Taylor v The State of Western Australia

[2023] WASCA 190

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   TAYLOR -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 190

CORAM:   BUSS P

MAZZA JA

MITCHELL JA

HEARD:   11 JANUARY 2023

DELIVERED          :   5 SEPTEMBER 2023

PUBLISHED           :   1 FEBRUARY 2024

FILE NO/S:   CACR 193 of 2021

BETWEEN:   LYNETTE JOY TAYLOR

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

FILE NO/S:   CACR 194 of 2021

BETWEEN:   LYNETTE JOY TAYLOR

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   HALL J

File Number            :   INS 69 of 2020

Catchwords:

Criminal law - Conviction appeal - Appellant and two co‑accused jointly charged with murder - Appellant and two co‑accused convicted after trial of murder - The State alleged that one or both of the co‑accused were criminally responsible under s 7(a) of the Criminal Code (WA) - The State alleged that the appellant was criminally responsible under s 7(b), s 7(c) or s 7(d) of the Code - Whether the trial judge erred in law in directing the jury that the requirement for the appellant's criminal responsibility for murder, namely that a principal offender was criminally responsible under s 7(a), would be satisfied if the co‑accused were guilty on the basis that they acted in concert with each of them doing one or more acts in a series of acts which in combination caused the deceased's death - Whether the trial judge erred in his directions to the jury in respect of s 7(d) of the Code

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3)(b), s 30(4)
Criminal Code (WA), s 7, s 8, s 279

Result:

CACR 193 of 2021
Application for an extension of time to appeal granted
Leave to appeal granted
Appeal allowed
Judgment of conviction on count 1 set aside
Judgment of conviction on count 2 stands
A new trial of the appellant on count 1 be had

CACR 194 of 2021
Application for an extension of time to appeal granted
Leave to appeal refused
Appeal dismissed

Category:    A

Representation:

CACR 193 of 2021

Counsel:

Appellant	:	Mr A O Karstaedt
Respondent	:	Ms L E Christian SC

Solicitors:

Appellant	:	Anthony Karstaedt
Respondent	:	Director of Public Prosecutions (WA)

CACR 194 of 2021

Counsel:

Appellant	:	Mr A O Karstaedt
Respondent	:	Ms L E Christian SC

Solicitors:

Appellant	:	Anthony Karstaedt
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Awad v The Queen [2022] HCA 36; 2022) 275 CLR 421

Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469

Baker v Smith [2021] QCA 66

Ban v The State of Western Australia [2020] WASCA 91

Birdsall v The State of Western Australia [2019] WASCA 79; (2019) 54 WAR 418

Campbell v The State of Western Australia [2016] WASCA 156; (2016) 50 WAR 331

Clarke v The State of Western Australia [2022] WASCA 6

Couzens v The State of Western Australia [2019] WASCA 54

Dimer v The State of Western Australia [2020] WASCA 111; (2020) 57 WAR 167

DKA v The State of Western Australia [2019] WASCA 123

Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47

HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978

Hofer v The Queen [2021] HCA 36; (2021) 274 CLR 351

Jackson v Horne (1965) 114 CLR 82

L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545

MKP Management Pty Ltd v Shire of Kalamunda [2020] WASCA 130; (2020) 56 WAR 56

O'Dea v The State of Western Australia [2022] HCA 24; (2022) 273 CLR 315

OKS v The State of Western Australia [2019] HCA 10; (2019) 265 CLR 268

Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316

Patel v The Queen [2012] HCA 29; (2012) 247 CLR 531

Pickett v The State of Western Australia [2020] HCA 20; (2020) 270 CLR 323

Puntigam v The State of Western Australia [2023] WASCA 46

R v Barlow [1997] HCA 19; (1997) 188 CLR 1

R v Beck [1990] 1 Qd R 30

R v Dookheea [2017] HCA 36; (2017) 262 CLR 402

R v Fowler [2012] QCA 258; (2012) 225 A Crim R 226

R v Hawke [2016] QCA 144; (2016) 259 A Crim R 114

R v Jervis [1993] 1 Qd R 643

R v Keenan [2009] HCA 1; (2009) 236 CLR 397

R v Melling [2010] QCA 307

R v Wyles; Ex parte Attorney‑General [1977] Qd R 169

Royall v The Queen (1991) 172 CLR 378

Simic v The Queen (1980) 144 CLR 319

Skelly v The State of Western Australia [2020] WASCA 3

Swan v The Queen [2020] HCA 11; (2020) 269 CLR 663

Taylor v The State of Western Australia [2016] WASCA 210

TB v The State of Western Australia [2015] WASCA 212; (2015) 49 WAR 297

The State of Western Australia v Gittos [2021] WASCSR 52

Ward v The Queen (1997) 19 WAR 68

Warren v The Queen [1987] WAR 314

BUSS P & MAZZA JA:

1. The appellant, Lynette Joy Taylor, appeals against conviction (CACR 193 of 2021) and sentence (CACR 194 of 2021). 

2. Ms Taylor, her brother, John Robert Starr, and her son, Raymond George Gittos, were jointly charged on indictment with two offences, each of which was alleged to have been committed on Thursday, 27 February 2020.

3. Count 1 alleged that, at Merriwa or elsewhere in Western Australia, the accused murdered Ms Taylor's husband, Noel Joseph Taylor, contrary to s 279 of the Criminal Code (WA) (the Code). Count 2 alleged that, at Yanchep, the accused wilfully and unlawfully damaged property, namely a Holden Rodeo motor vehicle, by fire, contrary to s 444(1)(a) of the Code.

4. On 14 September 2021, upon arraignment before Hall J, Ms Taylor, Mr Starr and Mr Gittos pleaded not guilty to the charge of murder alleged in count 1.  Ms Taylor and Mr Gittos, but not Mr Starr, pleaded guilty to the alternative charge of being an accessory after the fact to murder.[1]  Ms Taylor and Mr Gittos pleaded guilty to the charge of arson alleged in count 2, while Mr Starr pleaded not guilty.

   [1] ts 97 - 98.

5. On 7 October 2021, after a trial before Hall J and a jury, Ms Taylor, Mr Starr and Mr Gittos were found guilty of murder as alleged in count 1.  Mr Starr was also found guilty of arson as alleged in count 2.[2]

   [2] ts 1806 - 1807.

6. On 11 November 2021, Hall J sentenced Ms Taylor, for the offence of murder, to life imprisonment with a minimum non‑parole period of 23 years, to commence on 19 March 2020.  His Honour sentenced Ms Taylor, for the offence of arson, to 4 years 6 months' imprisonment with eligibility for parole, to be served concurrently with her life sentence.  Both Mr Starr and Mr Gittos were also sentenced on count 1 to life imprisonment with a minimum non‑parole period of 23 years.[3]  On count 2, Mr Gittos was sentenced to 4 years 6 months' imprisonment with eligibility for parole, to be served concurrently with his life sentence.  On count 2, Mr Starr was sentenced to 5 years' imprisonment with eligibility for parole, to be served concurrently with his life sentence.

   [3] See The State of Western Australia v Gittos [2021] WASCSR 52 [108].

Ms Taylor's appeals

1. Ms Taylor appeals against her conviction and sentence on count 1 only.  The appeal notices were filed about three weeks out of time.  The short delay has been explained adequately.

2. In her conviction appeal, Ms Taylor advances three grounds which allege errors of law by the trial judge in his Honour's directions to the jury in connection with her criminal responsibility under s 7 of the Code. In her sentence appeal, Ms Taylor alleges that the minimum non‑parole period of 23 years was manifestly excessive.

3. In each appeal, the question of leave to appeal on the ground or grounds relied upon by Ms Taylor was referred to the hearing of the appeal.

4. On 5 September 2023, this court:

   (a)granted an extension of time to appeal against conviction, granted leave to appeal against conviction, allowed the appeal against conviction, set aside the judgment of conviction on count 1 and ordered a new trial of Ms Taylor on that count; and

   (b)dismissed the appeal against sentence.

5. These are our reasons for making those and other related orders.

6. We will deal first with the conviction appeal.

The State's case at trial

1. The State's case at trial was, in summary, as follows.

2. In 2020, Mr Taylor and Ms Taylor had been married for about 7½ years.  They lived together in a house in the Perth suburb of Merriwa.[4]

   [4] ts 117.

3. Ms Taylor had been married twice previously, and had children with her previous husbands.  Mr Gittos is one of those children.[5]

   [5] ts 118.

4. As the prosecutor put it in her opening address, Mr Taylor and Ms Taylor's marriage 'was not without its ups and downs'.[6]  The State alleged that Ms Taylor had made statements to a number of people, including her co‑accused, that Mr Taylor drank too much and had verbally and physically abused her.  She also alleged that she had been 'raped' by Mr Taylor.

   [6] ts 117.

5. The State's case was that Ms Taylor wanted her husband killed.  The State alleged that Mr Starr and Mr Gittos, motivated by anger towards Mr Taylor who they believed had 'raped' and abused Ms Taylor, agreed to kill him and had, before 27 February 2020, made threats to do so.

6. The State's case was that before or at the latest on 27 February 2020, Ms Taylor, Mr Starr and Mr Gittos made a plan to kill Mr Taylor.  The existence of this plan was fundamental to the State's case against Ms Taylor on count 1. 

7. The trial judge made that clear in his summing up, when his Honour directed the jury:[7]

   The prosecution relies on the existence of a plan to kill Mr Taylor, which they say was formulated at the latest earlier on the day of the killing.

   The prosecution say to you that you can infer the existence of the plan by looking at the evidence of what the accused said and did beforehand, during and after the killing.

   The prosecution case against Lynette Taylor depends on you being satisfied beyond reasonable doubt that prior to any killing she knew that Noel Taylor was to be killed either because she counselled or procured it, or because she did things intended to assist in that killing.

   If she did not have such prior knowledge [then] she could not be guilty of murder.

   [7] ts 1754.

8. The State's case was that the plan to kill Mr Taylor involved Mr Starr and Mr Gittos ambushing Mr Taylor when he returned home from work and killing him.  Mr Taylor's body was then to be placed in a vehicle and driven to a bush location where the vehicle with his body in it would be set alight and burnt.

9. The salient facts of 27 February 2020, as presented by the State at trial, were these.  That morning Mr Taylor, as usual, left the Merriwa house for work.  He was expected to return that afternoon.  Sometime in the morning, Mr Starr arrived at the house.  Ms Taylor contacted Mr Gittos and told him to come to the house.  Mr Gittos then caught a train to Butler, where Ms Taylor picked him up and brought him to the Merriwa house.  CCTV footage from a BP service station in Mindarie showed that between 2.40 pm and 2.50 pm, Ms Taylor purchased 44 litres of petrol and 24 litres of diesel, for which she paid cash.  Ms Taylor put some of the petrol and diesel into containers and later took those containers to the bush location.

10. Mr Taylor returned home from work at about 4.45 pm.  Shortly afterwards, Mr Taylor was set upon by either or both of Mr Starr and Mr Gittos in the rear patio area of the house.  Mr Taylor was overpowered and then incapacitated by violent means, including by punching, beating or kicking him, and perhaps by striking him with a baseball bat.  The State was unable to say exactly what happened to Mr Taylor after he returned home.

11. The State's case, supported by CCTV footage, was that about 20 minutes after Mr Taylor arrived home, his silver Holden Rodeo utility motor vehicle was driven from the house by Mr Starr and Mr Gittos, with Mr Taylor in it.  By then, Mr Taylor was either dead or incapacitated.  Ms Taylor followed, driving her Hyundai Kona SUV motor vehicle, with her elderly mother Valray Starr as a passenger, less than 30 seconds later.  The evidence was insufficient to establish whether Mr Taylor was dead or alive when his vehicle was driven from his home.[8]

    [8] ts 120.

12. Mr Starr and Mr Gittos drove Mr Taylor's vehicle to an area of bushland off Old Yanchep Road in Yanchep.  At the bush location, Mr Taylor's vehicle, along with his body, was set alight and burnt using the petrol and diesel purchased by Ms Taylor.  Mr Taylor's body was burnt so badly that the forensic pathologist who later examined his remains was unable to determine the cause of death.[9] 

    [9] See the evidence of Dr White, ts 618 - 619.

13. Shortly before 6.00 pm on 27 February 2020, John and Jason Neave, who were living at a property on Old Yanchep Road, saw black smoke in the vicinity.  John Neave went to investigate and saw a woman in a Hyundai Kona SUV motor vehicle, who the State alleged was Ms Taylor.  He also saw a man lying under a tree, who the State alleged was Mr Gittos.  John Neave went home and at about 6.14 pm that day reported what he had seen to police.

14. Valray Starr, the mother of Ms Taylor and Mr Starr, gave a statement dated 1 April 2020 to police.  By the time of the trial, Ms Valray Starr had died.  Her statement was read into evidence.  When she made the statement she was aged 82 years.  In the statement, Ms Valray Starr said that she had lived with Mr Taylor and Ms Taylor at the Merriwa house.  Although she had seen Mr Taylor being verbally abusive to Ms Taylor, she had not witnessed any acts of physical violence by Mr Taylor towards Ms Taylor.  Ms Valray Starr said that on 27 February 2020, after Mr Taylor arrived home, she went to her room and removed her hearing aids.  Sometime later on that day, Ms Taylor woke her.  She then accompanied her daughter to a location on Old Yanchep Road, where she recalled seeing a white utility.  Ms Valray Starr said that Mr Starr and Mr Gittos eventually got into the backseat of Ms Taylor's vehicle, and they all returned to the Merriwa house.

15. On Tuesday, 3 March 2020, police made enquiries of Ms Taylor to ascertain whether Mr Taylor was missing.  Ms Taylor told Constable Von Bargen that she had last seen Mr Taylor the previous Thursday; that they had had a fight; and that Mr Taylor had thrown her mobile telephone in the swimming pool, before leaving to go to Northam.  Ms Taylor showed no concern about the fact that Mr Taylor had not been heard from since the previous Thursday.  Later that day, on 3 March 2020, Ms Taylor told Constable Von Bargen that Mr Taylor had left the house in his Holden Rodeo utility and that he had not arrived at work that day.  Also on 3 March 2020, Ms Taylor spoke to Sergeant Robinson.  In that conversation, Ms Taylor mentioned that she had been subject to domestic violence and that Mr Taylor had been paranoid about someone being out to get him.

16. In the afternoon of 4 March 2020, Ms Taylor went to the Wanneroo police station and reported Mr Taylor missing.  At the Wanneroo police station, Ms Taylor told Senior Constable Townsend that she had been subjected to threats and intimidation by Mr Taylor and that he had prevented her from having any control over the family finances.  She said that, following an argument, Mr Taylor had left the house at around 5.30 pm on 27 February 2020 in his utility.  Ms Taylor repeated that Mr Taylor was paranoid and thought that someone was out to get him. 

17. On 8 March 2020, a couple, who were bushwalking in the Yanchep National Park, saw Mr Taylor's burnt vehicle.  The discovery was reported to a staff member of the Yanchep National Park's visitors' centre.  Two rangers attended the scene and looked inside the vehicle.  The police were then called.  Two police officers arrived, looked inside the vehicle and saw a skull.  A subsequent examination of Mr Taylor's burnt remains established his identity via dental records.

18. On 9 March 2020, police officers intercepted a telephone call between Ms Taylor and Mr Starr.  During this call Mr Starr also spoke to Mr Gittos.  Mr Starr mentioned an agreement that he and Mr Gittos had made, but did not refer to its detail.

19. In another intercepted telephone call on 13 March 2020, between Ms Taylor and Mr Gittos, they discussed, on the State's case, that on the evening of the alleged offence they supposedly visited a friend.  The State alleged that Ms Taylor and Mr Gittos were rehearsing a false story about what they had been doing that afternoon.

20. In another intercepted telephone conversation on 14 March 2020, between Ms Taylor and Mr Gittos, the State alleged that they discussed a false story about what they had been doing on the evening of the alleged offence. 

21. Ms Taylor was interviewed under caution by police on three occasions, namely on 17, 19 and 24 March 2020.  Ms Taylor denied, in essence, being involved with Mr Taylor's death.  However, the State's case was that Ms Taylor told police conflicting things at different points in her interviews, and that she was not truthful in them.  In particular, she lied to the police about why she had purchased the fuel on 27 February 2020.  The State alleged that this lie was told out of a consciousness of guilt.

The defence cases at trial

1. The defence cases at trial were, in summary, as follows.

2. Mr Starr elected to give evidence in his defence.  His evidence was, in essence, that Mr Gittos killed Mr Taylor at the instigation of Ms Taylor.  Mr Starr alleged that Mr Gittos alone beat Mr Taylor to death, and that he did not aid Mr Gittos to do so.  His case was that Mr Gittos and Ms Taylor planned the killing of Mr Taylor in order to remove the ongoing threat of abuse posed by Mr Taylor.  Mr Gittos was also motivated by his deep and enduring anger towards Mr Taylor due to the violence inflicted upon his mother.  Ms Taylor was also motivated by a desire to receive the Merriwa house in which she and Mr Taylor lived, and Mr Taylor's other assets, upon his death.

3. Ms Taylor elected to give evidence in her defence.  She denied having any involvement in Mr Taylor's murder.  According to her, it was Mr Starr, and Mr Starr alone, who killed Mr Taylor with a baseball bat on the back patio of her house.  Ms Taylor accepted, in essence, that she did not like her husband, but maintained that she did not want him dead.  She denied any plan to kill Mr Taylor.  She also denied having counselled or procured anyone to kill him or having done anything that aided or was intended to aid in his killing.  Ms Taylor accepted, however, that she had done acts which made her an accessory after the fact to the killing.

4. Mr Gittos elected not to give evidence.  In broad terms, his defence was the same as Ms Taylor's.

The statutory framework

1. At the material time, the offence of murder was defined in s 279 of the Code, relevantly, as follows:

   (1)If a person unlawfully kills another person and -

   (a)the person intends to cause the death of the person killed or another person; or

   (b)the person intends to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person; or

   (c)the death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life,

   the person is guilty of murder.

   Alternative offence: s 280, 281, 283, 284, 290 or 291 or Road Traffic Act 1974 s 59.

2. Sections 7, 8, 9 and 10 of the Code specify who may be parties to an offence as follows:

   7.Principal offenders

   When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say -

   (a)Every person who actually does the act or makes the omission which constitutes the offence;

   (b)Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

   (c)Every person who aids another person in committing the offence;

   (d)Any person who counsels or procures any other person to commit the offence.

   In the fourth case he may be charged either with himself committing the offence or with counselling or procuring its commission.

   A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

   Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission.

   8.Offence committed in prosecution of common purpose

   (1)When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.

   (2)A person is not deemed under subsection (1) to have committed the offence if, before the commission of the offence, the person -

   (a)withdrew from the prosecution of the unlawful purpose; and

   (b)by words or conduct, communicated the withdrawal to each other person with whom the common intention to prosecute the unlawful purpose was formed; and

   (c)having so withdrawn, took all reasonable steps to prevent the commission of the offence.

   9.Counselled offence, mode of execution immaterial

   When a person counsels another to commit an offence, and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counselled or a different one, or whether the offence is committed in the way counselled, or in a different way, provided in either case that the acts constituting the offence actually committed are a probable consequence of carrying out the counsel.

   In either case the person who gave the counsel is deemed to have counselled the other person to commit the offence actually committed by him.

   10.Term used: accessory after the fact

   (1)A person who, knowing that another person has committed an offence, receives or assists that other person in order to enable that other person to escape punishment is said to become an accessory after the fact to the offence.

   (2)A person does not become an accessory after the fact to an offence committed by the person’s spouse by receiving or assisting that spouse.

The State's reliance upon s 7 of the Code at trial

1. The prosecutor alleged, in her opening and closing addresses, that Mr Starr and Mr Gittos were guilty of Mr Taylor's murder as parties to the offence under s 7(a) of the Code, on the basis that each did acts, with the requisite intention, which killed Mr Taylor. Mr Starr and Mr Gittos intended either to cause Mr Taylor's death or to cause him a bodily injury that, when considered objectively, was of such a nature as to endanger or be likely to endanger his life. Alternatively, Mr Starr and Mr Gittos were guilty of Mr Taylor's murder as parties to the offence under s 7(a) because, with the requisite intention, they each did at least one act in a series of acts that, in combination, caused Mr Taylor's death. Alternatively, if either Mr Starr or Mr Gittos alone did an act or acts, with the requisite intention, which caused Mr Taylor's death, the other of them was guilty as a party to the offence under s 7(b) or s 7(c) of the Code because he did an act or acts for the purpose of enabling or aiding the other accused to kill Mr Taylor or he aided the other accused to kill Mr Taylor, knowing that the other accused intended to kill Mr Taylor or to cause him an objectively life‑threatening injury.

2. The State's case against Ms Taylor on the charge of murder was put on a different basis. The State did not allege, as against Ms Taylor, that she was criminally responsible under s 7(a) of the Code. Instead, the State's case against Ms Taylor was that she did an act or acts for the purpose of enabling or aiding one or both of Mr Starr and Mr Gittos to intentionally kill Mr Taylor or that she aided one or both of Mr Starr and Mr Gittos to intentionally kill Mr Taylor, and she was therefore a party to the offence under s 7(b) or s 7(c) of the Code. Alternatively, Ms Taylor was guilty of Mr Taylor's murder as a party to the offence under s 7(d) of the Code in that she counselled or procured one or both of Mr Starr and Mr Gittos to intentionally kill Mr Taylor.

3. The State did not rely upon s 8(1) of the Code as a source of criminal responsibility for any of the accused.

4. The prosecutor outlined, in her opening address, the State's case against Ms Taylor, on the basis that she did an act or acts for the purpose of enabling or aiding the intentional killing of Mr Taylor or that she aided in the intentional killing, as follows:[10]

   The State says the following are acts that were done by Lynette Taylor for the purposes of enabling or aiding one or both of the other accused to intentionally kill Noel Taylor, which she knew was going to happen or these things aided in the commission of the offence of murder, that is, purchasing petrol and diesel in circumstances where she knew it was going to be used to dispose of Noel Taylor's body, and that emboldened the others to commit murder by providing them with the means to dispose of the body without forensic detection, provided a place for the killing to take place, summonsed her son Raymond Gittos to her home to help John Starr on 27 February knowing that he was required to participate in the killing of Noel Taylor, picking up Raymond Gittos from the train station for that same reason.

   [10] ts 134.

5. The prosecutor continued:[11]

   In the case of all the accused, the following acts are each capable of amounting to aiding the person or persons who killed Noel Taylor, that is, all of them being physically present when Noel Taylor was killed and encouraging the killing of Noel Taylor, being available to overcome any resistance by Noel Taylor, being available to prevent Noel Taylor from obtaining assistance, restraining or assisting to restrain Noel Taylor while he was bashed, by obtaining or providing a weapon used in killing him.

   In the case of all accused, if Noel Taylor wasn't already dead when his vehicle was set alight, the following acts are capable of amounting to aiding by rendering or helping to render him unconscious.  Helping put him in the vehicle, by providing the petrol or diesel, by pouring the petrol or diesel, by providing the means to light the fire, by lighting or helping to light the fire.

   The State says that if Noel Taylor was not dead when the fire was lit, any of the accused who knew that and played a role in lighting the fire or helping to light it must have intended to cause his death.

   [11] ts 134 - 135.

6. The prosecutor did not, in her opening address, deal specifically with the factual basis for the State's contention that Ms Taylor counselled or procured the intentional killing of Mr Taylor.

The grounds of appeal

1. The grounds of appeal are as follows:

   1.The learned trial judge erred in his directions to the jury with regard to s 7(d) of the Criminal Code, thereby giving rise to a miscarriage of justice:

   (a)by not directing the jury correctly as to what was meant or connoted by (a) 'counsels' and (b) 'procures' as they appear in s 7(d), and/or by directing the jury as to their meanings in a way that was inconsistent, unclear or confusing;

   (b)by directing the jury in part of the directions to the effect that 'counsels or procures' in s 7(d) are coextensive, rather than alternatives;

   (c)by failing to direct the jury that to be liable as (a) a counsellor and (b) a procurer, the commission of the offence by the principal had to have been as a consequence of and caused by the counselling or procuring;

   (d)[abandoned at the hearing of the appeal].[12]

   2.The learned Judge erred in law in directing the jury to the effect that a requirement for the appellant's liability for murder, namely that a principal committed the murder, would be satisfied if the co‑accused were guilty on the basis that they acted in concert each doing one or more acts in a series of acts which in aggregate caused the death of the deceased, which was not a valid basis in law for establishing that the co‑accused committed the murder, giving rise to a miscarriage of justice.

   3.In the alternative to Ground 2, the conviction should be set aside because of a wrong decision on a question of law by the learned Judge in that his Honour directed the jury to the effect that a requirement for the appellant's liability for murder, namely that a principal committed the murder, would be satisfied if the co‑accused were guilty on the basis that they acted in concert each doing one or more acts in a series of acts which in aggregate caused the death of the deceased, which was not a valid basis in law for establishing that the co‑accused committed the murder.

   [12] Appeal ts 42.

2. Ground 1 impugns the trial judge's directions on s 7(d) of the Code. Grounds 2 and 3 impugn his Honour's directions on s 7(a). The grounds do not challenge his Honour's directions on s 7(b) or s 7(c).

The organisation of the balance of these reasons

1. It is convenient to deal first with grounds 2 and 3. Although the trial judge's directions on s 7(a) of the Code related to Mr Starr and Mr Gittos, those directions are of critical significance in Ms Taylor's case because, as the majority of the High Court held in O'Dea v The State of Western Australia,[13] criminal responsibility under s 7(b), s 7(c) and s 7(d) of the Code requires that another person (or persons) actually do the act or make the omission which attracts criminal responsibility under s 7(a). His Honour correctly instructed the jury that before Ms Taylor could be found guilty of murdering Mr Taylor, it was necessary for the State to prove beyond reasonable doubt that either or both of Mr Starr and Mr Gittos were criminally responsible under s 7(a).

   [13] O'Dea v The State of Western Australia [2022] HCA 24; (2022) 273 CLR 315 [62] (Gordon, Edelman & Steward JJ).

Grounds 2 and 3 - the relevant directions

1. On the State's case, four possible scenarios were open on the evidence, which, if accompanied by the requisite intention, made one or the other or both of Mr Starr and Mr Gittos criminally responsible for Mr Taylor's murder under s 7(a) of the Code.

2. The four possible scenarios were these:[14]

   1.Mr Starr assaulted Mr Taylor, resulting in injuries that were the sole cause of his death; or

   2.Mr Gittos assaulted Mr Taylor, resulting in injuries that were the sole cause of his death; or

   3.each of Mr Starr and Mr Gittos inflicted injuries which, in each case, were by themselves sufficient to cause Mr Taylor's death; or

   4.each of Mr Starr and Mr Gittos inflicted injuries which, in each case, were not by themselves sufficient to cause Mr Taylor's death, but which in combination were fatal.

   [14] ts 1541 - 1542.

3. As we have mentioned, the State's case against all of the accused included that they were aiders under s 7(b) or s 7(c) of the Code. His Honour's directions under s 7(b) and s 7(c), in respect of Ms Taylor, are not challenged in this appeal. They can be put to one side.

4. Ms Taylor does not contend that the trial judge erred in his directions with respect to the first three scenarios set out at [50] above. Grounds 2 and 3 are focused solely upon his Honour's directions in respect of the fourth scenario set out at [50] above.

5. His Honour gave the jury a document titled 'Question Trail' to assist the jury in its deliberations.  His Honour gave a draft of the document to the prosecutor and defence counsel.  The final version of the 'question trail document' was settled by his Honour after discussion between his Honour, the prosecutor and defence counsel.[15]

   [15] ts 1531, 1641 ‑ 1642, 1724, 1729, 1737 ‑ 1740.

6. The question trail document instructed the jury in relation to the murder charge against Mr Starr, relevantly, as follows:

   1.Did John Starr either: a) kill Noel Taylor (that is, did he do an act that caused the death of Noel Taylor either alone or as part of a series of acts done in concert with Raymond Gittos)? or b) aid Raymond Gittos to kill Noel Taylor (that is, did he do an act that assisted Raymond Gittos to kill Noel Taylor with the intention of providing such assistance).

   If 'yes' go to question 2.

   If 'no' go to question 3.

   2.At the time of the killing did John Starr intend to kill Noel Taylor or to do him an injury that was, or was likely to be, life‑endangering?

   If 'yes' guilty of murder.

   If 'no' not guilty of murder but guilty of manslaughter. (emphasis added)

7. The question trail document included identical instructions in relation to the murder charge against Mr Gittos.

8. The trial judge's oral directions in his summing up were, relevantly, as follows:[16]

   In some cases, two people may act in concert, each doing acts which in aggregate cause the death of another.  It may not be possible to determine exactly who did what, but it may be possible to be satisfied that they acted together, with the same knowledge and intention and, in that event, both would be responsible for the acts done.

   This may be relevant in considering the evidence against John Starr and Raymond Gittos.  For example, if you were satisfied that they both delivered blows whilst acting together, and that death was the combined effect of multiple blows delivered by them both, then both would be responsible for the death.  (emphasis added)

   [16] ts 1750.

9. His Honour directed the jury that the question trail document should be treated by them 'as a supplement or adjunct to the oral directions that I am giving you.  You need to read and use the question trail in the context of the directions that I've given you as a whole'.[17]  His Honour then proceeded to explain the question trail document.

   [17] ts 1756.

10. No objection to the relevant instructions in the question trail document or the relevant oral directions was made at trial.  That is unsurprising because, when they were given, the directions reflected the law as it had been understood and applied in Western Australia for many years.

Grounds 2 and 3 - the relevant law

1. When the trial judge gave the impugned directions, the law in this State as to the operation of s 7(a) of the Code was that the phrase in s 7(a), 'person who actually does the act', extended to '[a]ll persons who actually do the act or one or more acts in the series which constitutes or constitute the offence'.[18] Criminal responsibility under s 7(a) arose where there were several persons acting in concert, each doing some act which, in aggregate, would constitute the offence if done by one person. See Warren v The Queen;[19] L v The State of Western Australia.[20]

   [18] R v Wyles; Ex parte Attorney‑General [1977] Qd R 169, 177.

   [19] Warren v The Queen [1987] WAR 314, 328 - 329 (Franklyn J).

   [20] L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545 [32] (Martin CJ, Mazza JA & Mitchell J).

2. However, on 10 August 2022, after Ms Taylor's trial and after she commenced her appeal against conviction, the High Court delivered judgment in O'Dea.

3. In O'Dea, the appellant and his co‑accused, Jacob Webb, were tried in the District Court on a count which alleged that the appellant and Mr Webb, with intent to maim, disfigure, disable or do some grievous bodily harm to Alimamy Koroma, unlawfully did grievous bodily harm to Mr Koroma, contrary to s 294(1) of the Code. The jury returned a verdict of guilty, as charged, in respect of the appellant. The jury was unable to agree upon a verdict in respect of Mr Webb. Later, Mr Webb was re‑tried and convicted of the alternative offence of unlawfully doing grievous bodily harm to another, contrary to s 297(1) of the Code.

4. At the trial of the appellant and Mr Webb, the prosecutor submitted in his closing address that, while it was not possible to be certain that the appellant had caused Mr Koroma's traumatic brain injury (which constituted the grievous bodily harm), it was more likely to have been caused by the appellant than Mr Webb.  It was submitted that the appellant had inflicted the majority of the blows upon Mr Koroma, including with a weapon similar to a hockey stick.  However, as a result of each of the appellant and Mr Webb having inflicted a number of blows upon Mr Koroma, it was possible that the grievous bodily harm had been caused by a combination of their acts.

5. The State's case against the appellant and Mr Webb relied upon s 7(a) and s 7(c) of the Code. The State did not rely upon s 8(1) of the Code.

6. The trial judge directed the jury, in relation to the pathway to conviction based upon s 7(a), that the jury could convict the appellant if they were satisfied beyond reasonable doubt of four matters. First, Mr Koroma suffered a bodily injury that amounted to grievous bodily harm. Secondly, the appellant and Mr Webb were acting in concert, each of them doing one or more of the acts which caused the traumatic brain injury to be done to Mr Koroma. Thirdly, the relevant accused's acts were unlawful. Fourthly, in doing the relevant acts, the relevant accused intended to disable or to cause grievous bodily harm to Mr Koroma.

7. This court dismissed the appellant's appeal against conviction.

8. However, a majority of the High Court (Gordon, Edelman & Steward JJ; Kiefel CJ & Gageler J dissenting) allowed the appellant's appeal, set aside his conviction and ordered a new trial.

9. Gordon, Edelman and Steward JJ held, in effect, that [67]:

   (a)where two accused persons are charged with unlawfully doing grievous bodily harm and the prosecution relies on s 7(a) of the Code, for the prosecution to succeed in establishing criminal responsibility on the part of both accused persons it will be necessary that the prosecution prove against each of them an act causing injuries amounting to grievous bodily harm, as well as the necessary intent;

   (b)in other words, the act 'causing' the grievous bodily harm must be the 'actual' and not the attributed act of the accused person; and

   (c)the act that constitutes the offence of unlawfully doing grievous bodily harm must be the one that the accused person 'actually does'.

10. Their Honours commented that '[t]he clearest instance in which s 7(a) will apply, using the example of a fatal stabbing, is where the accused person's actual act is proved to have been the only act that caused the victim's death' [69]. Their Honours continued [69]:

    It will also apply, in the same manner, where the death is the result of the acts of two or more people acting independently, and where the acts of each person were sufficient to cause the death. Thus, if the accused person and another person both fatally stab a victim without any underlying common purpose or joint criminal enterprise and the victim dies, it is not open to either the accused person or the other person to deny criminal responsibility for their acts on the basis that, but for their acts, the death would have resulted from the acts of the other individual.

11. Gordon, Edelman and Steward JJ did not refer, at [69] or elsewhere in their reasons, to the concept of causation in s 270 of the Code or to the decisions of this court which have explained, in the context of unlawful killing, how the concepts of factual causation and legal causation embodied in s 270 apply. See, for example, the decisions of this court in TB v The State of Western Australia;[21] Birdsall v The State of Western Australia;[22] Clarke v The State of Western Australia.[23]

    [21] TB v The State of Western Australia [2015] WASCA 212; (2015) 49 WAR 297 [114] ‑ [144] (Buss JA; Mazza JA & Chaney J agreeing).

    [22] Birdsall v The State of Western Australia [2019] WASCA 79; (2019) 54 WAR 418 [127] ‑ [135] (Buss P & Mazza JA).

    [23] Clarke v The State of Western Australia [2022] WASCA 6 [222] ‑ [231] (Buss P; Mazza JA relevantly agreeing).

12. Their Honours said that the implication of a common law requirement of 'acting in concert' in s 7(a) 'would so overwhelm the meaning of s 7(a) that it would be possible for a person to be criminally responsible under s 7(a) even if the person had not done any actual acts at all' [73].

13. Gordon, Edelman and Steward JJ added that the recognition of an implication based on a common law requirement of 'acting in concert' in s 7(a) 'is also precluded by the history and context of s 7(a), which includes the express requirement of a common purpose in s 8' [74].

14. Their Honours decided that the trial judge erred in his direction to the jury that the appellant could be convicted under the first pathway to guilt, namely s 7(a), based upon a combination of the acts of the appellant and Mr Webb acting 'in concert' [81]. The direction was an error of law which occasioned a miscarriage of justice [81]. Their Honours said that the concept of 'acting in concert' is not contained in s 7(a) and it should not form part of any direction concerning s 7(a) [81].

15. Gordon, Edelman and Steward JJ commented that s 8(1) operates in circumstances where 'A B and C form a plan to burgle a house, in pursuance of which A breaks into the house but does not enter, B takes no part in the breaking but enters and steals, and C keeps watch in the street outside' [74].

16. Later in their reasons, their Honours observed [79]:

    [A] remarkable feature of the State's case against [the appellant] and Mr Webb was that the State made no attempt to allege that, at any point during the assaults on Mr Koroma, [the appellant] and Mr Webb tacitly formed an unlawful common purpose of doing grievous bodily harm to Mr Koroma, which extended beyond a reasonable response to the circumstances that they believed to exist (section 248(4)(b) of the Criminal Code).

17. By that observation, Gordon, Edelman and Steward JJ stated, in effect, that:

    (a)the prosecutor should have run the State's case at trial on the basis of s 8(1) of the Code; and

    (b)it was open to the State to allege that, during the assaults on Mr Koroma, the appellant and Mr Webb 'tacitly formed an unlawful common purpose of doing grievous bodily harm to Mr Koroma' and that, in the circumstances, the defence of self‑defence under s 248(4) was negated.

18. We note for completeness that Kiefel CJ and Gageler J, who dissented in O'Dea, would have dismissed the appeal for these reasons [24]:

    Applying the reasoning in Pickett to this case, the 'offence' for the purposes of s 7(a) was each act of striking a blow to Mr Koroma by the appellant and by Mr Webb. The acts of each are attributed to the other and they both become principal offenders and liable to criminal punishment under s 294(1), subject to any defences which may arise from their personal circumstances. The fact that they may each have a defence does not prevent s 7(a) from applying. It follows that the lawfulness or otherwise of Mr Webb's actions for the purposes of Ch XXVI is not material to the application of s 7.

1. Some of the implications of the majority's decision in O'Dea in relation to s 8(1) were considered by this court in Puntigam v The State of Western Australia.[24]

   [24] Puntigam v The State of Western Australia [2023] WASCA 46.

Grounds 2 and 3 - the submissions

1. Counsel for Ms Taylor submitted that the written instructions and oral directions given by the trial judge as set out at [54] and [56] above were, in substance, the same as the erroneous directions given by the trial judge in O'Dea.  On the majority's reasons in O'Dea, it was not open to the jury to find Mr Starr and Mr Gittos criminally responsible under s 7(a) of the Code on the basis that they acted in concert and, while doing so, caused Mr Taylor's death by the combination of the blows they each inflicted. Ms Taylor's criminal responsibility depended upon the State proving that one or both of the co‑accused were s 7(a) offenders. It is reasonably possible that the jury found that both of the co‑accused were s 7(a) offenders only on the basis of the erroneous instructions and directions and, consequently, Ms Taylor has suffered a miscarriage of justice. Her conviction on count 1 must be set aside and a retrial ordered.

2. Counsel for the State accepted in oral submissions that, having regard to the majority's reasons in O'Dea, the fourth scenario set out at [50] above was no longer a permissible pathway to criminal responsibility under s 7(a).[25]

   [25] Appeal ts 54.

3. Counsel for the State did not, however, concede that his Honour had made a material error as alleged by Ms Taylor. Counsel submitted that s 7(a) would have been engaged by scenarios 1, 2 and 3 set out at [50] above. Any misdirection did not affect the State's case against Ms Taylor 'because the jury in her case had to be satisfied that there was a principal offender'[26] and there were pathways that permitted the jury properly to find that either or both of Mr Starr and Mr Gittos were s 7(a) offenders.

   [26] Appeal ts 54 - 55.

Grounds 2 and 3 - disposition

1. In the present case, the trial judge instructed the jury in the question trail document and orally directed the jury in his summing up that Mr Starr and Mr Gittos could be criminally responsible under s 7(a) of the Code on the basis that they acted in concert, each delivering blows while acting together, the combined effect of which was to cause Mr Taylor's death. This process of reasoning is, in substance, the same process of reasoning which the majority in O'Dea held, on the proper construction of s 7(a), was erroneous and should not have been left to the jury.

2. Although scenarios 1, 2 and 3 set out at [50] above were properly open under s 7(a), it is impossible to know which of the four scenarios set out at [50] above the jury accepted. There is a perceptible risk that the jury found Mr Starr and Mr Gittos guilty solely on the basis of the fourth scenario. If the jury acted solely on the basis of the fourth scenario to sustain a conclusion that Ms Taylor was criminally responsible under s 7(b), s 7(c) or s 7(d) of the Code, Ms Taylor's conviction was not open because s 7(a) had not been properly engaged.

3. In the circumstances, his Honour erred in law in leaving the fourth scenario to the jury as a pathway to criminal responsibility under s 7(a). There is a perceptible risk that this was the only basis upon which the jury found Mr Starr and Mr Gittos criminally responsible under s 7(a) for the murder of Mr Taylor. Ms Taylor's conviction is unsafe. His Honour's erroneous instructions and directions constituted a wrong decision by his Honour on a question of law within s 30(3)(b) of the Criminal Appeals Act 2004 (WA). We are not persuaded that the error was immaterial and could not have deprived the appellant of a chance of acquittal that was fairly open to her. See Baini v The Queen;[27] Filippou v The Queen.[28]

   [27] Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469 [49] (Gageler J).

   [28] Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [15], [48] (French CJ, Bell, Keane & Nettle JJ).

4. The substance of grounds 2 and 3 has been made out.

Ground 1 - the relevant directions

1. As we have mentioned, the State's case against Ms Taylor on the charge of murder alleged, in the alternative, that she was criminally responsible under s 7(d) of the Code because she counselled or procured one or both of Mr Starr and Mr Gittos to intentionally kill Mr Taylor.

2. In her opening address, the prosecutor did not, separately from the evidence said to support the case that Ms Taylor was criminally responsible under s 7(b) or s 7(c) of the Code, identify the evidence said to support the case that Ms Taylor was criminally responsible under s 7(d).

3. In her closing address, the prosecutor referred to the evidence said to support the case against Ms Taylor on counselling and procuring as follows:[29]

   What did she do that would make her criminally responsible for the killing?  Well, she counselled or procured John Starr and Raymond [Gittos] to kill Noel [Taylor].  Well, whatever the exact nature of the discussions about her being raped, and who brought it up, I suggest you should have no difficulty [finding] those discussions took place.

   And by her own admissions, she confirmed to both of them that she'd been raped.  If you accept what John Starr said, she said she'd been raped three times.  She admitted she did nothing to set the record straight about what really had gone on, and when it had gone on.  And she admitted there was a plan for John Starr and Raymond Gittos to confront Noel [Taylor].

   Now, I won't repeat what I've said about what she said the plan was but I just suggest that's just simply not credible.  I would suggest you can be satisfied her conduct amounts to counselling or procuring.  And you might be satisfied that it amounts to aiding by encouragement.

   [29] ts 1570 - 1571.

4. After the closing addresses were completed, the trial judge discussed with the prosecutor and defence counsel, in the absence of the jury, the question trail document.

5. Defence counsel for Ms Taylor noted that his Honour proposed to include in the question trail document an explanation of the expression 'counselling or procuring', namely:[30]

   That is, did she encourage, induce, or influence them or either of them to kill Noel Taylor, intending that what she said would have that effect?

   [30] ts 1737 - 1738.

6. Defence counsel for Ms Taylor submitted that the inclusion of the words 'encouraging, inducement or influence' was apt to be confusing and that, having regard to the way in which the State ran its case, the question that should be posed to the jury was, '[d]id [Ms Taylor] enter into a plan with one or both of the men to kill Noel Taylor'.[31]  Defence counsel expressed particular concern about the inclusion of the word 'influence' in the question trail document because it was different from the State's case, which, as he put it, 'is the entering into the plan'.  Defence counsel submitted that the word 'influence' could mislead the jury into finding erroneously that Ms Taylor was guilty on the basis of the case run by Mr Starr, namely that Ms Taylor had planted the seed for Mr Gittos to murder Mr Taylor.[32]

   [31] ts 1738.

   [32] ts 1738.

7. The trial judge said that he would give some thought to the submissions made by defence counsel for Ms Taylor.[33]  The issue was not discussed further between his Honour and defence counsel.

   [33] ts 1738.

8. The final version of the question trail document, as settled by his Honour, instructed the jury in relation to Ms Taylor's criminal responsibility under s 7(d) as follows:

   Did Lynette Taylor counsel or procure John Starr and Raymond Gittos (or either of them) to kill Noel Taylor (that is, did she encourage, induce or influence them, or either of them, to kill Noel Taylor, intending that what she said would have that effect)?

   If 'yes' guilty of murder.

   If 'no' go to question 2.

9. The trial judge's oral directions to the jury in his summing up in relation to Ms Taylor's criminal responsibility under s 7(d) were these:[34]

   A person can also be guilty of murder if he or she counsels or procures another person to commit that offence.  To counsel means to encourage, urge, advise or solicit.  To procure means to enable or facilitate the commission of the offence by another.

   In order to be guilty of murder as a counsellor or procurer, the following elements must be proved.  (1) That a person, the other person, the principal has committed a murder.  (2) That the accused has done or said something to the principal that has acted to encourage, induce or urge that person to commit the murder.  And (3) that the accused intended that what he or she did or said would have the [e]ffect of causing the person to commit the murder.

   In the present case the prosecution case is that Lynette Taylor is guilty either because she counselled or procured John Starr and Raymond Gittos, or one of them to kill Noel Taylor, or because she aided or enabled the commission of the offence in the ways I have referred to.

   [34] ts 1753.

10. His Honour added:[35]

    The prosecution case against Lynette Taylor depends on you being satisfied beyond reasonable doubt that prior to any killing she knew that Noel Taylor was to be killed either because she counselled or procured it, or because she did things intended to assist in that killing.

    [35] ts 1754.

11. After directing the jury as to the manner in which they should treat the question trail document (see [57] above), the trial judge told the jury, relevantly, that Ms Taylor's criminal responsibility was to be determined differently from her co‑accused because 'it's alleged that she was either an aider or enabler, or a counsellor or procurer'.[36] 

    [36] ts 1758.

12. His Honour then read to the jury the first question posed in the question trail document in relation to Ms Taylor which we have set out at [92] above.[37]

    [37] ts 1758 - 1759.

Ground 1 - Ms Taylor's submissions

1. Counsel for Ms Taylor's submissions in support of ground 1 are in essence reflected in particulars (a), (b) and (c) of ground 1.

2. Counsel submitted that the trial judge erred in his directions to the jury by defining the expression 'counsel or procure' as a composite expression, when the words 'counsel' and 'procure' are used disjunctively in s 7(d) of the Code. Each of 'counsel' and 'procure' has a separate meaning. The meanings are not necessarily coextensive. Instead of the jury being directed to that effect, his Honour's directions impermissibly conflated or assimilated the words.

3. Counsel also submitted that his Honour erred in the question trail document and in his oral directions by instructing the jury that to 'encourage' either or both co‑accused to murder Mr Taylor would constitute counselling or procuring under s 7(d). Further, his Honour erred in the question trail document by instructing the jury that to 'influence' either or both of the co‑accused would be sufficient to constitute counselling or procuring. Moreover, the jury would have been confused by the inconsistencies between the question trail document and the oral directions and unable properly to identify the meaning of counselling or procuring. For example, the question trail document used the word 'influence', but the oral directions did not; and the oral directions used the words 'urge' and 'advise', but the question trail document did not.

4. Finally, counsel submitted that his Honour erred by failing to direct the jury that before Ms Taylor could be held to be criminally responsible under s 7(d), the State had to prove a causal link between Ms Taylor's counselling or procuring and the murder of Mr Taylor.

Ground 1 - the State's submissions

1. Counsel for the State submitted that, following the trial judge's summing up, defence counsel for Ms Taylor did not seek any redirection or additional direction in relation to his Honour's directions about criminal responsibility.

2. Counsel submitted that none of the synonyms for 'counsel' or 'procure' used by his Honour was inapt and that, when the question trail document and the oral directions were considered as a whole, there was no reasonable possibility that the jury would have been misled as to the correct meaning of 'counselling' or 'procuring'.  In particular, there was no risk that the jury would have understood the words 'encourage' and 'influence' as requiring any lesser degree of persuasion than other synonyms commonly used to explain the meaning of 'counselling' or 'procuring'; for example, 'urge', 'advise' or 'solicit'.

3. Counsel submitted that the trial judge did not conflate or assimilate the concepts of counselling or procuring and that his Honour did not fail to direct on the requirement for there to be a causal link between Ms Taylor's acts or statements said to constitute counselling or procuring and the killing of Mr Taylor.

Ground 1 - the meaning of 'counsels or procures' in s 7(d) of the Code

1. Section 7(d) of the Code was examined by this court in Dimer v The State of Western Australia[38] and MKP Management Pty Ltd v Shire of Kalamunda.[39]

   [38] Dimer v The State of Western Australia [2020] WASCA 111; (2020) 57 WAR 167 [71] ‑ [84] (Buss P, Mazza & Vaughan JJA).

   [39] MKP Management Pty Ltd v Shire of Kalamunda [2020] WASCA 130; (2020) 56 WAR 56 [87] ‑ [96] (Buss P, Mazza & Vaughan JJA).

2. It is convenient to reproduce some relevant parts of the reasons for judgment in MKP Management.

3. Section 7(d) provides, in effect, that '[w]hen an offence is committed', a person is 'deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it' if the person 'counsels or procures another person to commit the offence'.

4. Section 7(d) is predicated upon and operates '[w]hen an offence is committed'. An offence is committed, for the purposes of s 7(d), when the relevant acts or omissions by 'the counsellor or procurer' and 'the principal' (accompanied by any prescribed circumstances or causing any prescribed result or engaged in with any prescribed state of mind) occur, and not when 'the principal' is convicted. Also, the deeming provisions in s 7(d) are engaged when the relevant acts or omissions by 'the counsellor or procurer' and 'the principal' (accompanied by any prescribed circumstances or causing any prescribed result or engaged in with any prescribed state of mind) occur. That is, an alleged 'counsellor or procurer' is 'deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it' when those relevant acts or omissions (accompanied by any prescribed circumstances or causing any prescribed result or engaged in with any prescribed state of mind) occur, and not when 'the principal' is convicted. See s 7 read with the definition of 'offence' in s 2 of the Code. See also Birdsall [158].

5. The effect of s 7(d) is to deem 'the counsellor or procurer', as the case may be, to have done the relevant acts or made the relevant omissions which 'the principal' has done or made, and not to deem 'the counsellor or procurer', as the case may be, to be liable to the same extent as 'the principal'. See R vBarlow.[40]

   [40] R vBarlow [1997] HCA 19; (1997) 188 CLR 1, 10 (Brennan CJ, Dawson & Toohey JJ).

6. In MKP Management [91] ‑ [93], the court made these observations about the term 'counsel' in s 7(d) and s 9:

   The term 'counsel' in s 7(d) and s 9 (and cognate forms of that term in those provisions) connotes 'to urge' or 'to advise' another person to commit an offence. See Stuart v The Queen ([1974] HCA 54; (1974) 134 CLR 426, 445 (Gibbs J; Mason J agreeing)); R v Oberbillig ([1989] 1 Qd R 342, 345 (Moynihan J; Kelly SPJ & Ryan J agreeing)); R v Georgiou ([2002] QCA 206; (2002) 131 A Crim R 150 [78] (McPherson & Williams JJA & Atkinson J)); R v Hawke ([2016] QCA 144; (2016) 259 A Crim R 114 [36] ‑ [39] (Fraser JA; Philippides JA & Jackson J agreeing)).

   The term 'counsel' in s 7(d) and s 9 (and cognate forms of that word in those provisions) may also, if appropriate in the circumstances, connote 'to solicit'. See R v Calhaem ([1985] QB 808, 813 (Parker LJ delivering the judgment of the Court of Appeal of England & Wales)); Oberbillig (345); Georgiou [78].

   However, a person does not 'counsel' another person to commit an offence, within s 7(d) or s 9, if he or she merely 'instigates' the commission of an offence, in the sense of suggesting it, without urging, advising or soliciting the commission of the offence. See Hutton v The Queen ((1991) 56 A Crim R 211, 214 ‑ 215 (Ryan J)). Hutton was overruled in R v Kirkby ([1998] QCA 445; [2000] 2 Qd R 57), but not on this point.

7. In MKP Management [94] ‑ [95], the court made these observations about the term 'procure' in s 7(d):

   The term 'procure' in s 7(d) (and cognate forms of that term in that provision) connotes 'to produce by endeavour'. A person procures something 'by setting out to see that it happens and taking the appropriate steps to produce that happening'. A person cannot procure another person to commit an offence unless 'there is a causal link between what [the person does] and the commission [by the other person] of the offence'. See Attorney-General's Reference (No 1 of 1975) ([1975] QB 773, 779 ‑ 780 (Lord Widgery CJ delivering the judgment of the Court of Appeal of England and Wales)). See also R v Broadfoot ((1976) 64 Cr App R 71, 74 (Cusack J; Shaw LJ & Slynn J agreeing)); R v Castiglione ([1963] NSWR 1; (1962) 63 SR (NSW) 393, 399 (Sugerman J)); R v Menniti ([1985] 1 Qd R 520, 532 (Derrington J)); R v F; Ex Parte Attorney-General (Qld) ([2003] QCA 70; [2004] 1 Qd R 162 [33] ‑ [36] (Williams JA)).

   In R v Adams; Ex Parte Attorney-General (Qld) ([1998] QCA 64), Fitzgerald P stated that, in the context of the Queensland equivalent of s 7(d) of the Code, 'procure' means more than 'mere encouragement' to commit an offence. Procurement requires successful persuasion to do something. A person will not procure another person to commit an offence merely by attempting to induce. The person must have induced the other person actually to have committed the offence. See also Hawke [58] ‑ [59] (Philippides JA).

8. Although s 7(d) does not expressly state a mental element for counselling or procuring, it has been held that it is implicit in the provision that a person will not be criminally responsible under s 7(d) unless the person knew all of the essential facts that constitute the offence committed by 'the principal' and the person intentionally counselled or procured the commission by 'the principal' of that offence. See R v Beck;[41] R v Jervis;[42] Ward v The Queen;[43] R v Hawke.[44]

   [41] R v Beck [1990] 1 Qd R 30, 38 (Macrossan CJ; McPherson J agreeing).

   [42] R v Jervis [1993] 1 Qd R 643, 648 (McPherson ACJ).

   [43] Ward v The Queen (1997) 19 WAR 68, 72 ‑ 75 (Steytler J; Kennedy & Franklyn JJ agreeing).

   [44] R v Hawke [2016] QCA 144; (2016) 259 A Crim R 114 [39] (Fraser JA), [61] (Philippides JA)

Ground 1 - disposition

1. The trial judge's directions to the jury that are relevant for the purposes of ground 1 must be considered by taking the directions (and the summing up) as a whole.  They must be considered from the perspective of a jury listening to those directions (and the summing up) as a whole and how the jury might understand them, and not upon a subtle examination of the transcript or by giving undue prominence to any individual parts.  See R v Dookheea.[45]

   [45] R v Dookheea [2017] HCA 36; (2017) 262 CLR 402 [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle & Edelman JJ).

2. It is well established by the case law that:

   (a)'Counsels', within s 7(d), connotes to urge or to advise the principal offender to commit the offence or (if appropriate in the circumstances) to solicit the principal offender to commit the offence. 'Counsels', within s 7(d), means more than merely instigating the principal offender to commit the offence, in the sense of suggesting it, without urging, advising or soliciting the principal offender to commit the offence.

   (b)'Procures', within s 7(d), connotes successfully persuading the principal offender to commit the offence and thereby bringing about the commission of the offence. 'Procures', within s 7(d), means more than merely encouraging the principal offender to commit the offence.

   See MKP Management [94] ‑ [95]; Adams (7); Hawke [58] ‑ [59].

1. A trial judge is not required to use a particular linguistic formula in directing a jury on the meaning of 'counsels' and 'procures' (or cognate forms of each of those words) for the purposes of s 7(d).

2. The fundamental point in relation to 'counselling' is that where the State alleges that an accused 'counselled' the alleged principal offender to commit the alleged offence, the trial judge must convey to the jury, in substance, that the State must prove beyond reasonable doubt that:

   (a)the alleged principal offender committed the alleged offence;

   (b)the accused counselled, in the sense of urging or advising, the alleged principal offender to commit the alleged offence;

   (c)the accused counselled the alleged principal offender with the intention that the alleged principal offender should act on the counsel and commit the alleged offence; and

   (d)the alleged principal offender committed the alleged offence when carrying out the accused's counsel.

3. Any 'causal link' required between Ms Taylor's alleged counselling and Mr Taylor's murder was confined to the principal offender or offenders within s 7(a) committing the murder when carrying out Ms Taylor's counsel.

4. The fundamental point in relation to 'procuring' is that where the State alleges that an accused 'procured' the alleged principal offender to commit the alleged offence, the trial judge must convey to the jury, in substance, that the State must prove beyond reasonable doubt that:

   (a)the alleged principal offender committed the alleged offence;

   (b)the accused procured the alleged principal offender to commit the alleged offence by successfully persuading the alleged principal offender to commit the alleged offence and the accused thereby brought about the commission of the offence; and

   (c)the accused intended that the alleged principal offender should act on the procurement and commit the alleged offence.

5. Any 'causal link' required between Ms Taylor's alleged procuring and Mr Taylor's murder was confined to Ms Taylor successfully persuading the principal offender or offenders within s 7(a) to commit the murder and Ms Taylor thereby bringing about the commission of the murder.

6. His Honour instructed the jury in the question trail document that the relevant question for the jury was 'did [Ms Taylor] encourage, induce or influence [Mr Starr and Mr Gittos or either of them] to kill Noel Taylor, intending that what she said would have that effect'. See [92] above. His Honour orally directed the jury in his summing up that in order for Ms Taylor to be criminally responsible as a counsellor or procurer, she must have done or said something to the principal offender or offenders 'that has acted to encourage, induce or urge that person to commit the murder'.[46] The instructions and directions to which we have referred were sufficient, in the circumstances, to inform the jury, in substance, that the acts or statements of Ms Taylor had to be 'causally linked' to the commission of the murder in the sense and to the extent we have explained at [116] and [118] above. The instructions and directions were not inadequate or erroneous. It is of some significance that it was not suggested at the trial that in the event the jury was satisfied beyond reasonable doubt that Ms Taylor counselled or procured either or both of her co‑accused to murder Mr Taylor, Ms Taylor's conduct was not causative of the commission of the offence. The existence of any required 'causal link' was not a live issue at the trial. It is also of some significance that Ms Taylor's experienced defence counsel did not complain about the trial judge's alleged failure to direct (or adequately direct) the jury on that issue.

   [46] ts 1753.

7. However, there is, in our opinion, merit in counsel for Ms Taylor's submission about the trial judge's use of the word 'encourage', in both the question trail document and his oral directions, and his Honour's additional use of the word 'influence' in the question trail document.

8. The question trail document specified 'encourage', 'induce' or 'influence' disjunctively.  The question posed was whether Ms Taylor counselled or procured Mr Starr and Mr Gittos or either of them to kill Mr Taylor '(that is, did she encourage, induce or influence them, or either of them, to kill Noel Taylor, intending that what she said would have that effect)?'.

9. Similarly, in his oral directions, his Honour said in effect that in order for Ms Taylor to be guilty of murder as a counsellor or procurer it was necessary for the State to prove beyond reasonable doubt, amongst other things, that Ms Taylor 'has done or said something to the principal that has acted to encourage, induce or urge that person to commit the murder'.

10. In our opinion, there was a perceptible risk, having regard to the question trail document and the trial judge's oral directions, that the jury may have found Ms Taylor criminally responsible, as a party to the offence of murder under s 7(d), on the basis of conduct that merely involved Ms Taylor 'encouraging' Mr Starr or Mr Gittos or both of them to commit the offence, without being satisfied beyond reasonable doubt that Ms Taylor 'procured' Mr Starr or Mr Gittos or both of them to commit the murder by successfully persuading one or both of them to commit the murder and thereby bringing about the commission of the offence.

11. Although 'encouragement' may, depending on the context and what the accused actually said and did, be sufficient to constitute 'counselling' under s 7(d), 'encouragement' is not sufficient to constitute 'procuring' under s 7(d).

12. As to his Honour's reference to 'influence' in the question trail document, it is apparent that 'influence' has a number of broad and variable meanings.  The precise meaning in a particular case depends upon the context.  The word 'influence' and the word 'encourage' are semantically related.  'Influence', in its relevant ordinary and natural meaning, connotes producing an effect upon another person to act in a particular manner.  'Influence', in its relevant ordinary and natural meaning, is similar to 'procure'.[47]  However, 'influence' is weaker than 'procure'.

    [47] See Macquarie Dictionary (8^th ed, 2020) and the definitions of 'encourage' (508), 'influence' (792) and 'procure' (1217).  See also The Shorter Oxford English Dictionary (6^th ed, 2007) and the definitions of 'encourage' (827), 'influence' (1379) and 'procure' (2357 ‑ 2358).

13. Although 'influence' may, depending on the context and what the accused actually said and did, be sufficient to constitute 'counselling' under s 7(d), 'influence' is not sufficient to constitute 'procuring' under s 7(d).

14. The question trail document was given to the jury to assist their deliberations.  Although the trial judge instructed the jury that the question trail document was a supplement or adjunct to his oral directions and was to be read and used in the context of those directions, it does not follow that the jury would not have had regard to the content of the question trail document.  His Honour read aloud to the jury, during his summing up, the salient part of the question trail document.  The question trail document was retained by the jury for reference in the course of their deliberations.  It cannot be assumed that the jury would not have had regard to the question trail document in the course of their deliberations and would not have had regard to the use of the words 'encourage' and 'influence' in the document as explanations of the meaning of 'counsel' or 'procure'.

15. The phrase 'counsels or procures' in s 7(d) is disjunctive. 'Counsel' and 'procure' have different meanings within s 7(d). His Honour erroneously conflated 'counsel' and 'procure' in the question trail document by attributing the same meaning to them. In particular, the question trail document stated, in effect, that Ms Taylor would have counselled Mr Starr and Mr Gittos (or either of them) and she would have procured Mr Starr and Mr Gittos (or either of them) to kill Mr Taylor if she had encouraged, induced or influenced them, or either of them, to kill Mr Taylor, intending that what she said would have that effect. His Honour should have dealt separately with 'counsel' and 'procure' and should have explained separately, by reference to each concept, what the State was bound to prove beyond reasonable doubt for Ms Taylor to be criminally responsible for the offence of murder under s 7(d) by virtue of that concept.

16. Ground 1 has been made out.

The proviso

1. In oral submissions at the hearing, counsel for the State raised the possibility that the State may seek to invoke the application of the proviso in s 30(4) of the Criminal Appeals Act in the event that the grounds of appeal (or any of them) were made out.  At the conclusion of the hearing, orders were made enabling the State to file written submissions on the point in the event that it decided to invoke theproviso.  By letter dated 3 February 2023, the State said that in the event that this court considered that one or more of the errors alleged in the grounds of appeal were established, the State conceded that the nature of the error or errors militated against the proper application of the proviso and the State would not seek to invoke it.  The State's concession was properly made.

The result of the conviction appeal

1. Leave to appeal against conviction should be granted, the appeal allowed and the judgment of conviction on count 1 set aside.  A new trial of Ms Taylor on that count must be had.

1. Plainly, if the State alleges at the new trial that Ms Taylor is guilty of Mr Taylor's murder as a party to the offence under s 7(d) of the Code (or under s 7(b) or s 7(c) of the Code), it will be necessary for the State to prove beyond reasonable doubt that one or both of Mr Starr and Mr Gittos was criminally responsible for Mr Taylor's murder under s 7(a) of the Code in accordance with the reasoning of the majority in O'Dea in relation to s 7(a).

The appeal against sentence

1. Given that the appeal against conviction has been allowed and a new trial ordered, it is unnecessary to consider and decide the appeal against sentence.  That appeal should be dismissed.

Conclusion

1. For these reasons, we joined in making the orders referred to at [10] ‑ [11] above.

MITCHELL JA:

1. On 5 September 2023, the court made the orders referred to at [10] - [11] above. These are my reasons for joining in the making of those orders.

Introduction

1. The deceased, Noel Taylor, arrived at his Merriwa home from work at about 4.40 pm on 27 February 2020.  The only other persons in the home at that time were the appellant (Mr Taylor's wife), John Starr (the appellant's brother), Raymond Gittos (the appellant's son from a previous marriage) and Valray Starr (the elderly mother of the appellant and Mr Starr).  Mr Taylor was seriously assaulted at the house and placed inside his own car.  Mr Starr and Mr Gittos drove Mr Taylor's vehicle away from the house just after 5.07 pm on 27 February 2020.  They were followed by a vehicle driven by the appellant in which her mother was a passenger.  Mr Taylor's vehicle was driven to a bush location and set alight using fuel purchased by the appellant earlier in the afternoon, prior to Mr Taylor arriving home.  Mr Taylor's remains were later found by police in the burnt‑out vehicle.  The remains were so damaged by fire that forensic examination did not enable any conclusion to be reached as to the cause of his death.[48]

[48] Trial ts 116, 120, 1833.

1. The appellant, Mr Starr and Mr Gittos were charged with murdering Mr Taylor.  In her opening address, the prosecutor accepted that exactly what happened to Mr Taylor after he arrived home was not known.[49]  The State did not suggest that the appellant assaulted Mr Taylor.  The prosecution case was that Mr Taylor was killed by either or both Mr Starr and/or Mr Gittos in the execution of a plan they formulated with the appellant to kill Mr Taylor.  The State's case was that each of Mr Starr and Mr Gittos was a party to the offence either as a person who unlawfully killed Mr Taylor or as a person who aided another to do so.  The appellant was alleged to be a party to the offence either by aiding Mr Starr and/or Mr Gittos to unlawfully kill Mr Taylor, or by counselling or procuring Mr Starr and/or Mr Gittos to do so.[50]

   [49] Trial ts 119.

   [50] Trial ts 1540 ‑ 1541.

2. Valray Starr died prior to trial.  A statement which Ms Starr had given to police was read into evidence but did not describe the death of Mr Taylor.[51]

   [51] Trial ts 323 - 324.

3. The only direct accounts, admissible against the appellant, as to how Mr Taylor died were contained in the evidence given by the appellant and Mr Starr at trial. 

4. On Mr Starr's account, Mr Taylor died after being repeatedly kicked in the head and struck on the head with a baseball bat by Mr Gittos.[52] 

   [52] Trial ts 868 - 873.

5. The appellant's account involved Mr Gittos pulling, and Mr Starr pushing, Mr Taylor out onto the back patio of the house.  Mr Starr grabbed hold of Mr Taylor and 'flung' him onto the back pavers.  Mr Starr then 'pounded' a silver aluminium bat into the left side of Mr Taylor's head numerous times.  The force used was severe.  Mr Starr then gave Mr Gittos the bat and told him to 'have a go'.  Mr Gittos hit the left side of Mr Taylor's head twice with the bat, using much less force than Mr Starr.  Mr Starr felt for a pulse and indicated that Mr Taylor was still alive.  Mr Starr took the bat off Mr Gittos and took one 'almighty swing' with the bat, which cracked Mr Taylor across the back of his neck.  Mr Starr then said that Mr Taylor, who was not moving, was dead.[53]

   [53] Trial ts 1248 - 1252.

6. On both the appellant's and Mr Starr's accounts, the appellant was sitting in a chair on the patio when Mr Taylor was killed and did not directly participate in the assault.  Both the appellant and Mr Starr denied having any prior knowledge that Mr Taylor was going to be assaulted and killed.

7. The jury found all three accused guilty of murdering Mr Taylor.  The jury's guilty verdicts indicate that they must have rejected the evidence of both the appellant and Mr Starr, at least in part.  The circumstantial evidence led by the prosecution that was admissible against the appellant did not provide any basis for determining whether Mr Taylor's death was caused by the act or acts of Mr Starr, the acts or acts of Mr Gittos or the combined acts of both men. 

8. Criminal liability of the three accused could only arise under s 7 and/or s 8 of the Criminal Code (WA) (Code). Section 7 provides for the persons who are deemed to have taken part in committing an offence. Section 8 provides for the circumstances in which two or more persons who form a common intention to prosecute an unlawful purpose in conjunction with one another are deemed to have committed an offence done in the prosecution of that purpose.

9. The reference to an 'offence' in s 7 and s 8 is to the element of conduct (an act or omission) which, if accompanied by prescribed circumstances, or if causing a prescribed result or if engaged in with a prescribed state of mind, renders a person engaging in the conduct liable to punishment.[54] The effect of s 7 and s 8 is to attribute that conduct, but not the particular personal circumstances or criminal responsibility of the person who actually engaged in the conduct, to an accused.[55]

   [54] R v Barlow (1997) 188 CLR 1, 9; R v Keenan [2009] HCA 1; (2009) 236 CLR 397 [131]; Pickett v The State of Western Australia [2020] HCA 20; (2020) 270 CLR 323 [36], [47]; O'Dea v The State of Western Australia [2022] HCA 24; (2022) 273 CLR 315 [66].

   [55] Pickett [2], [41], [47], [67].

10. The present appeal raises the question of how a jury should be directed where the evidence can establish that a person was unlawfully killed but does not, or may not, establish which of two or more co‑accused did the act which constituted the offence. In such a case, the act of unlawful killing can be attributed to an accused under either or both s 7 and s 8 of the Code. In Pickett,[56] the plurality recognised that the fact that it may be practically impossible to identify the participant who struck the killing blow was not a necessary obstacle to the operation of s7 and s 8 of the Code.

    [56] Pickett [39].

Liability under s 7(a) of the Code

1. Under s 7(a) of the Code, '[e]very person who actually does the act or makes the omission which constitutes the offence' is deemed to have taken part in committing the offence and to be guilty of the offence.

2. In identifying the 'act' for the purposes of s 7(a) of the Code in the present case, it is necessary to have regard to the conduct element of the offence of murder. The conduct element of that offence is that 'a person unlawfully kills another person'.[57] 

   [57] Section 279(1) and s 280(1) of the Code.

3. Section 268 of the Code provides that it is unlawful to kill any person unless such killing is authorised or justified or excused by law. In the present case, there is no doubt that Mr Taylor was unlawfully killed.

4. Section 270 of the Code defines the term 'kill' in the following manner:

   Any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person.

5. The operation of s 270 of the Code was summarised in the following terms by Buss JA (Mazza JA & Chaney J agreeing) in TB v The State of Western Australia:[58]

   By s 270 of the Code, properly construed, factual causation in a criminal trial, where the accused is alleged to have killed the deceased, requires the alleged conduct of the accused to have in fact caused the deceased's death. The relevant conduct of the accused does not have to be the sole, direct or immediate cause of the deceased's death. It is sufficient, for the purposes of factual causation, if the relevant conduct was, in fact, a cause. The tribunal of fact is to determine factual causation by applying common sense to the facts as the tribunal finds them.

   However, even if the State's case in relation to factual causation is made out, it remains necessary for the State to establish legal causation.  In other words, factual causation is a necessary, but not of itself a sufficient, condition of criminal liability. 

   By s 270 of the Code, properly construed, legal causation in a criminal trial, where the accused is alleged to have killed the deceased, is concerned with the attribution of criminal responsibility; in particular, with whether the factual connection between the alleged conduct of the accused and the deceased's death is sufficient to justify moral culpability and, therefore, criminal responsibility. It is established that legal causation requires that the alleged conduct of the accused have substantially or significantly contributed to the deceased's death. It is for the tribunal of fact to decide whether or not the contribution of the relevant conduct of the accused was substantial or significant. (citations omitted)

   [58] TB v The State of Western Australia [2015] WASCA 212; (2015) 49 WAR 297 [124] - [126]. This summary was also adopted in Couzens v The State of Western Australia [2019] WASCA 54 [42] - [44] and Skelly v The State of Western Australia [2020] WASCA 3 [35].

6. It appears from the above passage that the act which gives rise to liability for punishment for an offence against s 279 of the Code need not be the sole cause of the death of the deceased person. Rather, a person whose unlawful act is a factual cause of, and makes a substantial or significant contribution to, the deceased's death will be deemed to have unlawfully killed the deceased, even if the person's act is not the sole cause of death.

7. Therefore, a person whose unlawful acts were a cause of, and made a substantial or significant contribution to, a deceased's death will be deemed to have unlawfully killed the deceased under s 7(a) of the Code. Where the unlawful acts of two persons were each a cause of, and each make a substantial or significant contribution to, a deceased's death, each person will be deemed to have unlawfully killed the deceased under s 7(a) of the Code. Where the relevant act is done with the requisite intention, for example to cause the deceased's death, the person doing the act will be deemed to have taken part in committing the offence of murder and to be guilty of that offence under s 7(a) of the Code.

1. The question trail provided to the jury contained the following question in relation to the appellant's liability under s 7(b) and s 7(c) of the Code:[84]

   Did Lynette Taylor do an act for the purpose of enabling or aiding John Starr and Raymond Gittos, or either of them, to kill Noel Taylor (that is, did she do some act or make some omission that assisted the killing and was intended to do so)[?]

   [84] Blue AB 102 ‑ 103.

2. In the present case there was no question that an offence had been committed, namely the unlawful killing of Mr Taylor.  It was common ground that a person or persons other than the appellant had actually done the act or acts that constituted the offence.  The only person or persons who could have actually done the act or acts that constituted the offence were Mr Starr and/or Mr Gittos.  The appellant's acts and omissions alleged to constitute aiding - allowing Mr Starr and Mr Gittos to remain in her house, not warning Mr Taylor and obtaining fuel - clearly aided whoever unlawfully killed Mr Taylor to commit the offence of murder. 

3. The critical contentious question was then whether, at the time of the appellant's acts and omissions, she knew that Mr Starr and/or Mr Gittos were going to kill Mr Taylor and intended her acts and omissions to aid or assist in the commission of that offence. The critical question was not, in the circumstances of this case, whether the appellant knew which of the two men was to deliver the fatal blow or blows or which of the two men actually did the act or acts which constituted the offence. If the appellant permitted Mr Starr and Mr Gittos to remain in the house, failed to warn Mr Taylor and purchased fuel knowing that Mr Taylor was going to be killed by either or both of those men and intending to assist them to do so, then s 7(b) and s 7(c) of the Code would attribute the act of unlawfully killing Mr Taylor to the appellant. That would be so irrespective of the appellant's understanding of which of Mr Starr and/or Mr Gittos was to deliver the fatal blow or blows, or which man actually did so.

4. That is, the attribution to the appellant of the act of unlawfully killing Mr Taylor under s 7(b) and s 7(c) of the Code did not depend on which of Mr Starr and/or Mr Gittos did the act or acts that substantially or significantly contributed to Mr Taylor's death.

5. It follows, in my view, that error in the trial judge's Warren direction as to the liability of Mr Starr and Mr Gittos under s 7(a) of the Code could not have affected the conclusion as to whether the appellant was a party to Mr Taylor's murder under s 7(b) or s 7(c) of the Code. The trial judge's direction as to aiding identified the critical contentious facts that the prosecution needed to prove to establish that the appellant was a party to Mr Taylor's murder under s 7(b) and s 7(c) of the Code. The critical facts concerned the appellant's knowledge that Mr Taylor was going to be killed and her intention to assist Mr Starr and/or Mr Gittos to unlawfully kill Mr Taylor by permitting Mr Starr and Mr Gittos to remain in the house, failing to warn Mr Taylor and purchasing fuel.

6. In my view, for the reasons explained by Gageler J in Hofer v The Queen,[85] an inconsequential error, including an inconsequential error of law, is not a miscarriage of justice within the meaning of s 30(3)(c) of the Criminal Appeals Act.  Put a slightly different way, an irregularity which is not capable of affecting the result of a trial to the prejudice of the accused will not constitute a miscarriage of justice.[86] Equally, the reference to a 'wrong decision on a question of law' in s 30(3)(b) of that Act is to a wrong decision on a material question of law - a decision which in the court's opinion should lead to the conviction being set aside.[87]  While, in light of the decision in O'Dea, the trial judge's Warren direction must now be recognised as being in error, the error had no capacity to affect the result of the jury's consideration of whether the appellant was a party to the murder of Mr Taylor under s 7(b) or s 7(c) of the Code. The error was inconsequential as regards to the appellant's liability under s 7(b) and s 7(c) of the Code and was not a wrong decision on a question of law that was material to the determination of that liability. Alternatively, if s 7(b) and s 7(c) had been the only basis on which the appellant's liability was left to the jury, this court would properly dismiss the appeal on the basis that there was no substantial miscarriage of justice as the error was so plainly innocuous that it could not possibly have affected the outcome of the appellant’s trial.[88]

   [85] Hofer v The Queen [2021] HCA 36; (2021) 274 CLR 351 [114] - [123].

   [86] HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978 [78].

   [87] DKA v The State of Western Australia [2019] WASCA 123 [60], citing Simic v The Queen (1980) 144 CLR 319, 327 - 328. See also my observation in DKA at [209].

   [88] See Awad v The Queen [2022] HCA 36; 2022) 275 CLR 421 [93] - [95].

Liability under s 7(d) of the Code

1. Under s 7(d) of the Code, '[a]ny person who counsels or procures any other person to commit the offence' is deemed to have taken part in committing the offence and to be guilty of the offence.

2. The concepts of 'counselling' and 'procuring' are explained in the reasons of Buss P and Mazza JA at [107] - [111] and [113] - [118] above.

3. For an accused to have procured the commission of an offence by another person, the other person must actually have committed an offence.[89]

   [89] Jackson v Horne (1965) 114 CLR 82, 88, 94 and 95; O'Dea [66].

The direction under s 7(d) of the Code

1. The State's case against the appellant under s 7(d) of the Code was ill‑defined.

2. In opening, the prosecutor indicated that one way the State could prove an accused guilty of murder is by proving that the relevant accused 'counselled or procured one or both of the other accused to kill Noel Taylor' (emphasis added).  The prosecutor said:[90]

   I know that probably sounds very complicated, which is why his Honour will give you detailed directions about the law at the end of the trial.

   [90] Trial ts 133.

3. Shortly thereafter, the prosecutor said:[91]

   In respect of the accused Lynette Taylor, the State says that at the very least from all the evidence you will hear, you should be satisfied that she counselled or procured one or both of John Starr and Raymond Gittos to kill Noel Taylor.  (emphasis added)

   [91] Trial ts 133.

4. The prosecutor did not otherwise elaborate in opening upon the basis on which the State put its case of counselling or procuring the murder of Mr Taylor against the appellant.

5. In closing submissions, the prosecutor said:[92]

   What did she do that would make her criminally responsible for the killing?  Well, she counselled or procured John Starr and [Raymond Gittos] to kill [Noel Taylor].  Well, whatever the exact nature of the discussions about [the appellant] being raped, and who brought it up, I suggest you should have no difficulty those discussions took place.

   And by her own admissions, she confirmed to both of them that she'd been raped.  If you accept what John Starr said, she said she'd been raped three times.  She admitted she did nothing to set the record straight about what really had gone on, and when it had gone on.  And she admitted there was a plan for John Starr and Raymond Gittos to confront Noel.

   Now, I won't repeat what I've said about what she said the plan was but I just suggest that's just simply not credible.  I would suggest you can be satisfied her conduct amounts to counselling or procuring.  

   [92] Trial ts 1570 - 1571.

6. This passage seems to me to be problematic, particularly in the context where the State did not seek to prove that Mr Taylor had not raped the appellant and where, on the appellant's evidence, she disclosed the rape to Mr Gittos after responding to a question by Mr Gittos who (contrary to the appellant's wishes) had previously been informed of the allegations by another person.[93]  If the answer to her son's direct question was truthful, then I have difficulty in seeing the answer as constituting either counselling or procuring her son to commit the offence of murder, even though the appellant must have anticipated an angry and possibly violent response by her son to the information.  The law does not criminalise the truthful disclosure by a victim of a serious sexual offence of the commission of the offence against him or her.

   [93] Trial ts 1242.

7. The trial judge gave the following direction as to the appellant's liability under s 7(d) of the Code:[94]

   [94] Trial ts 1753.

   A person can also be guilty of murder if he or she counsels or procures another person to commit that offence.  To counsel means to encourage, urge, advise or solicit.  To procure means to enable or facilitate the commission of the offence by another.

   In order to be guilty of murder as a counsellor or procurer the following elements must be proved:

   (1) that a person, the other person, the principal has committed a murder;

   (2) that the accused has done or said something to the principal that has acted to encourage, induce or urge that person to commit the murder; and

   (3) that the accused intended that what he or she did or said would have the [effect] of causing the person to commit the murder.

   In the present case the prosecution case is that Lynette Taylor is guilty either because she counselled or procured John Starr and Raymond Gittos, or one of them to kill Noel Taylor …

   (emphasis added) (transcript formatting adjusted for ease of comprehension)

8. The question trail provided to the jury asked the following question in relation to the appellant's liability under s 7(d) of the Code:[95]

   Did Lynette Taylor counsel or procure John Starr and Raymond Gittos (or either of them) to kill Noel Taylor (that is, did she encourage, induce or influence them, or either of them, to kill Noel Taylor, intending that what she said would have that effect)? (emphasis added)

   [95] Blue AB 102.

9. In my view, it is at this point that the trial judge's Warren direction infects the case against the appellant. 

10. Section 7(d) required the jury to be satisfied that the person who the appellant procured was the person who committed the offence: ie, was a person who actually did an act which made a substantial or significant contribution to the deceased's death.

11. The State's case was put and left on the basis that the jury might be satisfied that the conduct of the appellant constituting procuring was directed to either or both Mr Starr and/or Mr Gittos.  If the jury found that the appellant sought only to persuade Mr Gittos to commit the offence, it would be necessary for them to be satisfied that Mr Gittos committed the offence before concluding that the appellant procured its commission.  This contrasts with the State's case on aiding, in which the acts said to have aided the commission of the offence of murder would have assisted whichever of Mr Starr and/or Mr Gittos committed the offence.

12. Following the judge's direction, the jury might have been satisfied, beyond reasonable doubt, that the appellant sought to persuade Mr Gittos to unlawfully kill Mr Taylor. That inference might have been drawn from evidence of the appellant calling Mr Gittos to come to the house, collecting him from the train station and confirming that she had been raped. The jury might also have failed to be satisfied beyond reasonable doubt that the appellant sought to persuade Mr Starr to commit the offence. In that scenario, the appellant may have procured Mr Gittos to unlawfully kill Mr Taylor but could only be said to have done so if Mr Gittos did an act which caused Mr Taylor's death. That is, in this scenario the appellant would only be deemed under s 7(d) to have unlawfully killed Mr Taylor on the basis that she procured Mr Gittos to commit the offence if Mr Gittos actually did the act which constituted the offence within the meaning of s 7(a) of the Code. As a matter of law, this would require the jury to be satisfied that Mr Gittos did an act which was a factual cause of, and made a substantial or significant contribution to, Mr Taylor's death. However, under the trial judge's Warren direction, the jury could have been satisfied that Mr Gittos was liable under s 7(a) without being satisfied that he did any act which made a substantial or significant contribution to the deceased's death.

13. The trial judge's direction left the jury with multiple potentially available pathways to finding the appellant guilty of the offence of murder, depending on the view they took of the evidence.  There is no way of knowing which pathway or pathways the jury relied upon in delivering their verdict that the appellant was guilty of murder.  The error in the trial judge's Warren direction will have been material if there was a realistic possibility that it could lead the jury to incorrectly conclude that a pathway to a guilty verdict against the appellant was available without being satisfied of the facts on which the availability of the pathway depended. 

14. In the present case, the effect of the trial judge's Warren direction was to allow the jury to be satisfied of the appellant's guilt on the basis that she procured Mr Gittos to murder Mr Taylor without being properly satisfied that Mr Gittos actually did any act which constituted that offence.

15. In this manner, there is a realistic possibility that the trial judge's Warren direction affected the jury's assessment of the appellant's liability under s 7(d) of the Code. This material error did constitute a miscarriage of justice in the appellant's trial. The misdirection was also a wrong decision on a material question of law which could have affected the outcome of the appellant's trial, depending on the view the jury took of the evidence following the trial judge's Warren direction.  In my view, grounds 2 and 3 of the appellant's appeal against conviction are established.  This is because the trial judge's Warren direction may have led the jury to find the appellant guilty of murder on the basis that she procured Mr Gittos to unlawfully kill Mr Taylor, without being satisfied that he had actually done any act which constituted that offence. 

16. It is therefore unnecessary to consider ground 1 of the appeal, which makes other challenges to the trial judge's direction as to the appellant's liability under s 7(d) of the Code. I will make some observations in relation to that direction, which may need to be given again at any new trial.

17. I agree with Buss P and Mazza JA that it is at least undesirable to conflate the disjunctive expression 'counsels or procures' in s 7(d) of the Code. Counselling and procuring are separate concepts with distinct meanings which, in the circumstances of the present case, should be separately explained to the jury on retrial.

18. I also agree with Buss P and Mazza JA that the use of the term 'influence' in the question trail at [195] above was at least problematic, as the ordinary meaning of that term may convey something less than counselling or procuring. That is particularly so in the context of the present case where the State relied on the appellant's disclosure of prior sexual assault, which it did not set out to prove was false, as constituting counselling or procuring the commission of the offence. As I have noted above, I have difficulty in seeing a truthful answer to her son's direct question as constituting either counselling or procuring the offence of murder, however it might have influenced Mr Gittos' actions. In my view, the term 'influence' was at least an unhelpful synonym to use in the present case and should not be used on retrial.

Liability under s 8 of the Code

1. Section 8(1) of the Code relevantly provides:

   When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.

2. For s 8 of the Code to apply in relation to an offence charged against an accused, the following matters must be established by the prosecution beyond reasonable doubt:

   1.The accused and at least one other person formed a common intention to prosecute an unlawful purpose in conjunction with one another.

   2.An offence was committed in the prosecution of that unlawful purpose.

   3.The offence was of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose.

3. Hall JA and I recently considered the operation of s 8 of the Code in Puntigam v The State of Western Australia.[96] For reasons explained in that case, s 8 of the Code can be a basis for criminal liability where there is a common intention to prosecute an unlawful purpose and the unlawful purpose has the same factual components as the offence committed.

   [96] Puntigam v The State of Western Australia [2023] WASCA 46 [184] - [235].

4. In the present case, it would have been open to the prosecution to put a s 8 case against all accused on the basis that:

   1.they formed a common intention to prosecute the purpose of unlawfully killing Mr Taylor in conjunction with one another;

   2.the offence of murdering Mr Taylor was committed in the prosecution of that unlawful purpose; and

   3.Mr Taylor's murder was a probable consequence of the prosecution of that unlawful purpose. 

5. Given that the alleged common purpose would have been to unlawfully kill Mr Taylor there would have been no doubt that the offence of murder was a probable consequence of the prosecution of that unlawful purpose. It would have been unnecessary in a s 8 case to prove which of Mr Starr and/or Mr Gittos actually did the act which constituted the unlawful killing, so long as it was established that the offence was committed in the prosecution of the unlawful purpose.[97] The critical contentious issue on a s 8 case would have been whether it could be inferred that the appellant, Mr Starr and Mr Gittos formed a common intention to prosecute the purpose of unlawfully killing Mr Taylor in conjunction with one another.

   [97] See Puntigam [244].

6. The prosecution did not rely on s 8 of the Code at trial. There are two obvious reasons why it may not have done so in a trial conducted prior to the decision in O'Dea. Firstly, the prosecutor would have reasonably understood that s 7(a) would apply to accused persons acting in concert in the manner contemplated by Warren.  Secondly, at the time of trial it was commonly thought in Western Australia that the decision in Keenan held that the function of s 8 is to extend the criminal responsibility of the parties to a common purpose to an offence other than that to which the common purpose was specifically directed. Both views had been expressed in dicta of this court in L v The State of Western Australia.[98]  The prosecutor's forensic decisions at trial could not have been informed by the subsequent decisions of the majorities in O'Dea and Puntigam, which indicate that s 8 of the Code was a proper source of liability arising from the coordinated execution of a plan to kill Mr Taylor of the kind alleged by the prosecution at trial.

   [98] L v The State of Western Australia [32], [40].

7. I have considered whether the 'proviso' in s 30(4) of the Criminal Appeals Act might be applied in the present case on the basis that, prior to the act which caused Mr Taylor's death, the appellant, Mr Starr and Mr Gittos formed a plan to kill Mr Taylor. Such a plan would necessarily have involved the accused forming a common intention to prosecute the purpose of unlawfully killing Mr Taylor in conjunction with one another. If the accused were proved to have formed a common intention to prosecute such an unlawful purpose in conjunction with one another, there could be little room for doubting that s 8 of the Code would deem each accused to have committed the offence of murdering Mr Taylor.

1. The prior formation of a plan to kill Mr Taylor was the basis on which the prosecution case against the appellant proceeded.  However, the case left to the jury by the trial judge's direction depended on proof of the appellant's prior knowledge rather than her joining in a plan (see the passages quoted at [177] and [178] above).  The appellant's trial counsel raised the reference to knowledge rather than a plan with the trial judge.  His Honour indicated that he considered a direction in respect of knowledge rather than the existence of a plan to be appropriate.[99]

   [99] Trial ts 1801.

2. It is well settled that, in a case that does not involve a fundamental defect, the proviso cannot be applied unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict.[100] 

   [100] OKS v The State of Western Australia [2019] HCA 10; (2019) 265 CLR 268 [31].

3. In my view, the present case is one in which the natural limitations of proceeding on the record do not permit this court to be satisfied as to the appellant forming a common intention with Mr Starr and Mr Gittos to prosecute the purpose of unlawfully killing Mr Taylor in conjunction with one another.  This court could only be persuaded that the evidence properly admitted at trial proved that fact beyond reasonable doubt by placing significant weight on the jury's guilty verdict.  This cannot be done where, given the trial judge's directions, the existence of a plan to kill (which would amount to the accused forming a common intention to prosecute the purpose of unlawfully killing Mr Taylor in conjunction with one another) is not necessarily inherent in the jury's guilty verdict.

4. Therefore, in my view the State was correct not to rely on the proviso in this appeal. It is unnecessary to consider whether the fact that the State did not advance a case against the appellant based on s 8 of the Code at trial would otherwise be an impediment to reliance on the proviso.

Orders

1. For the above reasons, I joined in orders allowing the appellant's conviction appeal, quashing her conviction of murder, and ordering a retrial.  I agree with Buss P and Mazza JA that it is unnecessary to say anything about the sentence appeal in these circumstances, and for that reason joined in orders dismissing the sentence appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

ST

Associate to the Honourable Justice Mazza

1 FEBRUARY 2024