Thus, in Howard Criminal Law, he recognised the pedigree of the a priori approach but concluded that it was inherently awkward and had been superseded. In a passage with which I respectfully agree, he observed:[48]

    In Victoria and South Australia it is murder for D to kill V during the commission of a felony other than abortion or attempted abortion by an act involving violence or danger to someone other than D. It is immaterial that D does not realise that his act is of this character. 

    …

    … traditional statements of the rule, such as the well-known statement quoted above from D.P.P. v. Beard, have referred to an act of violence committed in the course of a felony of violence, a formula now adopted, in effect, by statute in Victoria.  Traditional it may be, but there is a difficulty.  Such a form of words appears to lay down two separate requirements, one of which necessitates the identification of a class of felonies violent in themselves.  It would be difficult to identify such a class without putting a strained meaning on the word “violent”, for it would have to include not only arson, gaolbreak, and possibly larceny in a dwelling-house, which in themselves are not violent at all, but also … robbery, which requires no more than the threat of violence. Fortunately there seems to be no need to enter into such artificialities either at common law or under any statute intended to reproduce it.  The notable feature of the quotations made above from the judgments of the High Court in Ryan v. The Queen is that they avoid mentioning any separate requirement of a felony of violence.  Taylor and Owen JJ. speak of an act “in the course of the commission of a felony with violence.”  Windeyer J. refers to an act “in the course of or in connexion with a felony” and to the “felonious conduct” involving violence or danger.  And this surely must be the correct rule:  that what matters is not the abstract character of the felony itself but the manner in which it is carried out.  If D is committing a felony, any felony, and the manner in which he commits it involves danger to someone else which causes death, he is guilty of murder under the felony-murder rule, because what matters is not the incidental felony but the fact that D killed in the course of it.  [Emphasis added; Citations omitted]

    [48]   Professor C Howard, Criminal Law (Law Book, 4^th ed, 1982) 55-56, 60.

13. This was also the view taken in Gillies, The Law of Criminal Complicity where it was stated:[49]

    The felony-murder rule has been confirmed in its common law dimensions in South Australia as not requiring of the principal any more than the commission during a felony for which he has mens rea, of an act resulting in death, provided that this act has been a violent or dangerous one. [footnote cites Van Beelen (1973) 4 SASR 353]

    [49]   P Gillies, The Law of Criminal Complicity (Law Book, 1980) 107.

14. Similarly, in Bronitt & McSherry, Principles of Criminal Law it is stated: “In South Australia, the conduct causing death must be violent or dangerous”.[50]

    [50]   S Bronitt and B McSherry, Principles of Criminal Law (Law Book, 3^rd ed, 2010) 529. The somewhat Delphic footnote 162 immediately following is “R v Van Beelen (1973) 4 SASR 353; Ryan v The Queen (1967) 121 CLR 205”.

15. And much more recently in the decision of the High Court in IL v The Queen, Gageler J stated: [51]

    94. Murder under the second limb of s 18(1)(a) is constructive murder. Murder under that limb is taken to have been committed where “the act of the accused, or thing by him or her omitted to be done, causing the death charged, was … done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years”. Except for its identification of the foundational crime (as enacted in 1900 as an act obviously dangerous to life or as a crime punishable by death or penal servitude for life but as amended since 1989[52] as a crime punishable by imprisonment for life or for 25 years), the second limb of s 18(1)(a) replicates the common law crime of felony murder as understood in 1883[53].  The common law moved on, ultimately to hold that “an unintended killing in the course of or in connection with a felony is murder if, but only if, the felonious conduct involved violence or danger to some person”[54]. The statute did not. [Emphasis added]

    [51] (2017) 262 CLR 268 (Delivered 9 August 2017) 308-309. As noted above, Gordon J in IL v The Queen took a different view.

    [52]   See Crimes and Other Acts (Amendment) Act1974 (NSW), s 5(a) and Crimes (Life Sentences) Amendment Act 1989 (NSW), s 3 and Sch 1, item 2.

    [53]   Stephen and Oliver, Criminal Law Manual (1883), p 201.  See Ryan v The Queen (1967) 121 CLR 205 at 241.

    [54]   Ryan v The Queen (1967) 121 CLR 205 at 241.

16. I will not pursue these rather academic matters further. Suffice to say that one may discern from the above review a deal of fluidity, indeed inconsistency, in Judicial statements concerning the nature and content of the felony murder rule as at the time of commencement of s 12A in 1995.

    The appellants’ contention that s 12A CLC Act should be interpreted as only applying to offences that are a priori “dangerous to life”

17. The appellants heavily rely upon certain obiter dicta by King CJ (with whom Matheson, Millhouse and Duggan JJ concurred) in The Queen v R.[55] This decision is discussed above at paragraph [68] in the different context of an examination of the various possible iterations of the felony murder rule. However, in the present context of the correct construction of s 12A, the following two passages are particularly relevant:[56]

    The common law as to felony murder applied in South Australia at the time of the subject incident. Since then it has been abolished by statute in consequence of the abolition of the concepts of felony and misdemeanour, and has been replaced by a more or less equivalent provision: Criminal Law Consolidation Act 1935, s 12A. The common law rule as formulated by this Court in R v Van Beelen (1973) 4 SASR 353 at 403 is that “it is murder to cause death in the commission of or in furtherance of the commission of a felony involving violence or danger”. [Emphasis added]

    [55] (1995) 63 SASR 417, 420.

    [56] (1995) 63 SASR 417, 420.

18. Later, in the second relevant passage, his Honour stated:[57]

    As the Solicitor-General (Mr Doyle QC) observed, the argument on grounds of policy is really an attack on the felony murder rule itself. If the policy is accepted that the actual perpetrator should be liable for the unintended consequences of his actions in the course of the felony because in engaging in a violent or dangerous felony he must accept responsibility for what occurs in the course of that felony, even though unintended, there appears to be no reason of policy why other participants in the felony should not also have to accept the same responsibility. The felony murder rule is part of the common law and is now entrenched in the statute law of South Australia, in equivalent form, by s 12A of the Criminal Law Consolidation Act. [Emphasis added]

    [57] (1995) 63 SASR 417, 421.

19. In the above two emboldened passages, King CJ referred to the relationship between the felony murder rule and s 12A. Senior Counsel for the appellants fastened on the second only of those passages and submitted that King CJ’s judgment in The Queen v R[58]  was authority for two propositions. First, that the felony murder rule as at 1994-1995 required a felony that was a priori “dangerous to life”. Secondly, that that same rule (including a requirement that the foundational offence is a priori “dangerous to life”) “is now entrenched in the statute law of South Australia, in equivalent form, by s 12A of the Criminal Law Consolidation Act”.

    [58] (1995) 63 SASR 417, 420.

20. I must say that I consider that the judgment of King CJ is rather more nuanced than is here suggested. The use of the term “a more or less equivalent provision” in his Honour's first passage might, if used by someone other than King CJ, connote that the speaker was avoiding the burden of precise analysis and simply using convenient words of approximation. However, I have no doubt at all that King CJ carefully, and quite deliberately, chose those words to express the view (perhaps best seen as a caveat) that there were not insignificant differences[59] – the two were only “more or less equivalent”. Thus, while the requirement of “danger to life” is common to both, one difference between them perceived by his Honour might be that the variant C formulation of the felony murder rule referred to by his Honour deals with the matter of danger to life at the stage of an a priori classification of relevant felonies whereas the provision in s 12A deals with that same matter at the stage of the actual performance of a felony by the accused person. (And, of course, King CJ’s second emboldened reference must be read in the light of that continuing caveat in the first emboldened reference.)

    [59] The double negative is intentional.

21. However, in any event, I agree with the respondent that it is clear that the correct construction of s 12A had no part to play in the decision in The Queen v R,[60] that his Honour’s words were obiter, and that the words in s 12A are intractable.

    [60] (1995) 63 SASR 417.

    The Second Reading speech concerning the then proposed s 12A of the CLC Act

22. In support of their contention that s 12A should be interpreted as only applying to offences that are a priori “dangerous to life”, the appellants also heavily rely upon a short passage within the second reading speech made on 5 May 1994 by the Honourable KT Griffin (Attorney-General) when introducing the Criminal Law Consolidation (Felonies And Misdemeanours) Amendment Bill (a larger passage from which is reproduced above at paragraph [39]). That short passage was:

    The felony murder rule goes back a very long time in the history of the criminal law at common law. In general terms, it is murder if a person kills another by an act of violence committed in the course of the commission of a felony involving violence. [Emphasis added]

1. The Judge firmly directed the jury only to act on evidence in the case. Even if the jury speculated about the effects of methylamphetamine on Carver and Tenhoopen, the only evidence (which was unchallenged) was that it had a benign effect on Mitchell. There is no evidence that Carver and Tenhoopen were made more violent or aggressive by reason of its consumption as referred to by Mitchell.

2. In any event the Judge, as noted above, directed the jury that the impugned evidence was not admissible against Carver or Tenhoopen. However, it was admissible in the case against Mitchell. In that respect, it was one of a number of pieces of evidence led at the joint trial of four accused that was admissible in the case against one or some of the accused but not all. The law must generally assume that juries will only use evidence in the way in which a Judge directs.

3. Finally, Carver and Tenhoopen did not challenge Mitchell’s evidence that he drove them to Adelaide on the night the deceased was beaten and robbed, got out of Mitchell’s car, returned some time later, drove a short distance away and stopped to transfer cannabis into the boot of Mitchell’s car. This evidence gave rise to inferences which, together with the evidence of the deceased’s injuries, were sufficient to prove the appellants’ guilt of constructive murder. In this context, the impugned evidence of their consumption of methylamphetamine would have been well and truly submerged into the background of the totality of the evidence.

4. I conclude that no miscarriage of justice occurred. If it did, I would apply the proviso. I would reject this ground of appeal.

   Tenhoopen’s further grounds of appeal

5. In addition to adopting the ground of appeal of Carver above (which I would reject), Tenhoopen alone advances two further grounds as follows:

   7.A miscarriage of justice was caused by the learned trial Judge’s ruling to allow witness Scott Watts to continue to give his evidence via CCTV.

   8.A miscarriage of justice was caused by the learned trial Judge’s refusal of the application for mistrial relating to witness Scott Watt’s initial in court evidence and subsequent evidence via CCTV.

   The events at trial

6. Watts was a prosecution witness who deposed that Tenhoopen had made a number of incriminating admissions while in gaol in December 2018. (It may be noted that the prosecution also called evidence that Tenhoopen had confessed his involvement in the subject events to his then-girlfriend, Ms McCormack, on 9 October 2018 and also to a friend, Ms Carson, on the same date.)

7. Watts was scheduled to be called to give evidence on Tuesday, 6 October 2020. However, that day commenced with Mr Preston (the prosecutor) stating (in the absence of the jury):

   MR PRESTON:  The warrant that was issued on Thursday afternoon in relation to Mr Watts has been executed. I was in communication with police over the weekend and the information I have is quite disturbing in the sense that Mr Watts seems to be, or was at the time, very agitated. So, I’m going to have to step out before I call him to make an assessment to determine whether in fact I am going to call him.

   HIS HONOUR:  When do you anticipate doing that?

   MR PRESTON:  I anticipate doing it this morning. I have an expert witness who I will lead and then it is over to Mr Walker for effectively the balance of the morning and I will speak to Mr Watts while Mr Walker continues to progress the Crown case.

   HIS HONOUR:  All right.

8. Two other witnesses were then called before the jury by the prosecution. Following that evidence, the transcript appears as follows:

   MR PRESTON:  I call Scott Watts.

   HIS HONOUR:  Before you do; ladies and gentlemen, can I ask you to go out the back for a few moments while I sort something out with Mr Preston?

   JURY LEAVES COURT 11.04 A.M.

   HIS HONOUR:  I’ve got a note saying that the sheriff would like the defendants in their cells when Mr Watts comes in; is that your understanding?

   MR PRESTON:  He didn’t say as much but that would be appropriate.

   HIS HONOUR:  Is he ready to go?

   MR PRESTON:  He’s in the cells, it might take a little time to get him up here.

   HIS HONOUR:  We’ll adjourn for five minutes, we’ll get Mr Watts up here and then keep going.

   ADJOURNED 11.05 A.M.

   RESUMING 11.20 A.M.

   JURY PRESENT

   …

   MR PRESTON CALLS

   +SCOTT ROBERT WATTS AFFIRMED

   +EXAMINATION BY MR PRESTON

   QMr Watts, I am going to ask you some questions now but could you ensure that you answer the questions reasonably slowly and speak into the microphone so that everybody in the courtroom can hear.

   AYep.

   QCan I take you back to December 2018, were you in gaol at that time.

   AYes.

   QWhich institution were you in.

   AThe Remand Centre.

   QDid you have a cell all to yourself or did you share a cell with somebody.

   AI just wish to retract me statement from this here.

   QI will ask you again, did you have a cell to yourself or did you share a cell.

   ANo, I didn’t have a cell to meself but I wish to retract me statement.

   MR PRESTON:  I might have an application to make in the absence of the jury, your Honour.

   HIS HONOUR:  Ladies and gentlemen, I am sorry to do this to you but can I ask you to step outside again.

   JURY LEAVES COURT 11.24 A.M.

   MR PRESTON:  Can I ask that the witness leave the court?

   HIS HONOUR:  The difficulty is we are going to have to remove the accused first - I mean we can do that. Gentlemen, can I ask you to step outside.

   ACCUSED LEAVE COURT

   HIS HONOUR:  Mr Preston, did you advise Mr Watts he could have a screen?

   MR PRESTON:  I did. Sorry, he was aware of it, I quite frankly discouraged it in view of the applications that have been made, the resistance that has been made by various counsel during the course of the trial. When I told him that it could be available but effectively I would rather him not he didn’t object.

   WITNESS LEAVES COURT 11.25 A.M.

   HIS HONOUR:  He seemed to be turning away from the accused.

   MR PRESTON:  He did.

   ACCUSED ENTER COURT

   MR PRESTON:  My application is to cross-examine the witness on the voir dire to determine whether an application to have him declared hostile should be made, given his so-called retraction of his statement.

9. Counsel for all of the appellants objected to this suggested procedure and lengthy dialogue ensued. Eventually, Mr Preston requested an adjournment to speak with Watts (with notes to be made). The Court adjourned and later resumed with lengthy dialogue involving all counsel. Eventually, his Honour decided that a sworn statement would be obtained from Watts and the Court adjourned for the luncheon break when that could be done. The Court resumed after lunch thus:

   RESUMING 2.02 P.M.

   MR PRESTON:  I tender an affidavit that has been written by Paul Ward, investigating officer. The deponent in the affidavit is Scott Watts. Everybody at the bar table has a copy of it. The handwriting is a bit hard to read but Mr Walker has a good grasp of Detective Ward’s handwriting and he can read it to your Honour.

   HIS HONOUR:  Thank you. So your application is to what?

   MR PRESTON:  To have Mr Watts give evidence by way of CCTV. The section contemplates all or part of a witness’s evidence being given by way of CCTV. So the fact that he has commenced his evidence in the courtroom in my submission is no impediment to your Honour making an order in favour of CCTV, even though he has commenced his evidence.

10. Lengthy dialogue again ensued, each counsel opposing Watts giving evidence by closed-circuit television (CCTV) and applying for a mistrial. The Judge decided to hold a Basha inquiry concerning whether Watts should give his trial evidence in the courtroom or via CCTV. That proceeding was itself held via CCTV (in the absence of the jury) and commenced in the following way:

    ON VOIR DIRE MR PRESTON

    QEarlier today did you make an affidavit that was witnessed by Detective Sergeant Paul Ward.

    AYeah.

    QA document that you signed and Detective Paul Ward witnessed.

    AYep.

    QWas that about the prospect of perhaps giving evidence by CCTV.

    AYep.

    QThe original of that document should be in the court. Looking at the document produced, is that your signature at the bottom.

    AYeah, both pages, yes, it is.

    QDoes that document set out the reasons that you wish to give evidence by way of CCTV.

    AYeah, it does.

    EXHIBIT #VDP17 STATEMENT OF MR WATTS TENDERED BY MR PRESTON. ADMITTED ON VOIR DIRE.

    MR PRESTON:  I don’t have any further questions for you at the moment. Defence counsel will now ask you some questions.

11. That sworn statement by Watts (exhibit VDP17) was as follows:

    1220 Hrs   Taken by D/Sgt Ward
    Tuesday 6/10/20

    
    

    Scott Robert Watts
    D/B 23/8/74

    
    

    I Scott Watts wish to appear in Court via CCTV in the trial about the Para Vista murder.

    I don’t want to be in the Court because:

    ·I’m uncomfortable sitting anywhere near them.

    ·I feel intimidated.

    ·I’m scared of them.

    ·After this I know they’ll be coming for me.

    ·I’m petrified of them.

    ·They don’t know I’m in the cells at Court.

    ·I intend to tell the truth.

    ·I don’t want to be in the Court with the accused.

    ·I don’t want to give evidence but I know if I don’t I’m in trouble.

12. Watts was then cross-examined at some length by counsel for each of the defendants. The link was then deactivated and the proceedings (in the continued absence of the jury) resumed thus:

    MR PRESTON:  I think that evidence demonstrates that there is a proper basis for giving an order for CCTV.

    HIS HONOUR:  It establishes there was a proper basis, I think, right from the start and that might be the issue.

    MR PRESTON:  Yes, if your Honour is suggesting that perhaps there was an error of judgment not asking for CCTV before going to evidence I’ll have to own that.

    HIS HONOUR:  It seems to me, and I haven’t heard everyone’s submissions, but it seems to me that an attack in gaol and then the fact that he is a person who is possibly going to go back there at some stage, it is well known amongst prison population that giving evidence could give rise to a fear of reprisal, not necessarily from these accused.

    MR PRESTON:  I don’t think there is much more I can say by way of submissions except to say that, in my submission, that evidence clearly founds a proper application for evidence by way of CCTV.

13. In the dialogue that followed, all counsel agreed that there would have been a proper basis for the Judge to have ordered that Watts give his trial evidence by CCTV if that application had been made before he had commenced to give evidence. However, all counsel submitted that, having regard to what had occurred in the presence of the jury, the prosecution application for him to continue his evidence by CCTV should be refused. The Court was then adjourned for the Judge to consider matters overnight.

14. On Wednesday, 7 October 2020, the trial resumed at 9.43 am. After hearing some further submissions from Mr Boucaut, the Judge delivered his ruling concerning the use of CCTV for Watts’ further evidence as follows:

    HIS HONOUR: … In this matter this is an application by the prosecution and by Mr Watts to have his evidence continue by way of CCTV. I reserve the right to publish full reasons in due course. Time is not permitting me to give any reasons today.

    In my opinion the application is well founded and I grant the application for Mr Watts to give the rest of his evidence by closed-circuit television.

15. After some further dialogue, the Court was adjourned for defence counsel to consider their positions. The Court later resumed and counsel for each defendant confirmed their applications for a mistrial and made some further submissions. The Judge then delivered his ruling refusing the applications for a mistrial thus:

    HIS HONOUR: … I have listened to the application and it is a continuation of the application from yesterday. I refuse the application for a mistrial.  …

16. The jury later entered the Court and proceedings resumed with the Judge directing the jury thus:

    HIS HONOUR:  Ladies and gentlemen, I apologise for the delay but we’re ready to go now. We do try and keep these things to a minimum but there are some things out of my control here.

    Arrangements have now been made for Mr Watts to continue with his evidence, the evidence being transmitted to the courtroom by closed-circuit television. I warn you, you should not to draw any inference adverse to any of the accused on account of this arrangement nor should it affect the weight that you decide should be given to the evidence of Mr Watts. [Emphasis added]

17. Watts then gave his evidence by CCTV link and in turn was cross-examined by Mr Healy (for Tenhoopen). There was no cross-examination by other counsel and no re-examination. Shortly thereafter, the Judge delivered comprehensive written reasons for the above two rulings which appear in the Appeal Book.

    Tenhoopen’s Ground 7 of appeal: Continuing Watts’ evidence by CCTV

18. Section 13 of the Evidence Act 1929 relevantly provides as follows:

    13—Special arrangements for protecting witnesses from embarrassment, distress etc when giving evidence

    (1)     Subject to this section, if—

    (a)     it is desirable to make special arrangements for taking evidence from a witness in a trial in order to protect the witness from embarrassment or distress, to protect the witness from being intimidated by the atmosphere of the courtroom or for any other proper reason; and

    (b)     the facilities necessary for the special arrangements are readily available to the court and it is otherwise practicable to make the special arrangements; and

    (c)     the special arrangements can be made without prejudice to any party to the proceedings,

    the court should, on its own initiative, order that special arrangements be made for taking the evidence of the witness.

    …

    (7)     If, in a criminal trial, a court makes special arrangements for taking the evidence of a witness, the judge must warn the jury not to draw from that fact any inference adverse to the defendant, and not to allow the special arrangements to influence the weight to be given to the evidence.

19. As the Judge correctly observed:

    20. The purpose of s 13 is to protect witnesses from embarrassment, distress or from being intimidated by the atmosphere of the courtroom when giving evidence. It represents a clear policy decision that the special needs of witnesses deserve more consideration in relation to giving evidence. Giving evidence should not be so daunting that people are deterred from reporting serious crimes or from assisting in the prosecution of crime.

    21. The power to grant special arrangements for taking evidence to protect a witness from embarrassment or distress does not arise unless each of the three jurisdictional facts set out in s 13(1)(a)-(c) are satisfied. An application should be both plausible and reasonable, not based off a mere preference by a witness to give evidence in a particular way. [Citations omitted]

20. The initial reaction of Watts to the presence of the defendants in the courtroom would have been difficult to predict in advance. It may be noted that none of the defendants had requested in advance that Watts give his evidence by CCTV and it is impossible to say what the ruling of the Judge would have been if they had done so.[142]

    [142] And, of course, different views might have been taken by various of the defendants. 

21. However, once the above events had occurred, the question of whether Watts should continue to give evidence in the courtroom or by CCTV presented a binary choice with disadvantages attaching to each of the alternatives.

22. I consider that the decision to continue with CCTV was the better of the two alternatives. It was not wrong in law and did not in itself lead to a miscarriage of justice. After all, s 13 of the Evidence Act 1929 recognises that such situations may occur and mandates the use of CCTV provided that certain directions are given to the jury; and such directions were given.

23. It is also to be noted that s 13(4) of the Evidence Act 1929 specifically provides that “special arrangements”’ orders (including the taking of evidence by CCTV) may be made for the whole of a witness’s evidence or for only particular aspects of it (as in fact occurred here). Further, the Act contemplates that such orders may be made concerning witnesses who have ‘been subjected to threats of violence or retribution in connection with the proceedings’ or who have ‘reasonable grounds to fear violence or retribution in connection with the proceedings’. It is not unusual that such witnesses who have been subjected to threats of violence or retribution, or who fear such threats, may evince some fear or trepidation without causing a miscarriage of justice.

24. I conclude that no miscarriage of justice occurred. If it did, I would again apply the proviso. I would reject this ground of appeal.

    Tenhoopen’s Ground 8 of appeal: Refusal of the applications for a mistrial

25. the initial behaviour of Watts before the jury and also the later change to the medium of CCTV in the light of Watts’ previous behaviour may have been prejudicial to the defendants to some degree.

26. However, to be realistic, Watts was a person who had been in gaol with the defendant Tenhoopen, and was giving evidence alleging that Tenhoopen had made admissions to him. When a person such as Watts gives such evidence against a defendant, there will very often be obvious signs of the enmity of the defendant and also the commensurate hesitancy or fear of the witness. While such signs may be reduced by the use of CCTV, they will often remain perceptible to the jury and must be dealt with by the Judge.

27. A decision to grant a mistrial in such a situation would be rare. It is obvious that such enmity by a defendant may exist not only if the evidence of making the admissions were true but even the more so if the evidence is actually untrue (a “verbal”) - with the commensurate hesitancy or fear also being the greater.

28. And so here. The defence of Tenhoopen was that the evidence of Watts was false and was due to Watts wishing to curry favour with the police; accordingly, apparent enmity by Tenhoopen (and the other defendants) toward Watts (and his commensurate fear of Tenhoopen and the other defendants) was equally unsurprising whether Tenhoopen (or the other defendants) were guilty or innocent.

29. I conclude that no miscarriage of justice occurred. If it did, I would again apply the proviso. I would reject this ground of appeal.

    PART E:  DISPOSITION OF THE APPEALS

30. Insofar as may be necessary, I would grant permission to appeal on each of the grounds considered above. However, for the above reasons, I would dismiss all of the appeals.

    
    

“It seems to this court that to say that adventurers are guilty of manslaughter when one of them has departed completely from the concerted action of the common design and has suddenly formed an intent to kill and has used a weapon and acted in a way which no party to that common design could suspect is something which would revolt the conscience of people today.
Mr. Caulfield [appearing for the prosecution], in his attractive argument, points to the fact that it would seem to be illogical that, if two people had formed a common design to do an unlawful act and death resulted by an unforeseen consequence, they should be held, as they would undoubtedly be held, guilty of manslaughter; whereas if one of them in those circumstances had in a moment of passion decided to kill, they would be acquitted altogether.  The law, of course, is not completely logical, but there is nothing really illogical in such a result, in that it could well be said as a matter of common sense that in the latter circumstances the death resulted or was caused by the sudden action of the adventurer who decided to kill and killed. Considered as a matter of causation there may well be an overwhelming supervening event which is of such a character that it will relegate into history matters which would otherwise be looked upon as causative factors.  Looked at in that way, there is really nothing illogical in the result to which Mr. Caulfield points.” [Emphasis added]

(2014) 249 A Crim R 461 at 475 [79] per Hidden J (Bathurst CJ agreeing at 463 [1]), 483-485

[128]-[132] per R A Hulme J (Bathurst CJ agreeing at 463 [2]).