Taylor v The State of Western Australia
[2016] WASCA 210
•30 NOVEMBER 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TAYLOR -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 210
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 16 MARCH, 6 APRIL & 27 APRIL 2016
DATE OF FINAL
SUBMISSIONS : 7 JUNE 2016
DELIVERED : 30 NOVEMBER 2016
FILE NO/S: CACR 75 of 2015
BETWEEN: MARK PATRICK TAYLOR
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S :CACR 80 of 2015
BETWEEN :DANIEL WADE JONES
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S :CACR 81 of 2015
BETWEEN :DANIEL WADE JONES
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :JENKINS J
File No :INS 199 of 2014
Catchwords:
Criminal law - Appeals against conviction - Appellants convicted after trial of murder - Section 7 of the Criminal Code (WA) - Whether the trial judge misdirected the jury in relation to enabling or aiding another person to commit an offence - Section 8 of the Code - Whether the trial judge misdirected the jury in relation to the alleged common intention of the appellants - Whether the trial judge otherwise misdirected the jury about the possible criminal liability of the appellants pursuant to s 8 of the Code - Whether the trial judge misdirected the jury in relation to a process of reasoning by which they may determine how the deceased suffered the fatal injuries Whether the trial judge misdirected the jury in relation to the required intention for murder at the time the deceased was first physically assaulted - Whether a miscarriage of justice was occasioned by the manner in which defence counsel for one of the appellants crossexamined a State witness
Criminal law - Appeal against sentence - Each appellant sentenced to life imprisonment with a minimum nonparole period of 21 years - Whether the minimum term for one of the appellants was manifestly excessive
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3), s 30(4)
Criminal Code (WA), s 7, s 8, s 279
Result:
CACR 75 of 2015
Leave to appeal on grounds 2 and 3 refused
Leave to appeal on ground 4 granted
Appeal dismissed
CACR 80 of 2015
Leave to appeal on grounds 2, 3 and 4 refused
Leave to appeal on ground 5 granted
Appeal dismissed
CACR 81 of 2015
Leave to appeal refused
Appeal dismissed
Category: A
Representation:
CACR 75 of 2015
Counsel:
Appellant: Mr S B Watters
Respondent: Mr J A Scholz - 16 March 2016 & 6 April 2016
Solicitors:
Appellant: Michael Caratti Barrister & Solicitor
Respondent: Director of Public Prosecutions (WA)
CACR 80 of 2015
Counsel:
Appellant: Mr S Vandongen SC - 16 March 2016
Mr A J Robson - 6 April 2016 & 27 April 2016
Respondent: Mr J A Scholz - 16 March 2016 & 6 April 2016
Mr L M Fox - 27 April 2016
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)
CACR 81 of 2015
Counsel:
Appellant: In person
Respondent: Mr J A Scholz - 16 March 2016 & 6 April 2016
Mr L M Fox - 27 April 2016
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662
Angliss v The State of Western Australia [2015] WASCA 8
Atherden v The State of Western Australia [2010] WASCA 33
Austic v The State of Western Australia [2010] WASCA 110
Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92
Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338
BG v The State of Western Australia [2005] WASCA 45; (2005) 152 A Crim R 207
Bomford v The State of Western Australia [2014] WASCA 43
Bowman v The State of Western Australia [2008] WASCA 63
Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
Butler v The State of Western Australia [2010] WASCA 104
Cockram v The State of Western Australia [2011] WASCA 179
Corbett v The State of Western Australia [2016] WASCA 97
Crossland v The State of Western Australia [2016] WASCA 93
Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373
Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
Gillard v The Queen [2003] HCA 64; (2003) 219 CLR 1
Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328
Johnston v The State of Western Australia [2012] WASCA 18
Khan v The State of Western Australia [2013] WASCA 193
KLM v The State of Western Australia [2009] WASCA 73; (2009) 194 A Crim R 503
L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Mack v The State of Western Australia [2014] WASCA 207
McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108
McMahon v The State of Western Australia [2010] WASCA 143
Miller v The Queen [2016] HCA 30; (2016) 90 ALJR 918
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
O (a child) v The Queen (Unreported, WASCA, Library No 970219, 9 April 1997)
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
Pedersen v The State of Western Australia [2010] WASCA 175
Petersen v The State of Western Australia [2016] WASCA 66; (2016) 50 WAR 45
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
Prestidge v The State of Western Australia [2014] WASCA 16
R v Barlow [1997] HCA 19; (1997) 188 CLR 1
R v Beck [1990] 1 Qd R 30
R v Birks (1990) 19 NSWLR 677
R v Bosworth [2007] SASC 150; (2007) 97 SASR 502
R v Jeffrey [2003] 2 Qd R 306
R v Keenan [2009] HCA 1; (2009) 236 CLR 397
R v Pascoe (Unreported, QCA, Library 242 of 1997, 19 December 1997)
R v Roberts [2012] QCA 82
R v Solomon [1959] Qd R 123
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
Reeves v The Queen [2013] HCA 57; (2013) 88 ALJR 215
Ritchie v The State of Western Australia [2016] WASCA 134
Rosewood v The State of Western Australia [2014] WASCA 21
Scafetta v The State of Western Australia [2010] WASCA 209
Silva v The State of Western Australia [2013] WASCA 278
Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115
Steve v The Queen [2008] NSWCCA 231; (2008) 189 A Crim R 68
Stinson v The State of Western Australia [2014] WASCA 72
The State of Western Australia v Churchill [2015] WASCA 257
The State of Western Australia v Lee [2013] WASCA 246
The State of Western Australia v O'Kane [2011] WASCA 24
The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285
The State of Western Australia v Smith [2015] WASCA 87
The State of Western Australia v Taylor [2015] WASCSR 71
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91
Zwerus v The State of Western Australia [2015] WASCA 174
Table of Contents
Buss P's reasons........................................................................................................................ 9
Overview of the State's case at trial
Formal admissions made by Mr Taylor and Mr Jones
Overview of Mr Taylor's case at trial
Overview of Mr Jones' case at trial
The organisation of the balance of these reasons
Mr Taylor's appeal against conviction: the grounds of appeal
Mr Taylor's appeal against conviction: ground 1: s 7(b) and s 7(c) of the Code
Mr Taylor's appeal against conviction: ground 1: the trial judge's summing up
Mr Taylor's appeal against conviction: ground 1: the trial judge's 'question trail' document
Mr Taylor's appeal against conviction: ground 1: counsel for Mr Taylor's submissions
Mr Taylor's appeal against conviction: ground 1: its merits
Mr Taylor's appeal against conviction: ground 2: s 8 of the Code
Mr Taylor's appeal against conviction: ground 2: the trial judge's summing up
Mr Taylor's appeal against conviction: ground 2: the trial judge's 'question trail' document
Mr Taylor's appeal against conviction: ground 2: counsel for Mr Taylor's submissions
Mr Taylor's appeal against conviction: ground 2: its merits
Mr Taylor's appeal against conviction: grounds 3 and 4: general
Mr Taylor's appeal against conviction: grounds 3 and 4: the relevant evidence at trial
Mr Taylor's appeal against conviction: grounds 3 and 4: the trial judge's summing up
Mr Taylor's appeal against conviction: grounds 3 and 4: counsel for Mr Taylor's submissions
Mr Taylor's appeal against conviction: grounds 3 and 4: their merits
Mr Jones' appeal against conviction: the grounds of appeal
Mr Jones' appeal against conviction: ground 1
Mr Jones' appeal against conviction: ground 2
Mr Jones' appeal against conviction: ground 3
Mr Jones' appeal against conviction: ground 4: general
Mr Jones' appeal against conviction: ground 4: counsel for Mr Jones' submissions
Mr Jones' appeal against conviction: ground 4: its merits
Mr Jones' appeal against conviction: ground 5
Mr Taylor's and Mr Jones' appeals against conviction: the proviso
Mr Taylor's and Mr Jones' appeals against conviction: the principles governing the application of the proviso
Mr Taylor's and Mr Jones' appeals against conviction: the application of the proviso
Mr Taylor's and Mr Jones' appeals against conviction: the outcome of the appeals and the appropriate orders
Mr Jones' appeal against sentence: the sentences imposed by the trial judge
Mr Jones' appeal against sentence: the ground of appeal
Mr Jones' appeal against sentence: Mr Jones' personal circumstances and the trial judge's sentencing remarks
Mr Jones' appeal against sentence: its merits
Mr Jones' appeal against sentence: the outcome of the appeal and the appropriate orders
Mazza JA's reasons................................................................................................................ 82
Mitchell JA's reasons............................................................................................................. 83
Taylor's conviction ground 1 and Jones' conviction ground 5
Mr Taylor's ground of appeal
Aiding and unwitting assistance
The State's aiding case
Mr Taylor's case
The trial judge's direction
Disposition of ground
Mr Jones' appeal
Jones' conviction ground 4
BUSS P: Mark Patrick Taylor (Mr Taylor) and Daniel Wade Jones (Mr Jones) were charged on indictment that on 17 November 2013 at Middle Swan they murdered Warren Gerard Batchelor, contrary to s 279 of the Criminal Code (WA) (the Code).
On 27 March 2015, after a trial in the Supreme Court before Jenkins J and a jury, Mr Taylor and Mr Jones were found guilty as charged. On 17 April 2015, each of them was sentenced to life imprisonment with a minimum non‑parole period of 21 years: The State of Western Australia v Taylor [2015] WASCSR 71.
Mr Taylor and Mr Jones have appealed against conviction. Mr Jones has also appealed against sentence. Mr Taylor and Mr Jones were represented by counsel in their appeals against conviction. Mr Jones was self‑represented in his appeal against sentence.
I would dismiss each of the appeals. My reasons are as follows.
Overview of the State's case at trial
An overview of the State's case at trial is as follows.
Mr Batchelor died in Royal Perth Hospital on 19 November 2013 as a result of head injuries that he suffered in the early hours of 17 November 2013. The injuries were inflicted in a toilet block at the Middle Swan reserve (the reserve). The reserve is a recreational area on the bank of the Swan River. There are a number of carparks in the reserve. People camp at the reserve, from time to time, overnight or for short periods. The reserve has barbecue facilities.
The toilet block comprises male and female toilets. The male toilet is used occasionally by some men as a place for consensual casual sex with other men.
In the days leading up to 17 November 2013, Mr Taylor and Mr Jones were camping at the reserve. Mr Jones had arrived in his utility, with a trailer attached, about three days earlier. Mr Taylor and his four young children had arrived about two days earlier and were staying in a caravan which had been towed there by the children's mother (ts 126). Mr Taylor and Mr Jones, who were previously unknown to each other, became acquainted while they camped at the reserve. They objected to the behaviour that was occurring in the male toilets and other conduct in the carparks.
Mr Batchelor was, at the time, aged 48. At about 1.30 am on 17 November 2013, he parked his Honda Jazz sedan in a carpark near the toilet block at the reserve. He then walked into the male disabled toilet cubicle. Another man, Mr Y, alighted from his car, which was also parked in the carpark near the toilet block. He walked into the male toilets and entered the cubicle occupied by Mr Batchelor. Mr Y locked the cubicle door and, after a short conversation, the two men agreed to engage in sexual activity (ts 126).
Shortly afterwards, Mr Y heard a knock on the cubicle door and a male voice shouting. Neither Mr Batchelor nor Mr Y opened the door but, about 10 to 15 seconds later, Mr Taylor kicked open the door. Mr Taylor entered the toilet cubicle. He looked at Mr Batchelor who was, at that stage, on his knees about to perform oral sex on Mr Y. Mr Taylor told him to get up. Mr Batchelor got to his feet and was punched forcefully in the head by Mr Taylor. Mr Batchelor fell to the floor. He was unconscious.
Mr Taylor shouted angrily at the two men in the toilet cubicle. He called them 'faggots', and said something about his children. Mr Taylor kicked and punched Mr Batchelor, who was lying unconscious on the ground, with great force (ts 126).
Mr Jones went to the toilet block with Mr Taylor. Mr Jones was armed with a metal pole. Initially, he stood at the cubicle door to prevent the occupants from leaving. However, he entered the cubicle after Mr Taylor had punched Mr Batchelor. Mr Jones walked to where Mr Batchelor was lying on the floor and, with great force, struck him to the head several times with the pole. The sound of the pole hitting Mr Batchelor and, perhaps, hitting the floor could be heard some distance away.
After assaulting Mr Batchelor, Mr Taylor turned his attention to Mr Y and punched him to the face 'a couple of times' (ts 127). Mr Taylor produced a large knife and threatened Mr Y with it. Mr Jones hit Mr Y with the metal pole, aiming for his head. Mr Y put up his arms to protect his head and was struck several times on his forearm. As this occurred, Mr Batchelor remained motionless on the floor.
Mr Y, fearing for his life, ran at Mr Taylor and Mr Jones who were standing together, effectively blocking the exit from the toilet cubicle. Mr Y managed to push his way past them. He then ran from the toilet block towards his car. Mr Taylor, who was brandishing the knife, chased Mr Y and threatened him. Mr Y got into his car. Another man (LG), who was a friend of Mr Y, was also in the car. Mr Y drove from the carpark quickly, as did a number of other vehicles (ts 127). The following day, Mr Y went to a doctor, who observed swelling on Mr Y's arm (ts 161).
Mr Taylor returned to the toilet block. He met with Mr Jones. A witness, Maria Zinni, heard Mr Taylor say, apparently to Mr Jones, words to the effect of 'Are you right?' (ts 157). Mr Taylor and Mr Jones returned to the place where they were camping, without seeking medical treatment for Mr Batchelor.
The prosecutor said the State's case as to the identity of the offenders and that they were together at the relevant time was supported by Brenda Bentley. Ms Bentley and her husband had been camping at the reserve for some time prior to 17 November 2013. She became acquainted with Mr Taylor and Mr Jones, whom she knew as 'Tayls' and 'Dan' respectively. She saw Mr Taylor emerge from the toilet block brandishing a knife, pursuing Mr Y and threatening him (ts 149). Ms Bentley heard Mr Taylor say words to the effect, 'Are you right?' and 'Let's go', after which she saw Mr Jones emerge from the toilet block (ts 149). She said the two men left the building together (ts 149). Later, Ms Bentley identified Mr Taylor and Mr Jones during a digiboard identification process conducted by the police.
Mr Batchelor regained consciousness for a short time. He managed to walk from the toilet block to his vehicle, where he collapsed. Police and emergency services were called. Mr Batchelor was taken to Royal Perth Hospital where he underwent emergency surgery for his head injuries. However, as I have mentioned, on 19 November 2013 he died from those injuries.
Mr Taylor and Mr Jones were placed under police observation. A police officer heard a splashing sound as if something had been thrown into the Swan River. Police officers arrested Mr Taylor and Mr Jones shortly afterwards. Each was interviewed by the police.
Later, when a search of the river was undertaken, a butcher's knife was discovered 30 m from the riverbank. On the State's case, this was the knife carried and brandished by Mr Taylor.
The metal pole used by Mr Jones to attack Mr Batchelor and Mr Y was not found by the police.
On 17 November 2013, Mr Jones was interviewed. He told the police that he had been staying at the reserve and that he had come to know Mr Taylor. He denied any involvement in any incident at the toilet block. Specifically, he denied ever going to the toilet block with Mr Taylor or at all around the time of the incident. He denied having participated in any assault on the night in question.
Mr Taylor was also interviewed on 17 November 2013. He denied any involvement in the alleged offence. He told the police that he had not noticed anything unusual and that he had not heard any noises that night.
On 21 January 2014, while he was a remand prisoner, Mr Taylor requested a second interview with the police. In the second interview, he said there had been people near his caravan who had scared him and his children. Someone had been doing 'burn‑outs' at the reserve. Mr Taylor told the police that, on the night in question, he locked his children in the caravan, grabbed his knife, put it down the back of his shorts and walked to the toilet block, intending to warn the people who were there to stay away from his caravan. He saw a couple of the people who had been harassing his family enter the toilet block. Mr Taylor went in and kicked the toilet door open and said, 'Just stay away from my kids. I'm sick of this shit'. A fight started in which he and another man traded punches. The other man ran from the toilet block and, at that point, he pulled out his knife and told him to stay away from his children. Mr Taylor returned to the toilet block where he saw a man standing there and another man (Mr Batchelor) on the ground. Mr Taylor said he went over to the man on the ground, who appeared to have been knocked out. He did not see any blood. Mr Taylor declined to identify the man who was standing there. When asked by the police who else was with him when he went to the toilet block, Mr Taylor replied, 'I don't wish to say' (VROI 43). Apart from giving the man on the ground 'a bit of a slap', apparently to rouse him, he did not give any assistance to the man.
Based on the evidence of Ms Bentley, the State's case was that Mr Jones' denials that he had gone to the toilet block with Mr Taylor or at all on the night in question were false. The State alleged that Mr Jones had lied because he knew the truth would implicate him in what had happened to Mr Batchelor (ts 166).
The State's case was that Mr Taylor had lied in his first interview when he denied any knowledge of what had happened at the toilet block. The State alleged that Mr Taylor had also lied in his second interview, specifically when he said that he did not see any blood in the toilet cubicle. According to the State, Mr Taylor lied in his interviews because he knew the truth would implicate him in what had happened to Mr Batchelor (ts 166).
A post‑mortem examination was conducted. A significant gash to the top of Mr Batchelor's head, which had obviously bled, was observed. Dr Daniel Moss, the forensic pathologist who conducted the autopsy, found that Mr Batchelor had suffered a fractured skull. He noticed bleeding within the skull, which had resulted in a large clot that had pushed the brain sideways and downwards, and compromised his vital functions. Dr Moss also noticed that, as a result of the trauma he had suffered, Mr Batchelor's brain was swollen. Dr Moss concluded that the cause of Mr Batchelor's death was complications arising from a head injury (ts 132).
The State's case was that each of Mr Taylor and Mr Jones acted as vigilantes on the night in question. Each was a principal offender; that is, each actually inflicted blows to Mr Batchelor which resulted in the head injuries that caused his death: s 7(a) of the Code. Alternatively, each enabled or aided the other to commit or in committing the offence: s 7(b) or s 7(c) of the Code. Alternatively, Mr Taylor and Mr Jones were liable, pursuant to s 8 of the Code, on the basis that they had a common intention to prosecute an unlawful purpose, namely to assault the occupants of the toilet cubicle using weapons, and that murder was a probable consequence of the prosecution of that unlawful purpose (ts 174 ‑ 175).
The only eyewitness to the assault on Mr Batchelor was Mr Y. He testified at some length at the trial. The State also called evidence from a number of people who were at the reserve when the offence was committed, including Ms Bentley, Ms Zinni and LG. Two of Mr Taylor's children gave evidence. The State adduced evidence from a number of police officers who attended the scene, including forensic officers, one of whom gave expert blood spatter evidence. The State also called evidence from Dr Moss, Dr Victoria Fabian, a neuropathologist, and Mr Y's doctor.
Formal admissions made by Mr Taylor and Mr Jones
Mr Taylor and Mr Jones each made admissions pursuant to s 32 of the Evidence Act 1906 (WA) to the effect that Mr Batchelor died on 19 November 2013 and that his death was caused by a head injury he sustained at the reserve on 17 November 2013.
Overview of Mr Taylor's case at trial
Mr Taylor's case, as opened by his counsel at trial, was as follows.
Mr Jones alone was criminally responsible for Mr Batchelor's death (ts 176). Mr Taylor and Mr Jones did not form a joint plan to do anything to Mr Batchelor and, although Mr Taylor went to the toilet block, he did not go there with Mr Jones.
Mr Taylor went to the toilet block alone to try and drive away the men who had been scaring him and his children. Before going to the toilet block, he told Mr Jones to stay with his children.
Mr Taylor kicked open the door to the toilet cubicle and shouted at Mr Batchelor and Mr Y. He did not kick open the door to aid Mr Jones. Mr Taylor did not assault Mr Batchelor. After he kicked open the door and shouted at the two men, Mr Y rushed at him, throwing punches. Mr Taylor returned the punches, but Mr Y was able to get past him and leave the cubicle. It was at this point that Mr Taylor became aware that Mr Jones was also in the toilet block. As Mr Y ran past Mr Jones, Mr Taylor saw Mr Jones strike Mr Y with an object (ts 182).
Mr Taylor pursued Mr Y. During the pursuit, Mr Taylor produced a knife from his pants and shouted at Mr Y, with the intention of persuading him and others to leave the carpark. Mr Y left the carpark in his vehicle. Some other cars also left (ts 182). Meanwhile, Mr Jones, who was armed with a hard and heavy weapon, had remained in the toilet cubicle with Mr Batchelor.
Eventually, Mr Taylor returned to the toilet cubicle and saw Mr Batchelor lying on the ground. He heard Mr Batchelor 'snoring' and thought he had been 'simply knocked out' (ts 183). The toilet cubicle was dark and Mr Taylor did not see any blood. Mr Taylor asked Mr Batchelor if he was all right and nudged him. Mr Batchelor did not respond.
Mr Taylor then left the toilet block. Later, he met with Mr Jones. After having a conversation, Mr Taylor threw the knife he had carried into the Swan River.
It was conceded by defence counsel, in his opening address, that Mr Taylor had lied in his first interview with the police by denying any knowledge of the offence. Counsel asserted that Mr Taylor did so, not because the truth implicated him, but because Mr Taylor was 'naïve' and 'dishonest' (ts 184). It was said on Mr Taylor's behalf that in his second interview Mr Taylor attempted 'to set the record straight' (ts 184). Defence counsel explained that Mr Taylor's reluctance in the second interview to name the second man at the toilet block was because he did not want to be labelled a 'dog' in prison, but that person was, in fact, Mr Jones (ts 185).
Mr Taylor gave sworn evidence at the trial.
Overview of Mr Jones' case at trial
Mr Jones' trial counsel made a very brief opening address to the effect that, apart from using the toilet for about 30 seconds, Mr Jones did not assault anyone inside or outside the toilet block on the night in question (ts 187 ‑ 188).
Mr Jones did not give sworn evidence at the trial.
The organisation of the balance of these reasons
It is convenient, first, to consider Mr Taylor's appeal against conviction, then Mr Jones' appeal against conviction and, finally, Mr Jones' appeal against sentence.
Mr Taylor's appeal against conviction: the grounds of appeal
Mr Taylor's grounds of appeal were amended, with leave, after the hearing of the appeal. The court ordered counsel for Mr Taylor and counsel for the State to file and serve written submissions on the amended grounds. That was done.
Ultimately, Mr Taylor relied on four grounds of appeal.
Ground 1, as developed in oral submissions at the hearing, alleges in essence that the trial judge made a wrong decision on a question of law, or a miscarriage of justice was occasioned, 'when, in relation to [Mr Taylor's] culpability for murder pursuant to [s 7 of the Code]', her Honour failed adequately to direct the jury's attention to 'the intent of the aider rather than the aider's knowledge of the intention of the principal offender'.
Ground 2 alleges that there was a miscarriage of justice 'when, in relation to [s 8 of the Code]', her Honour failed adequately to direct the jury that '[Mr Taylor's] culpability was confined to the common intention of the offenders, namely an intention to use violence, including weapons, against the persons who were inside the toilet cubicle … and not an intent subsequently formed by the co‑accused' (original emphasis).
Ground 3 alleges that her Honour made a wrong decision on a question of law, or a miscarriage of justice occurred, 'when the jury was asked to consider whether the location of the injuries to the deceased's skull would have been caused when the deceased fell to the ground and hit his head or whether the injuries are on a place on the deceased's head where it is more likely they would have been caused when a blow was delivered directly to that area'.
Ground 4 alleges that a miscarriage of justice occurred because 'the jury [was] not directed that before convicting [Mr Taylor] of murder they had to be satisfied beyond reasonable doubt that, at the time the deceased was first physically assaulted, [Mr Taylor] had the intention required by s 279(1)(a) or (b) of [the Code], or was aiding Mr Jones with knowledge that [Mr Jones] had that intention'.
On 6 June 2015, Mazza JA granted leave to appeal on ground 1. Leave to appeal has not yet been granted on any of the other grounds.
Mr Taylor's appeal against conviction: ground 1: s 7(b) and s 7(c) of the Code
The parties to an offence are specified in s 7, s 8, s 9 and s 10 of the Code.
Section 7 lists four categories of parties to an offence. A person who is within one or other of the categories 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.
Section 7 provides, relevantly:
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.
Section 7(b) operates to make a person liable if he or she does any act or makes any omission for the purpose of enabling or aiding another person to commit the offence.
Similarly, s 7(c) makes a person criminally liable if the person aids another person in committing the offence.
In R v Solomon [1959] Qd R 123, Philp J (Mansfield CJ agreeing) analysed the Queensland counterpart of s 7(c):
Reading s 7 (c) with s 23 it is apparent that if A aids B in B's commission of the offence of robbery A is criminally responsible for the robbery but if he does not willingly aid him in the commission of a homicide done in course of the robbery A is not criminally responsible for the homicide.
Quite apart from s 23 how can A be said to aid B in the commission of an offence unless he consciously aids him in the doing of the act which constitutes the offence? See Russell on Crimes and Misdemeanours, 11th ed, p 156.
It will be noticed that s 7(c) does not repeat the verbiage of s 7(a); it does not create criminal responsibility in a person who aids in doing the act which constitutes the offence ‑ the responsibility attaches only to a person who aids in the commission of the offence. That suggests that to be responsible under s 7(c) the aider must know what offence is being committed or at least what offence might be committed by the person he is aiding.
Section 23 makes it plain that if B does an act which is done independently of the will of A the latter cannot be criminally responsible for that act. Similarly under s 7(d) ‑ if A counsels or procures B to commit an offence A is liable only for the actual offence he has consciously counselled or procured (128). (original emphasis)
In R v Beck [1990] 1 Qd R 30, Macrossan CJ (McPherson J agreeing) noted that the intention involved in the criminal activity referred to in the Queensland counterpart of s 7(b) emerges from the use of the phrase 'act for the purpose of … '. His Honour also noted that similar express words are absent from the Queensland counterpart of s 7(c), but, as Philp J observed in Solomon (128), it is hardly possible to aid the commission of an offence without awareness of the offence which is (or might be) committed (37 ‑ 38).
In O (a child) v The Queen (Unreported, WASCA, Library No 970219, 9 April 1997), Malcolm CJ (Kennedy & Franklyn JJ agreeing) said:
Mere presence at the commission of an offence will not of itself be sufficient to constitute aiding. There must be, at least, a positive encouragement: R v Corey [1882] 8 QBD 53. In R v Clarkson, Carroll and Dodd [1971] WLR 1402 it was held that on a charge of aiding and abetting a rape on the basis of continuing and non-accidental presence, the prosecution must establish actual encouragement of the commission of the offence, as well as an intention to encourage. In R v Beck, above, at 38 [Macrossan CJ] said:
'It is not possible to be an aider through an act which unwittingly provides some assistance to the offender in the commission of the offence and it is not possible to be an aider, whatever the intention, unless support for the commission of the offence is actually provided.'
[Macrossan CJ] however acknowledged that voluntary and deliberate presence during the commission of a crime without opposition or real dissent may be evidence of wilful encouragement or aiding. Intentional encouragement may also be inferred from expressions, gestures or actions intended to signify approval: Beck, at 37 (7).
See also BG v The State of Western Australia [2005] WASCA 45; (2005) 152 A Crim R 207 [62] (Malcolm CJ; EM Heenan & Simmonds JJ agreeing).
In R v Jeffrey [2003] 2 Qd R 306, McPherson JA made these comments about the Queensland counterparts of s 7(b) and s 7(c):
As regards both s 7(1)(b) and s 7(1)(c) of the Code, it is settled that the accused is criminally responsible only if, in giving aid or assistance, he knows that the offence is being committed or is intended: see R v Beck [1990] 1 Qd R 30, 38; R v Jervis [1993] 1 Qd R 643, 647 ‑ 648; which means that it must be proved that he knows the essential facts constituting or making up the offence that is being or about to be committed by the person he is aiding or assisting. See Giorgianni v The Queen (1985) 156 CLR 473. The requisite state of mind which had to be established against the appellant to make him criminally responsible under s 7(1)(c) was that he knew that one or more of the others was intending to kill or to do grievous bodily harm.
… In relying on s 7(1)(b) or s 7(1)(c) to establish the guilt of a person as a secondary offender, it is not incumbent on the prosecution to prove that any act on the part of that person caused the death or even significantly contributed to it, or to prove on the part of that person a specific intention to kill or do grievous bodily harm to the victim. Proof of those matters would tend to show that that person was not merely a secondary offender under s 7(1)(b) or s 7(1)(c), but the actual perpetrator of the offence under s 7(1)(a). In the prosecution case against the secondary offender, the prosecution is, of course, bound to prove all the elements of the principal offence to which the secondary offender is alleged to have been a party; but, when that is done, all that is necessary to establish the criminal responsibility of such an offender is that, with the requisite knowledge or state of mind, he did an act for the purpose of aiding or assisting another person or persons to commit that offence (310 ‑ 311).
See also R v Pascoe (Unreported, QCA, Library 242 of 1997, 19 December 1997), 4 ‑ 5 (McPherson JA).
So, a person will not be criminally liable under s 7(b) or s 7(c) unless the State proves beyond reasonable doubt that:
(a)a person or persons (the principal) has or have committed the offence;
(b)the person alleged to be the aider had actual knowledge of the facts amounting to the offence committed by the principal (that is, actual knowledge of the essential facts constituting the offence that was being or about to be committed or might be committed by the principal);
(c)the aider did or omitted to do something with the intention of aiding or assisting in the doing of the acts which constitute the offence; and
(d)what the aider did or omitted to do actually aided or assisted the principal to commit or in committing the offence.
See Scafetta v The State of Western Australia [2010] WASCA 209 [12] (McLure P; Buss JA & Mazza J agreeing); Bomford v The State of Western Australia [2014] WASCA 43 [63] (Mazza JA; Buss JA & Hall J relevantly agreeing); Ritchie v The State of Western Australia [2016] WASCA 134 [84] (McLure P; Buss JA relevantly agreeing generally & Mazza JA relevantly agreeing).
A person will do or omit to do something, with the intention of aiding or assisting in the doing of the acts which constitute the offence, if the person's acts or omissions were willed and the person's purpose in doing the act or making the omission was to aid or assist in the doing of the acts which constitute the offence.
Mr Taylor's appeal against conviction: ground 1: the trial judge's summing up
The trial judge informed the jury that:
(a)The State's case under s 7 of the Code was that one of the accused (that is, either Mr Taylor or Mr Jones) caused Mr Batchelor's death by inflicting a blow or blows that fractured his skull, and the other accused aided him to do so (ts 1167, 1173, 1204).
(b)The State's case was that both of the accused 'went together to the toilet block to jointly or together seriously assault the persons in there, and that they were armed, and that they each knew they were armed, and [that] they each knew that those weapons would or could be used in the process of that assault' (ts 1204).
(c)The State 'cannot say for sure that it was Mr Jones as opposed to Mr Taylor who inflicted the fatal injury, and that is because of the medical evidence' (ts 1173).
(d)Dr Moss' evidence was that 'a metal pipe could cause the fatal injuries on Mr Batchelor, that a punch with a fist would be extremely unlikely to cause the degree of injury in this case, but that if a person was punched and the impact caused that person to fall over and hit their head on the floor, the hitting of the head on the floor might cause the head injury, and that it was possible that kicking could cause the fatal head injuries, depending upon the footwear and also whether the deceased's head was supported at the time' (ts 1173 ‑ 1174). Dr Moss said 'it was difficult to say and, in his experience, it was not as likely as a more solid object, but it was possible' (ts 1174).
(e)The State's position was that 'it is more likely, and that it is open for you to decide, that it was Mr Jones who inflicted the fatal injuries, and that Mr Taylor aided him to do so, but that it would also be open to you, on the evidence, to find that Mr Taylor had done so, that is, inflicted the fatal injuries, and Mr Jones had aided him to do so' (ts 1174, 1204).
(f)The State said that, in the end, it did not matter whether it was Mr Taylor or Mr Jones who inflicted the fatal blows because 'they both intended that, at the very least, life endangering injuries would be caused; that is, they intended to cause bodily harm and that, objectively speaking, that bodily harm was likely to endanger Mr Batchelor's life' (ts 1204).
(g)Mr Taylor's case was that 'he did not touch Mr Batchelor at all' (ts 1168). Mr Taylor had 'no idea … that Mr Jones was going to come into the toilet cubicle and assault Mr Batchelor' (ts 1168). Mr Taylor did not aid Mr Jones (or any other person) to inflict a blow or blows on Mr Batchelor (ts 1168). Mr Taylor's case was, 'quite simply, he [did not] touch Mr Batchelor and he is not liable in any way for his death and he did not agree with anybody that an assault on Mr Batchelor or anyone in the toilet cubicles would take place' (ts 1174).
(h)Mr Jones' case was that the State had not proved that he was present in the toilet cubicle when Mr Batchelor received his fatal injuries and, accordingly, the State had not proved that Mr Jones killed Mr Batchelor 'by his own acts or that he aided another to do so' (ts 1168). Mr Jones did not dispute that two men attacked Mr Batchelor, but he denied that he was one of them (ts 1205). Mr Jones said that 'there is no description from [Mr Y] that would identify him as an offender, and he says that the evidence of Ms Bentley is unreliable and you cannot rely upon it' (ts 1205).
Her Honour told the jury that the State may prove that an accused murdered Mr Batchelor by one of the following alternatives. First, by proving that the accused 'actually did the acts which caused [Mr Batchelor's] death' and that the accused did those acts 'with an intent to kill or cause a serious injury to Mr Batchelor' (ts 1166). Secondly, by proving that the accused 'aided the person who did the acts which killed Mr Batchelor' (ts 1166). Thirdly, by proving that the murder was committed in the prosecution of 'an unlawful common purpose to which [the] accused was a party' (ts 1166).
The trial judge directed the jury, in essence, that in order to prove that an accused aided another (which, on the evidence, could only be Mr Taylor or Mr Jones) to murder Mr Batchelor, the State must prove three elements:
(a)first, that the accused 'aided another person' to do the acts which killed Mr Batchelor;
(b)secondly, that the killing was unlawful; and
(c)thirdly, that the accused 'knew that the person he was aiding', intended 'either … to cause Mr Batchelor's death or intended to cause [him] a bodily injury of such a nature as to endanger or be likely to endanger [his] life' (ts 1166).
Her Honour also gave this direction on 'aiding':
If you're considering the case against an [accused] who you think aided in the killing of Mr Batchelor, you will be considering whether that accused aided the person who caused the death, knowing that the person who caused the death, either intended to cause Mr Batchelor's death or intended to cause a bodily injury of such a nature as to endanger or be likely to endanger the life of Mr Batchelor (ts 1169).
Later in her summing up, the trial judge developed her direction in relation to 'aiding' as follows:
The alternative State case against each accused is that he assisted or aided that person to murder Mr Batchelor.
It is the law that when a criminal offence is committed any person who actually does the acts which constitute the offence is guilty of it, and the law also provides that any person who has aided another person in committing the offence is deemed to have taken part in the committing of the offence, and is guilty of it.
If a person aids someone to commit murder or, indeed, manslaughter, he is just as guilty of that offence as the person whom he assisted, and who actually did the physical acts which constitute the offence. So what does it mean to aid in the commission of a criminal offence? Before an accused may be found guilty in the capacity as an aider, the State must satisfy you of two things.
First, it must satisfy you that the accused you are considering knew what offence was being committed by the person he aided in the sense that he had actual knowledge of all the essential facts which make the act done an offence as opposed, merely, to a suspicion that those facts existed. That … knowledge might be inferred from proof of the accused's exposure to the obvious.
It's not necessary that the accused had actual knowledge that the person who he's aiding is going to hit the victim on the head first and then on the arm. That kind of detailed knowledge is not required to be proved but you must be satisfied that he did have knowledge of all the sort of essential facts which make the act done an offence.
So he must know that a serious assault, in the case of murder which is done with intent to kill or cause a life endangering injury, is being committed before he can be found guilty as an aider.
Secondly, the State must satisfy you that the accused you are considering gave actual assistance to the commission of the offence. For a person to be an aider, there must be some deliberate active step by word or action which assists or encourages the commission of the offence. Mere presence at the commission of an offence does not of itself amount to aiding. It's not enough for the State to show that the accused you are considering knew what was going on but did nothing to stop it.
A person who's merely a passive spectator of a crime and does not take any part in it or does not interfere to prevent it does not commit an offence in the capacity as an aider. It may be reprehensible for a person to stand and watch while others commit an offence but to do so is not itself a criminal offence.
Before you're entitled to convict an accused in the capacity as an aider, it must be shown by the State not only that the accused knew the offence was being committed or may be committed, but that he actually aided, that is, gave actual assistance to the commission of the offence.
Can I provide a couple of examples to illustrate these points? First, if a person who knows that a robbery is taking place drives the getaway car for the robbers, that person is an aider. He is equally as guilty as the others who actually carry out the robbery.
If a person stands outside a building or waits outside or near a building and the purpose of him standing there, he knows, is to give warning to another who he knows is in the building in order to steal, then his actions would amount to assistance and he would be an aider to the offence and guilty of stealing.
In both those two examples, the requirements of both knowledge of the offence and actual assistance are satisfied. However, you can distinguish those examples from one where you're walking down Hay Street and you see a bank hold up take place. The fact that you stand by and watch the hold up doesn't make you an aider to it. In such an example, the first requirement of knowledge is satisfied. You know what's taking place but you give no actual assistance.
Now, another example, suppose you walk into a bank and a person you see is in a hurry to leave the bank and they drop their bag. You pick it up, you hold the door open for them to enable them to leave quickly.
If it turns out that the person you helped is a bank robber, you would not be guilty of robbery because although you provided actual assistance to them, you helped them leave, you did not do that knowing that they were going to commit an armed robbery, so the requirement of knowledge in that example is not met.
Now, the State says that these two accused aided one another to commit the offence of murder or in the alternative, manslaughter. The State says that they went to the toilet cubicle in company with each other intending to assist one another by having another person there to provide help if required, that Mr Taylor assisted in the assault by initially kicking the door in and that they both then aided one another by assaulting the deceased.
As I've said, before an aider to a criminal charge may be found guilty, the State must satisfy you that the accused you are considering knew what offence was being committed by the other person and secondly, that the accused gave actual assistance or encouragement, either by act or word to that person to commit the offence.
So in order to find an accused guilty of murder as an aider, you would have to be satisfied that that person, that accused, gave actual assistance, that he did something positive to help in the murder of Mr Batchelor and that he did that act or acts knowing that the person who actually inflicted the fatal injuries was going to assault Mr Batchelor and he knew that that person intended to kill or cause a life endangering injury by his assaults.
If you weren't satisfied of that and you were considering whether one of the accused was guilty of being an aider to the offence of manslaughter, you would have to be satisfied beyond reasonable doubt that the accused you are considering provided actual assistance, did something positive to help the other assault Mr Batchelor.
And you would have to be satisfied that he gave that assistance in contemplation that a blow or blows of the kind that resulted in the skull fractures might be used by the other person, but you would not have to be satisfied that the blows were intended to kill or endanger life.
You would have to be satisfied that the person who aided knew that the assault of the kind that caused the deceased's death was being committed or was going to be committed and that he provided actual assistance in the assault.
He doesn't have to be present at the time the assault which caused death occurred. He can do acts prior, give actual assistance prior to the assaults occurring, but if that is the case, then he has to provide that assistance knowing either in the case of murder that assaults are going to occur which are intended to cause death or cause a serious injury or that in the case of [manslaughter] that assaults are going to take place of the kind that resulted in the skull fractures being caused (ts 1174 ‑ 1177). (emphasis added)
Neither defence counsel for Mr Taylor nor defence counsel for Mr Jones sought any additional direction or redirection in relation to s 7 of the Code.
Mr Taylor's appeal against conviction: ground 1: the trial judge's 'question trail' document
During her summing up the trial judge gave the jury a 'question trail' document she had prepared (ts 1180). Her Honour had previously discussed a draft of the document with the prosecutor, defence counsel for Mr Taylor and defence counsel for Mr Jones (ts 1133 ‑ 1136, 1145 ‑ 1150).
The document reads, relevantly to ground 1:
Killing
1.Has the State proven that the particular accused you are considering (the accused) killed Mr Batchelor (the deceased) or that he provided actual assistance to another to do so?
(a)If yes, go to question 2.
(b)If no, go to question 5.
Unlawfulness
2.Has the State proven that the death was unlawful?
(a) If yes, go to question 3.
(b)If no, go to question 5.
Intention
3.Has the State proven that at the time the accused killed the deceased he intended to cause the deceased's death or, if he provided actual assistance in the killing, that he did so knowing that person whom he assisted intended to cause the deceased's death?
(a)If yes, the verdict is guilty of murder (as long as the jury have answered yes to questions 1 and 2). No further questions should be answered in relation to that accused.
(b)If no, go to question 4.
4. Has the State proven that at the time the accused killed the deceased he intended to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the deceased's life, or if he provided actual assistance in the killing, that he did so knowing that the person who he assisted intended to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the deceased's life?
(a)If yes, the verdict is guilty of murder (as long as the jury have answered yes to questions 1 and 2). No further questions should be answered in relation to that accused.
(b)If no, go to question 5. (emphasis added)
Her Honour provided the jury with detailed instructions about the use of the document (ts 1182 ‑ 1185).
The trial judge said:
(a)The jury did not have to use the question trail in the document. It was 'entirely a matter for [the jury] if you do or not' (ts 1182).
(b)The 'question trail is not a substitute for my oral directions'. The document did not include 'everything I have said about the law'. The jury 'must apply everything that I have instructed you about the law' (ts 1182).
(c)The question trail can only be used 'by starting at question 1 and answering each question until the question trail states that an answer means that a verdict has been arrived at and no further questions should be answered' (ts 1182).
(d)Where the question trail uses the word 'proved', 'it always means proved … beyond reasonable doubt' (ts 1182).
(e)Any answer to a question in the question trail, whether it is yes or no, must be a unanimous answer. That is, 'you all must agree on that answer before that question can be considered to have been answered and [you] can move to the next question' (ts 1182 ‑ 1183).
Her Honour also took the jury step by step through the 'question trail' document (ts 1183 ‑ 1185). In particular, her Honour repeated, without elaboration, the text of questions 3 and 4 (ts 1183 ‑ 1184).
Neither defence counsel for Mr Taylor nor defence counsel for Mr Jones objected to any of the contents of the 'question trail' document. Also, neither of them sought any redirection or additional direction on the document.
Mr Taylor's appeal against conviction: ground 1: counsel for Mr Taylor's submissions
Counsel for Mr Taylor cited R v Roberts [2012] QCA 82 as authority for the proposition that (subject to an exception which is not relevant in the present case) an accused will not be guilty of enabling or aiding another person to commit an offence (s 7(b)) or aiding another person in committing an offence (s 7(c)) unless the accused knew all the essential facts or circumstances which must be established by the State in order to show that the offence was committed by the principal offender and that, with that knowledge, the accused intentionally assisted or encouraged the principal offender to commit that offence [166], [170] ‑ [171] (Atkinson J, White JA agreeing).
Counsel also cited Bowman v The State of Western Australia [2008] WASCA 63 as authority for the propositions that a person cannot be an aider through an act which unwittingly provides assistance to the principal offender and a person cannot be an aider unless some support for the commission of the offence is actually provided [37] ‑ [39] (Miller JA, Martin CJ & Wheeler JA agreeing).
Counsel for Mr Taylor submitted, in effect, that the trial judge did not direct the jury that in order to find Mr Taylor guilty of murder, on the basis that he aided or assisted Mr Jones, the jury had to be satisfied that he did or omitted to do something with the intention of aiding or assisting in the doing of the acts constituting that offence.
It was argued that it was necessary for her Honour expressly and specifically to instruct the jury, in her summing up, that the jury must be satisfied beyond reasonable doubt that, when Mr Taylor did any act or acts which assisted Mr Jones, he did that act or those acts with the intention that the act or acts would assist Mr Jones. Counsel argued that her Honour failed to give, as she was bound to, an express and specific instruction in those terms.
Accordingly, so it was submitted, the trial judge made a wrong decision on a question of law; alternatively, the inadequacy of her Honour's directions occasioned a miscarriage of justice.
Mr Taylor's appeal against conviction: ground 1: its merits
The State's case under s 7(b) or s 7(c) of the Code was that one of the accused (that is, either Mr Taylor or Mr Jones) caused Mr Batchelor's death by inflicting a blow or blows that fractured his skull, and the other accused aided him to do so (ts 1167, 1173, 1204). Further, the State's case was that both of the accused 'went together to the toilet block to jointly or together seriously assault the persons in there, and that they were armed, and that they each knew they were armed, and [that] they each knew that those weapons would or could be used in the process of that assault' (ts 1204).
Mr Taylor's case was that he did not touch Mr Batchelor, he had no idea that Mr Jones was going to come into the toilet cubicle and assault Mr Batchelor, and he did not agree with anyone that an assault on Mr Batchelor or any person in the toilet cubicles should take place.
Mr Jones' case was that he did not attack Mr Batchelor and the State had not proved that he was present in the toilet cubicle when Mr Batchelor received his fatal injuries.
The trial judge did not, in terms, expressly and specifically instruct the jury, in her summing up, that in order to find Mr Taylor guilty of the offence of murder, on the basis that he aided or assisted Mr Jones, the jury had to be satisfied that Mr Taylor did or omitted to do something with the intention of aiding or assisting in the doing of the acts which constituted that offence.
The 'question trail' document did not make any reference to whether Mr Taylor acted with the intention of aiding or assisting Mr Jones in the commission of the offence of murder.
The critical question is whether her Honour's statements, in her summing up:
(a)that '[f]or a person to be an aider, there must be some deliberate active step by word or action which assists or encourages the commission of the offence' (ts 1175) (emphasis added);
(b)that before you are entitled to convict an accused in the capacity as an aider, 'it must be shown by the State not only that the accused knew the offence was being committed or may be committed, but that he actually aided, that is, gave actual assistance to the commission of the offence' (ts 1175) (emphasis added);
(c)in illustrating the concept of aiding by reference to the example of stealing, that a person who stands outside a building, and 'the purpose of him standing there, he knows, is to give a warning to another who, he knows, is in the building in order to steal', then the first‑mentioned person would be an aider to the offence of stealing (ts 1175 ‑ 1176) (emphasis added);
(d)in the example her Honour gave, that 'the requirements of both knowledge of the offence and actual assistance are satisfied' (ts 1176);
(e)before a person may be found guilty of an offence in the capacity of an aider, 'the State must satisfy you that the accused you are considering knew what offence was being committed by the other person and … that the accused gave actual assistance or encouragement, either by act or word to that person, to commit the offence' (ts 1176) (emphasis added);
(f)in the present case, in order to find an accused guilty of murder in the capacity of an aider, 'you would have to be satisfied that [the] accused gave actual assistance, that he did something positive to help in the murder of Mr Batchelor and that he did that act or acts knowing that the person who actually inflicted the fatal injuries was going to assault Mr Batchelor and he knew that that person intended to kill or cause a life‑endangering injury by his assaults' (ts 1176 ‑ 1177) (emphasis added); and
(g)in the course of directing on aiding in relation to the offence of manslaughter, 'you would have to be satisfied beyond reasonable doubt that the accused you are considering provided actual assistance, did something positive, to help the other assault Mr Batchelor' and 'you would have to be satisfied that he gave that assistance in contemplation that a blow or blows of the kind that resulted in the skull fractures might be used by the other person' (ts 1177) (emphasis added),
were, in combination and in the context of the State's case, Mr Taylor's case and Mr Jones' case, an adequate instruction that the jury had to be satisfied that Mr Taylor did or omitted to do something with the intention of aiding or assisting in the doing of the acts which constituted the offence of murder.
In my opinion, the trial judge's use of the word 'deliberate', in the context of her statement that '[f]or a person to be an aider, there must be some deliberate active step by word or action which assists or encourages the commission of the offence' (ts 1175) (emphasis added), related to the action itself as distinct from the intended effect of the action. That direction was not, of itself, adequate to convey to the jury the relevant mental element, namely that the aider must have done or omitted to do something with the intention of aiding or assisting in the doing of the acts which constituted the offence. See Ritchie, where the trial judge used relevantly identical language in directing the jury in relation an accused who, on the State's case, aided or assisted his co‑offender to murder the victim [88], [96].
However, in the present case, I am satisfied that all of her Honour's statements, which I have set out at [82] above, were, in combination and in the context of the State's case, Mr Taylor's case and Mr Jones' case, an adequate instruction as to the relevant mental element.
In particular:
(a)Her Honour's statement that 'it must be shown by the State not only that the accused knew the offence was being committed or may be committed, but that he actually aided, that is, gave actual assistance to the commission of the offence' (ts 1175) (emphasis added), would have conveyed to the jury (in the applicable context, including the State's case that the two accused went together to the toilet block to jointly or together seriously assault the persons in there, and that they were armed, and that they each knew they were armed, and that they each knew that those weapons would or could be used in the process of that assault) that an accused could not be convicted in the capacity as an aider unless the State proved that the accused knew that the offence was being committed or may be committed, as alleged by the State, and that the accused gave actual assistance 'to the commission of the offence' (emphasis added); that is, in essence, actual assistance to the co‑accused (with the specified knowledge) in the commission of the offence of murder. The giving of actual assistance to the co‑accused (with the specified knowledge) in the commission of the offence connotes, in the applicable context, a requirement that the alleged aider must necessarily have intended, in the circumstances, that his assistance would actually assist the co‑accused to commit or in committing the offence of murder.
(b)It is inherent in her Honour's illustration of the concept of aiding by reference to a person who stands outside a building, and 'the purpose of him standing there, he knows, is to give a warning to another who, he knows, is in the building in order to steal' (ts 1175 ‑ 1176), that the alleged aider must necessarily have intended, in the circumstances, that any warning he gave would actually assist the other person to commit or in committing the offence of stealing.
(c)Her Honour's statement that 'the State must satisfy you that the accused you are considering knew what offence was being committed by the other person and … that the accused gave actual assistance or encouragement … to that person, to commit the offence' (ts 1176) (emphasis added), would have conveyed to the jury (in the applicable context, including the State's case) that an accused could not be convicted in the capacity as an aider unless the State proved that the accused knew that the offence was being committed, as alleged by the State, and that the accused gave actual assistance or encouragement 'to that person, to commit the offence'. The giving of actual assistance to the other person (with the specified knowledge) to commit the offence connotes, in the applicable context, a requirement that the alleged aider must necessarily have intended, in the circumstances, that his assistance would actually assist the other person to commit or in committing the offence of murder.
(d)Her Honour's statement that 'you would have to be satisfied that [the] accused gave actual assistance, that he did something positive to help in the murder of Mr Batchelor and that he did that act or acts knowing that the person who actually inflicted the fatal injuries was going to assault Mr Batchelor and he knew that that person intended to kill or cause a life‑endangering injury by his assaults' (ts 1176 ‑ 1177) (emphasis added), would have conveyed to the jury (in the applicable context, including the State's case) that an accused could not be convicted in the capacity as an aider unless the State proved that the accused knew the person who actually inflicted the fatal injuries was going to assault Mr Batchelor, and that the accused knew the person who actually inflicted the fatal injuries intended to kill or cause a life‑endangering injury by the assaults, and that the accused (with that knowledge) 'did something positive to help in the murder of Mr Batchelor'. The doing of something positive (with the specified knowledge) to help in the murder of Mr Batchelor connotes, in the applicable context, a requirement that the alleged aider must necessarily have intended, in the circumstances, that the positive things he did would actually assist the other person to commit or in committing the offence of murder.
(e)Her Honour's statements, in the course of directing on aiding in relation to the offence of manslaughter, were consistent with and would have reinforced the statements she made in the course of directing on aiding in relation to the offence of murder. Her Honour referred, in the context of manslaughter, to the accused having done 'something positive' to help the other person assault Mr Batchelor and to the accused having given that assistance 'in contemplation that a blow or blows of the kind that resulted in the skull fractures might be used by the other person' (ts 1177) (emphasis added). The giving of actual assistance to the other person, by doing something positive to help the other person assault Mr Batchelor, in the knowledge that a blow or blows of the kind that resulted in Mr Batchelor's skull fractures might be inflicted by the other person, connotes, in the applicable context, a requirement that the alleged aider must necessarily have intended, in the circumstances, that the positive things he did would actually assist the other person to commit or in committing the offence of manslaughter.
I am satisfied that the trial judge did not make a wrong decision on a question of law in directing the jury in relation to criminal liability as an aider under s 7(b) or s 7(c) of the Code. Her Honour did not misdirect the jury on the element of intention. On a fair reading of her summing up as a whole, in the applicable context, her Honour adequately conveyed to the jury that an accused will not be criminally liable under s 7(b) or s 7(c) unless the State proves beyond reasonable doubt, relevantly, that the accused alleged to be an aider did something with the intention of aiding or assisting another person in the doing of the acts which constitute the offence of murder. Her Honour's directions on aiding did not occasion a miscarriage of justice.
I am also satisfied that, in the circumstances of the present case, neither Roberts nor Bowman advances Mr Taylor's case on ground 1.
As to Roberts, Mr Taylor denied in his video‑recorded interviews with the police and in his sworn evidence at the trial that he had assaulted Mr Batchelor or caused him any injuries. Further, Mr Taylor denied that he had formed any joint plan or common intention with Mr Jones to use violence and weapons against the occupants of the toilet cubicle. Mr Taylor's defence was that he did not himself unlawfully kill Mr Batchelor nor did he aid Mr Jones to do so. Unlike the offender in Roberts, who admitted that he had assaulted the victim and who offered an explanation as to his intention in doing so, Mr Taylor denied that he had assaulted Mr Batchelor and he denied that he did any acts which might have aided or assisted Mr Jones to unlawfully kill Mr Batchelor. Accordingly, the specific and express issue of intention that had to be determined by the jury in Roberts did not arise in the present case.
As to Bowman, Mr Taylor did not suggest in his video‑recorded interviews with the police or in his sworn evidence at the trial that he unwittingly aided or assisted Mr Jones. As I have mentioned, Mr Taylor denied assaulting Mr Batchelor and denied having aided or assisted Mr Jones to do so. Mr Taylor asserted, in effect, that Mr Jones must have attacked and killed Mr Batchelor while Mr Taylor followed Mr Y from the toilet block towards Mr Y's car.
Ground 1 fails.
Mr Taylor's appeal against conviction: ground 2: s 8 of the Code
Section 8 of the Code provides:
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.
Section 8(1) requires proof of three matters. First, a common intention to prosecute an unlawful purpose. Secondly, that an offence was committed in the prosecution of the common unlawful purpose. Thirdly, that the offence committed was of such a nature that its commission was a probable consequence of the prosecution of the common unlawful purpose.
In R v Keenan [2009] HCA 1; (2009) 236 CLR 397, Kiefel J (Hayne J relevantly agreeing & Heydon & Crennan JJ agreeing) said in relation to the Queensland counterpart of s 8:
The purpose of s 8 is to extend the criminal responsibility of the parties to a common purpose to an offence other than that which was intended to be committed. The section limits the extension of that responsibility by requiring that the nature of the offence committed be such as to be a probable consequence of the common purpose. The test of probable consequence reflects the historical approach of the common law. The foundations for provisions such as s 8 may be traced to Sir Matthew Hale (Darkan v The Queen (2006) 227 CLR 373 at 383 [29] per Gleeson CJ, Gummow, Heydon and Crennan JJ, referring to Hale, Historia Placitorum Coronae (1736), vol 1, p 617) and reference to it is made in Foster's Crown Law (Foster, A Report of Some Proceedings on the Commission for the Trial of the Rebels in the Year 1746, in the County of Surry; and of Other Crown Cases, 3rd ed (1809), p 369). Responsibility does not depend upon the foresight of the parties to the common purpose. Although the common law has come to embrace such a test, the test in s 8 is an objective one (Stuart v The Queen (1974) 134 CLR 426 at 442 per Gibbs J, Menzies and Mason JJ agreeing) [102].
See also R v Barlow [1997] HCA 19; (1997) 188 CLR 1; Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373.
Section 8(1) operates separately from, and in addition to, s 7(a), s 7(b), s 7(c) and s 7(d) of the Code.
Mr Taylor's appeal against conviction: ground 2: the trial judge's summing up
After stating for the jury the substance of s 8 of the Code, the trial judge said:
Now, to prosecute an unlawful purpose merely means to carry out an unlawful purpose. So it is sufficient that the common intention to carry out the unlawful purpose was formed at any time prior to the commission of the offence that you are considering. It doesn't have to be a common intention formed a week beforehand or a day beforehand. It can be formed immediately before the commission of the offence (ts 1178).
Her Honour told the jury that the State's alternative case under s 8 was that Mr Taylor and Mr Jones agreed that they would carry out an unlawful purpose, 'being to use violence using weapons against the persons who were inside the toilet cubicle' (ts 1178).
The trial judge explained that it was a matter for the jury 'to decide whether there was a common intention to use violence against the persons who were inside the toilet cubicle' (ts 1178). She added that, as a matter of law, 'the use of violence and weapons against such persons would be an unlawful purpose' (ts 1178).
Next, her Honour directed the jury that before they could convict an accused of murder, on the basis of the State's alternative case under s 8, '[you] must be satisfied that … murder was a probable consequence of the prosecution of the unlawful purpose'; that is, 'the commission of the offence [of murder] has not merely to be possible, [it must] be probable in the sense that it could well have happened in the carrying out of the unlawful purpose' (ts 1178).
The trial judge said:
So before an accused can be found guilty of murder on this basis the following matters have to be proved.
First, that the accused you are considering formed a common intention with another to carry out an unlawful purpose. In this respect you should ask yourselves what did the accused you are considering agree was to happen in the toilet cubicle or toilet block?
Secondly, whilst carrying out the unlawful purpose, murder must be committed by one of the participants in the unlawful purpose.
Thirdly, that murder must be a probable consequence of the carrying out of the unlawful purpose. In this respect you should ask yourselves whether murder could well have happened when the unlawful purpose was being carried out.
So if you, say, accepted the State's proposition that the unlawful purpose was to use violence and weapons against the persons inside the cubicle, you would ask yourselves was murder a probable consequence of carrying out the infliction of violence and using weapons on the persons inside the cubicle? Could murder well have happened when you're assaulting people with violence and weapons?
This requires you to consider whether it could have well happened that during an assault with weapons one participant would get so angry or have another emotion that resulted in them forming an intent to kill or to cause a life-endangering injury, and that they would, with that intent, inflict [a] blow or blows and the victim would die.
If those matters are proven then the accused you are considering is guilty of murder on the basis of unlawful common purpose (ts 1178 ‑ 1179).
Neither defence counsel for Mr Taylor nor defence counsel for Mr Jones sought any redirection or additional direction in relation to s 8 of the Code.
Mr Taylor's appeal against conviction: ground 2: the trial judge's 'question trail' document
The trial judge's 'question trail' document reads, relevantly to ground 2:
Unlawful purpose
5.Has the State proved that Mr Taylor and Mr Jones formed a common intention to use violence with a weapon on the occupants of the toilet cubicle (the unlawful common purpose)?
(a)If 'yes', go to question 6.
(b)If 'no', the verdict is not guilty of murder. Go to question 10.
6.Has the State proved that during the carrying out of the unlawful common purpose the deceased was murdered, that is, he was unlawfully killed and that the person who inflicted the fatal blows intended to kill him or to cause him a bodily injury of such a nature as to endanger or be likely to endanger his life?
(a)If 'yes' go to question 7.
(b)If 'no', the verdict is not guilty of murder. Go to question 8.
7.Has the State proved that murder was a probable consequence of the carrying out of the unlawful common purpose?
(a)If 'yes', the verdict is guilty of murder (as long as the jury have also answered yes to questions 5 & 6). No further questions should be answered in relation to that accused.
(b)If 'no' go to question 8.
As I have mentioned in considering ground 1, her Honour gave the jury detailed instructions about the use of the document (ts 1182 ‑ 1185).
Also, as I have mentioned in considering ground 1, neither defence counsel for Mr Taylor nor defence counsel for Mr Jones objected to any of the contents of the 'question trail' document, and neither of them sought any redirection or additional direction on the document.
Mr Taylor's appeal against conviction: ground 2: counsel for Mr Taylor's submissions
Counsel for Mr Taylor referred to McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 and Gillard v The Queen [2003] HCA 64; (2003) 219 CLR 1 in relation to 'the scope of the common purpose' and 'the common purpose test'.
Counsel also referred to the following observations of Templeman J in Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338:
(a)the task of the jury in the context of s 8 is 'to identify the common intention of the accused persons' [45] (original emphasis); and
(b)if the 'common purpose' of the accused persons was 'just to give [the victim] a belting and send him on his way' the accused persons 'who had that intention would be guilty of no more than manslaughter if, viewed objectively, death was a probable consequence of the prosecution of such purpose', but 'if one of the accused had an intention to kill, that would exceed the common intention and would result in that offender being convicted of wilful murder' [54] (original emphasis).
It was submitted that there was 'a real, and not remote,' possibility that, during the assault on Mr Batchelor, Mr Jones formed 'an intention to either kill or cause life‑endangering injury to Mr Batchelor that exceeded the intention of [Mr Taylor]'.
Counsel complained that the trial judge failed to direct the jury that Mr Taylor would not be guilty of murder if 'Mr Jones formed an intention that exceeded the common intention unless Mr Taylor shared that elevated intent'.
It was submitted that her Honour should have directed the jury that 'an accused must foresee the criminal act of the principal before the prosecution can prove extended common purpose'. Counsel cited R v Bosworth [2007] SASC 150; (2007) 97 SASR 502 in support of that proposition.
Mr Taylor's appeal against conviction: ground 2: its merits
Criminal liability under s 8 of the Code is different from and less extensive than criminal liability under the doctrine of 'joint criminal enterprise' or common purpose at common law.
In Miller v The Queen [2016] HCA 30; (2016) 90 ALJR 918, French CJ, Kiefel, Bell, Nettle & Gordon JJ summarised the various components of the doctrine of 'joint criminal enterprise' or common purpose at common law:
The law, as stated in McAuliffe, is that a joint criminal enterprise comes into being when two or more persons agree to commit a crime. The existence of the agreement need not be express and may be an inference from the parties' conduct. If the crime that is the object of the enterprise is committed while the agreement remains on foot, all the parties to the agreement are equally guilty, regardless of the part that each has played in the conduct that constitutes the actus reus (McAuliffe v The Queen (1995) 183 CLR 108 at 114 per Brennan CJ, Deane, Dawson, Toohey and Gummow JJ; Johns v The Queen (1980) 143 CLR 108; [1980] HCA 3; Macklin, Murphy and Others' Case (1838) 2 Lewin 225 [168 ER 1136] per Alderson B). Each party is also guilty of any other crime ('the incidental crime') committed by a co-venturer that is within the scope of the agreement ('joint criminal enterprise' liability). An incidental crime is within the scope of the agreement if the parties contemplate its commission as a possible incident of the execution of their agreement. Moreover, a party to a joint criminal enterprise who foresees, but does not agree to, the commission of the incidental crime in the course of carrying out the agreement and who, with that awareness, continues to participate in the enterprise is liable for the incidental offence ('extended joint criminal enterprise' liability) [4].
By contrast, s 8 creates criminal liability for offences that were not part of any original agreement or plan, but the commission of the offences was a probable consequence (that is, an objective probable consequence) of the prosecution of an unlawful purpose which two or more persons formed a common intention to prosecute in conjunction with one another.
As Kiefel J noted in Keenan:
(a)unlike the common law test (which depends upon the foresight of the parties to the common purpose), the test in s 8 is objective [102]; and
(b)the test in s 8 is as to the probable consequences of the common plan, not what the parties might have foreseen [124].
The decisions of the High Court in McAuliffe, Gillard and Miller concerned appeals from non‑Code States. Similarly, the decision of the Court of Criminal Appeal of South Australia in Bosworth concerned the common law.
Counsel for Mr Taylor's reliance on McAuliffe, Gillard and Bosworth is therefore misplaced.
In my opinion, the trial judge gave appropriate and satisfactory directions in relation to the possible application of s 8 to the facts of the case. In particular:
(a)her Honour identified for the jury the unlawful purpose alleged by the State; that is, that Mr Taylor and Mr Jones had agreed that they would carry out the unlawful purpose of using violence, with weapons, against the persons who were inside the toilet cubicle (ts 1178); and
(b)her Honour instructed the jury that it was sufficient if the alleged common intention to prosecute that unlawful purpose was formed at any time prior to the commission of the offence in question (even if only immediately before its commission) (ts 1178).
Further, in my opinion, it would have been readily apparent to the jury from question 5 in her Honour's 'question trail' document that if the State failed to prove that Mr Taylor and Mr Jones had formed a common intention to use violence, with a weapon, on the occupants of the toilet cubicle, the jury's verdict would be not guilty of murder and they should proceed to question 10, which dealt with unlawful killing.
Questions 6 and 7 of the 'question trail' document concerned the issues the jury would have to deal with if they found that Mr Taylor and Mr Jones had formed a common intention to prosecute the alleged unlawful purpose.
I am satisfied that the jury would have understood that it was necessary for them to determine whether Mr Taylor and Mr Jones had formed a common intention to prosecute the alleged unlawful purpose and, if the State proved those matters, then to determine whether Mr Batchelor had been murdered during the carrying out of that unlawful purpose and, if so, then to determine whether the offence of murder was of such a nature that its commission was an objective probable consequence of the prosecution of the unlawful purpose.
There was no scope for the jury to misunderstand the trial judge's directions in relation to the State's alternative case under s 8. In particular, there was no scope for the jury to misunderstand their obligation to consider whether Mr Batchelor's murder was an objective probable consequence of the prosecution by Mr Taylor and Mr Jones of the alleged unlawful purpose pursuant to their alleged common intention.
In Bardsley, the appellant and two co‑accused were convicted, after a trial, of the wilful murder of a boy aged 14. The Crown's case was, in essence, that the three accused pursued the victim with a view, at least, to capturing him and 'bashing' him very badly; and that, once the victim had been captured, at least the male co‑accused Stapleton had assaulted the victim with the intention of causing his death, and the appellant and the other female co‑accused had aided Stapleton, either having that intention themselves or knowing that that was Stapleton's intention. In the alternative, a question arose as to the operation of s 8 of the Code, but that was not the primary focus of the Crown's case [123].
The appellant in Bardsley contended that the trial judge inadequately directed the jury in relation to s 7 and s 8 of the Code. The appellant also contended that the trial judge had inadequately directed the jury in relation to the facts.
In the Court of Criminal Appeal, a majority (Templeman J and Wallwork AJ; Wheeler J dissenting) allowed the appeal, set aside the conviction and ordered a new trial. The majority held that the trial judge's directions to the jury, as to how the law might be applied to the facts, were inadequate. The majority also held that his Honour failed to engage in a judicial review of the facts.
Wallwork AJ found it unnecessary to consider the ground of appeal relating to s 8 of the Code. Templeman J considered that ground and rejected it. Wheeler J held that the trial judge adequately directed the jury, or unduly advantaged the appellant, in relation to s 8.
In the present case, Mr Taylor (and Mr Jones) denied any involvement in Mr Batchelor's murder. By contrast, the appellant in Bardsley accepted that she was guilty of deprivation of liberty, and admitted that she had asked Stapleton to run down the victim prior to his capture. She conceded that she had wanted to catch the victim and, probably, strike him, but denied she had in mind that the victim would be beaten in a way that would endanger his life. The appellant in Bardsley contended that the death of the victim had not been a planned event, in the sense of a premeditated murder, and that the plan had been to catch the victim and teach him a lesson, but not in circumstances where it was probable that he would be killed. She claimed, in effect, that Stapleton had 'lost it' and had killed the victim when he was alone and, consequently, she was not guilty of wilful murder [191] ‑ [194], [198] ‑ [199].
The critical questions for the jury in Bardsley concerned intention and purpose. In the present case, although intention and purpose were important issues in relation to s 8, neither Mr Taylor nor Mr Jones gave any relevant evidence about intention or purpose. By contrast, the appellant in Bardsley claimed she had an intention and a purpose (namely, to 'get' the victim and teach him a lesson) which, she contended, did not make it probable that the victim would be killed. In the present case, consistently with Mr Taylor's and Mr Jones' cases that they had no involvement in Mr Batchelor's killing, no alternate or lesser common intention or unlawful purpose than those alleged by the State was suggested by either Mr Taylor or Mr Jones. In the circumstances, the trial judge was not bound to direct the jury in relation to common intention or unlawful purpose other than in the manner she did.
The trial judge referred to a joint victim impact statement she had received from Mr Batchelor's father, mother and sister. Each of them has suffered significant trauma as a result of his violent death. In particular, his mother has suffered severe health problems [30] ‑ [32].
Mr Jones was born on 23 January 1978. At the time of sentencing, he was aged 37. He has a partner and two children aged 10 and 14.
Mr Jones had a deprived childhood. It was marked by violence. At an early age he left home and, for a time, lived on the streets. However, after becoming an adult Mr Jones reconnected with his father and they now have a good relationship.
Mr Jones completed schooling to year 10 while he was in juvenile detention. Upon release, he completed formal training as a boilermaker welder. He worked in this trade until about a month before his arrest on the offence in question. He had ceased employment because he intended to enter a residential facility for the treatment of an alcohol abuse problem.
Mr Jones commenced using amphetamines at the age of 13 and heroin at the age of 17. He was a heroin addict for a long time. About three years before he was sentenced, Mr Jones commenced methadone treatment.
Mr Jones has an extensive prior criminal record. He has previously been imprisoned. In 2002, he was sentenced to 5 years 6 months' imprisonment for the sexual penetration of a child under the age of 16. After his release from prison he committed many traffic offences. In 2008, Mr Jones was sentenced to a significant term of imprisonment for stealing, assault occasioning bodily harm and aggravated burglary.
Her Honour noted that personal deterrence was a relevant sentencing consideration.
Mr Jones continued to deny his involvement in the murder of Mr Batchelor. He had not shown any remorse.
The trial judge was satisfied that Mr Taylor and Mr Jones were motivated in their offending by prejudice and hostility towards the homosexual men at the reserve [52].
Her Honour concluded that the offending was at 'the high end of the range of seriousness of murders involving an intention to cause a life endangering injury'. Her Honour rejected a submission made on behalf of Mr Jones that he was 'to some extent provoked by the behaviour of the men at the reserve'. She found that neither Mr Batchelor nor Mr Y had done anything to provoke an assault on them [57].
The trial judge said that general deterrence was a relevant sentencing factor. It was important for people to know that 'a significant penalty would be imposed if they used violence in an attempt to stop behaviour of which they do not approve or to punish those who are doing it, rather than reporting the behaviour to the proper authorities' [58].
Mr Jones' appeal against sentence: its merits
A ground of appeal which alleges that a sentence (including a minimum term) is manifestly excessive asserts the existence of an implied or inferred error.
It is necessary, in determining whether a minimum term is manifestly excessive, to examine it from the perspective of the principles applicable to the fixing of the length of a non-parole period and the factors which a sentencing judge must take into account when fixing a minimum term. Relevant factors include the maximum penalty for the offence, any upper or lower limits on the available minimum term, the standards of sentencing customarily observed with respect to minimum terms for that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal antecedents of the offender.
A non-parole period is the minimum period of imprisonment that justice requires the offender to serve. It mitigates the offender's punishment in favour of rehabilitation through conditional freedom after imprisonment for the minimum period. See Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 628 ‑ 629 (Barwick CJ, Menzies, Stephen & Mason JJ); Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367, 367 (Gibbs CJ, Murphy, Wilson, Brennan & Dawson JJ); Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 530 ‑ 531 (Mason CJ & McHugh J), 536 (Dawson, Toohey & Gaudron JJ).
In Pedersen v The State of Western Australia [2010] WASCA 175, I made a number of observations (McLure P & Mazza J agreeing) about the determination of the minimum non-parole period where an offender is to be sentenced to life imprisonment for the offence of murder, and the sentencing court has decided (as in the present case) to proceed under s 90(1)(a) of the Sentencing Act and fix a minimum period. It is unnecessary to repeat those observations.
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a non-parole period is within the range of other non-parole periods imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a non-parole period is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether a sentence (including a minimum term) is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
I have reviewed numerous cases in which this court has heard and determined appeals against sentence for murder since the commencement of the Criminal Law Amendment (Homicide) Act 2008 (WA). I have taken into account the sentencing dispositions in Atherden v The State of Western Australia [2010] WASCA 33; Butler v The State of Western Australia [2010] WASCA 104; Austic v The State of Western Australia [2010] WASCA 110; Pedersen; The State of Western Australia v O'Kane [2011] WASCA 24; The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285; Cockram v The State of Western Australia [2011] WASCA 179; Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91; Johnston v The State of Western Australia [2012] WASCA 18; Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328; Khan v The State of Western Australia [2013] WASCA 193; The State of Western Australia v Lee [2013] WASCA 246; Silva v The State of Western Australia [2013] WASCA 278; Prestidge v The State of Western Australia [2014] WASCA 16; Rosewood v The State of Western Australia [2014] WASCA 21; Stinson v The State of Western Australia [2014] WASCA 72; Mack v The State of Western Australia [2014] WASCA 207; Angliss v The State of Western Australia [2015] WASCA 8; The State of Western Australia v Smith [2015] WASCA 87; Zwerus v The State of Western Australia [2015] WASCA 174; The State of Western Australia v Churchill [2015] WASCA 257; Crossland v The State of Western Australia [2016] WASCA 93; and Corbett v The State of Western Australia [2016] WASCA 97. It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.
In my opinion, there is no doubt that the murder committed by Mr Jones was a serious example of offending of that kind. The trial judge was correct in concluding that the offending was at the high end of the range of seriousness of murders involving an intention to cause a life endangering injury.
There was little to mitigate the seriousness of Mr Jones' offence. He did not have the mitigation that a plea of guilty would have brought. He continued to deny that he was involved in the murder. He therefore did not evince any remorse or victim empathy. Her Honour acknowledged that Mr Jones had made some admissions which narrowed the issues at the trial. She gave him credit for those admissions. Mr Jones did not have the mitigation of youth. His prior criminal record, and any failure of previous sentences to achieve the purpose for which they were imposed, did not, of course, aggravate the current offending, but his record demonstrated that he was not of prior good character.
I am satisfied that the objective seriousness of Mr Jones' offending, and the important sentencing considerations of appropriate punishment and personal and general deterrence, precluded the imposition of a lesser minimum non‑parole period.
In my opinion, after taking into account and evaluating all relevant facts and circumstances (including the trial judge's unchallenged findings of fact), and all relevant principles relating to the imposition of a minimum non‑parole period and the factors (including the reasonably comparable cases) which a sentencing judge must take into account when fixing a minimum non‑parole period, the minimum term of 21 years was within the range open to her Honour on a proper exercise of her discretion. The length of the minimum non‑parole period was not unreasonable or plainly unjust. In all the circumstances, the interests of justice did not require the imposition of a lesser minimum non‑parole period. Error in the exercise of her Honour's discretion should not be inferred from the sentencing outcome.
The ground of appeal is without merit.
Mr Jones' appeal against sentence: the outcome of the appeal and the appropriate orders
I would refuse leave to appeal. Mr Jones' appeal against sentence should be dismissed.
MAZZA JA: I have had the advantage of reading in draft the reasons for decision of Buss P and Mitchell JA. In my opinion, each of Mr Taylor's and Mr Jones' appeals must be dismissed. I agree with the orders proposed by Buss P. Save for what follows, I agree with Buss P's reasons.
My point of difference with Buss P is in respect of Mr Taylor's ground 1 and Mr Jones' ground 5 in their appeals against conviction, the latter ground being, in substance, a mirror of the former. I would uphold these grounds. However, I would apply the proviso in s 30(4) of the Criminal Appeals Act2004 (WA) in each case.
The grounds concern the adequacy of her Honour's directions with respect to s 7(b) and s 7(c) of the Criminal Code (WA). All of the necessary background is set out in Buss P's reasons.
It is well established that liability under s 7(b) and s 7(c) of the Criminal Code requires the State to prove beyond reasonable doubt four matters, being:
1.that a person or persons (the principal) has committed the offence;
2.the aider had actual knowledge of the facts amounting to the offence committed by the principal;
3.the aider did or omitted to do something with the intention of aiding or assisting in the doing of the acts which make up the offence (the requirement of intention); and
4.what the aider did or omitted to do actually aided or assisted the commission of the offence.
See Ritchie v The State of Western Australia [2016] WASCA 134 [84] (McLure P; Buss JA relevantly generally agreeing & Mazza JA relevantly agreeing).
In the present case, her Honour explicitly directed the jury with respect to the first, second and fourth matters, but not the requirement of intention. The absence of an explicit direction may not require the conclusion that the grounds must be upheld. This is because it may be
that her Honour's various directions on aiding when read as a whole could be understood as amounting to an adequate direction on the subject. The relevant directions are those identified by Buss P in his reasons. His Honour has concluded that the directions were, in combination, adequate to convey to the jury the requirement of intention.
I have respectfully come to a different conclusion. I have done so having regard to the combination of three factors. First, while I acknowledge that some of what her Honour said in her summing up may be construed as an instruction to the jury as to the requirement of intention, I do not consider the directions, when read as a whole, to have been sufficiently clear to convey the need for the jury to be satisfied that the State established beyond reasonable doubt the requirement of intention. Second, the directions given by her Honour (including the examples she gave to the jury) were similar in their terms and effect to those she gave in Ritchie which this court found to be inadequate in the circumstances of that case. Third, the question trail makes no reference, either directly or indirectly, to the requirement of intention.
Although I would uphold ground 1 of Mr Taylor's appeal against conviction and ground 5 of Mr Jones' appeal against conviction, I am satisfied, for the reasons given by Buss P, that neither appellant has suffered a substantial miscarriage of justice.
MITCHELL JA: I agree that these appeals should be dismissed, generally for the reasons which Buss P has explained. I agree with the orders which Buss P proposes. I will make some additional observations in relation to grounds attacking the trial judge's direction in relation to the intention of an aider, and Mr Jones' ground relating to the conduct of his trial counsel.
Taylor's conviction ground 1 and Jones' conviction ground 5
Mr Taylor's ground of appeal
Mr Taylor contends that the trial judge's failure 'to adequately direct the jury's attention to the intent of the aider rather than the knowledge of the intention of the principal' gave rise to a miscarriage of justice. He contends that the trial judge should have directed the jury that they needed to be satisfied beyond reasonable doubt that, when Mr Taylor did the act or acts which assisted Mr Jones, he intended that the act or acts would assist Mr Taylor (appeal ts 36).
Aiding and unwitting assistance
Section 7(c) of the Criminal Code makes every person who aids another person in committing an offence guilty of the offence. Aiding for this purpose requires intentional participation by conduct which actually assists the commission of an offence. The conduct must be aimed at assisting something which goes to make up the facts which constitute the commission of the relevant offence. A person cannot be an aider through an act which unwittingly assists the principal offender.[1]
[1] L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545 [37]; Ritchie v The State of Western Australia [2016] WASCA 134 [84] and cases there cited.
A person may unwittingly assist an offender by doing an act which assists the offender (such as driving the offender to a bank) without knowing that the offender is going to commit an offence (such as robbing the bank). A person may also unwittingly assist an offender who the person knows is committing an offence by doing an act which provides actual assistance to the offender without intending that the act have that effect (such as leaving a door unlocked in a way that inadvertently facilitates ingress or egress by the offender). In neither case will the person be criminally responsible under s 7(c) of the Criminal Code.
The State's aiding case
In the present case, the State relied on s 7(c) as one aspect of its case against Mr Taylor. The State advanced this aspect of its case against the contingency that the jury were not satisfied that Mr Taylor, acting with the relevant intention, did one or more of the acts which caused the death of the deceased.[2] The State contended that Mr Taylor at least aided Mr Jones to kill the deceased with the relevant intention. The prosecutor's opening and closing submissions indicated that the aiding included Mr Taylor kicking in the toilet door so that Mr Jones could attack the men in the toilet cubicle. The aiding which the State alleged also included disabling the deceased by knocking him to the ground to prevent resistance by the deceased to the violence which was to follow (ts 172 ‑ 173, 1066).
Mr Taylor's case
[2] If the jury were so satisfied, Mr Taylor would have been liable under s 7(a) of the Criminal Code: L [32].
Mr Taylor admitted kicking in the toilet door (ts 883), but denied that he knew that Mr Jones was present and contended that he did so to tell the men inside to stop scaring his children. In evidence, he denied assaulting the deceased at all.
The trial judge's direction
The relevant parts of the trial judge's direction to the jury are set out in Buss P's reasons at [60] ‑ [64]. The trial judge explained the requirements for one of the appellants to be found guilty of murder as an aider. To convict Mr Taylor as an aider, the direction required the jury to be satisfied that Mr Taylor:
1.gave actual assistance, ie he did an act which assisted the assault of the deceased;
2.acted knowing that the person who actually inflicted the fatal injuries was going to assault the deceased; and
3.knew that that person intended to kill or cause a life‑endangering injury by assaulting the deceased.
The question trail document provided to the jury included the following questions:
1.Has the State proven that Mr Taylor provided actual assistance to another to kill the deceased?
2.Has the State proven that the death was unlawful?
3.Has the State proven that, if Mr Taylor provided actual assistance, he did so knowing the person he assisted intended to cause the deceased's death?
4.Has the State proven that, if Mr Taylor provided actual assistance, he did so knowing the person he assisted intended to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the deceased's life?
To find Mr Taylor guilty as an aider, the jury were required to answer 'yes' to both of questions 1 and 2, and either of questions 3 or 4.
The trial judge's directions made it clear that Mr Taylor could not be liable for unwittingly aiding an offence which he did not know was being committed. However, the trial judge did not expressly state that Mr Taylor would not be liable as an aider if, being aware that an offence was being committed, he did an act that actually assisted the principal offender to commit the offence without intending to do so.
Disposition of ground
In some circumstances, a miscarriage of justice may arise from a failure to direct that a person does not aid the commission of an offence of which he or she is aware without intentionally providing actual assistance. The Queensland Court of Appeal's decision in R v Roberts[3] illustrates this proposition. In that case, one basis on which Pearce might have been found guilty of murder was that he aided Roberts by assaulting the victim. Pearce had given an explanation that, while his assaulting the victim may have aided Roberts, he did not act for that purpose. Rather, Pearce said that he assaulted the victim to prevent him from running outside where he could be observed covered in blood. The jury may have been required to determine the intention with which Pearce assaulted the victim.[4] In those circumstances, a miscarriage of justice arose from the failure to direct the jury that Pearce's acts must be done with the intention that they would assist Roberts.
[3] R v Roberts [2012] QCA 82.
[4] Roberts [169].
The facts in Roberts were materially different to those of the present case. Neither evidence adduced by the State nor that relied on by Mr Taylor suggested that he might have unwittingly assisted the commission of an offence of which he was aware. Mr Taylor's evidence was that he never assaulted the deceased. Mr Taylor's case was that he kicked open the toilet door, when he was unaware of Mr Jones' presence, for the purpose of remonstrating with the men in the cubicle. The only evidence suggesting that Mr Taylor unwittingly assisted Mr Jones to murder the deceased was Mr Taylor's evidence that he was unaware of the offence which Mr Jones intended to commit.
The directions did not allow the jury to convict Mr Taylor as an aider without first being satisfied that he provided actual assistance knowing that Mr Jones intended to kill or inflict a life-threatening injury[5] upon the deceased. Once the jury was satisfied beyond reasonable doubt of those facts, the evidence did not provide any other basis for apprehending that Mr Taylor may have unwittingly assisted Mr Jones to murder the deceased. The evidence did not plausibly suggest that Mr Taylor kicked in the toilet door or assaulted the deceased, while knowing Mr Jones was present with the relevant intent, without intending to assist Mr Jones in what he was about to do.
[5] For economy of expression, I shall refer to 'a bodily injury of such a nature as to endanger, or be likely to endanger, the life of a person' (the language of s 279(1)(b) of the Criminal Code) as a 'life-threatening injury'.
The State's case was that Mr Taylor and Mr Jones were acting together. Mr Taylor's case was premised on his ignorance of the offence which Mr Jones was going to commit. The critical issue for the jury to determine in relation to aiding was whether they were satisfied that Mr Taylor acted together with Mr Jones, rather than for his own purposes in ignorance of Mr Jones' intention to kill or inflict life-threatening injury on the deceased.
In the particular circumstances of this case, the trial judge's direction identified the only real contentious issue of fact raised by the evidence. That issue was whether Mr Taylor knew that Mr Jones was going to kill or inflict life-threatening injury on the deceased when he did the acts alleged by the State which actually assisted Mr Jones to do so.
The trial judge's direction must be considered as a whole with the jury aid and in light of the submissions and evidence advanced at trial. Read in that context, the direction did not suggest that the jury might convict Mr Taylor as an aider on the basis that he unwittingly assisted in the murder of the deceased. Rather, the direction made it clear to the jury that, to be found guilty of murder as an aider, Mr Taylor must have purposefully rather than unwittingly provided assistance. Once the jury found Mr Taylor knew of Mr Jones' intention to kill or inflict life‑threatening injury upon the deceased when providing actual assistance (for example by kicking in the door or assaulting the deceased) it was clear that the assistance must have been intentionally provided. The direction focused the jury's attention on the only way in which the evidence in this particular case suggested that Mr Taylor may have unwittingly aided Mr Jones to murder the deceased.
Counsel appearing at trial, including very competent and experienced criminal barristers, did not take any issue with the trial judge's directions on aiding. I infer that they did not do so because, in the context of the evidence, submissions and atmosphere of the trial as a whole, the direction was effective to convey to the jury the need for the State to prove that Mr Taylor aided purposefully rather than unwittingly.
In Ritchie, this court held that a miscarriage of justice was occasioned by a failure to adequately instruct the jury as to the need to be satisfied that the acts which allegedly aided the principal offender were done with the intention of doing so. The direction in Ritchie, given by the same trial judge as the present case, was in very similar terms to aspects of the direction in the present case. However, Ritchie did not hold that that a direction with those elements would give rise to a miscarriage of justice in every case, irrespective of the evidence and the particular factual issues in contention.
In the particular circumstances of this case, no miscarriage of justice arose from the failure to direct that Mr Taylor must have intended to assist Mr Jones in the commission of an offence of which Mr Taylor was aware in order to be found guilty of murder as an aider. Read as a whole, and understood in the context of this trial, the direction conveyed to the jury that the actual assistance which Mr Taylor provided must be purposeful rather than unwitting before he could be found guilty of murder as an aider. It identified the critical issues of fact which the jury were required to consider.
For these reasons, I would dismiss ground 1 of Mr Taylor's appeal.
Mr Jones' appeal
The above reasoning also applies to ground 5 of Mr Jones' appeal, which asserts the same error. As Mr Jones' case at trial was that he was not present at the relevant time, there was even less scope for the evidence admissible against him to suggest that he unwittingly acted in a way that actually assisted a murder which he knew was being committed. The State's case was that Mr Jones aided by guarding the entrance to the toilet cubicle and assaulting the deceased with a pole. If the jury were satisfied that he deliberately did those things while knowing that Mr Taylor intended to kill or inflict a life-threatening injury on the deceased, the conclusion that he did those acts with the intention of providing assistance necessarily followed. I would dismiss ground 5 of Mr Jones' appeal.
Jones' conviction ground 4
Mr Jones contends that a miscarriage of justice was occasioned by his trial counsel's cross examination of Ms Bentley. He does not contend that the conduct of trial counsel deprived him of a fair trial according to law. Rather, he contends that the cross‑examination was a 'material irregularity in the trial', which possibly affected the outcome.[6]
[6] Paragraph 33 of Mr Jones' written submissions.
Ms Bentley gave evidence which identified Mr Jones as the person who was at the toilet block with Mr Taylor. Mr Jones points to his denial to police of having gone to the toilet block and his trial counsel's opening, which was to the effect that Mr Jones had no part in the assault on the deceased and was not present when it occurred (ts 186 ‑ 188). He submits that the reliability of Ms Bentley's recognition of him as the person she saw walking away with Mr Taylor was of critical importance at his trial.
In her evidence‑in‑chief, Ms Bentley said that, when standing in front of the toilet block, she heard Mr Taylor say to someone 'are you right mate?' or 'are you right mate? Let's go' (ts 383).
In that context, Mr Jones (whose first name is Daniel) contends that a miscarriage of justice arose from the following passage of cross‑examination of Ms Bentley by his trial counsel:
Now, shortly before the trial, on 12 March, did you have a sit‑down with the prosecution and go through your statement and correct part of your statement by saying that as far as you could remember, Taylor said, 'That's enough, Dan. Let's go. Are you right?'---Yes.
Now today in evidence, which is only a few days since then, you have told the court that all you said was, 'He said, "Are you right?"'?---I remember a few things back then that I blocked out from what happened to that guy.
Okay. But my question to you today is did he say, 'That's enough, Dan'?---He said, 'Are you right, mate? That's enough, Dan.'
'Are you right, mate?' But in actual fact, you never heard the word 'Dan', did you?---Yes, I did.
So why didn't you tell us when you gave evidence that you heard the word 'Dan'?---Because I forgot. I was shaken at the time of the incident and I - just a lot of stuff that I remember now, like specially what happened that night (ts 401).
Mr Jones contends that this cross-examination constituted a material irregularity in the trial. He submits that it cannot be explained on an objective analysis as the result of a rational forensic decision or having been pursued for a forensic advantage. Alternatively, he submits that any forensic advantage was slight in comparison with the obvious disadvantages of adducing evidence that Mr Taylor used Mr Jones' first name when speaking with the person in the toilet block.
For reasons which Buss P explains, there was an objectively reasonable explanation for trial counsel's attempt to attack Ms Bentley's credibility in this way. Once that conclusion is reached, in the circumstances of this case it cannot be said that there was a material irregularity in the trial or that a miscarriage of justice arose from that legitimate forensic choice.
Further, in my view, the ground must fail even if the decision to undertake this line of cross-examination could not be objectively regarded as a rational forensic choice by defence counsel. That is so for the following reasons.
The cases to which Buss P refers establish that it will be difficult to establish a miscarriage of justice arising from a material irregularity in a trial where the alleged error of counsel is explicable on the basis that it did or could have led to a forensic advantage.[7] However, concepts of miscarriage of justice and material irregularity are not to be equated with forensic disadvantage or incompetence of counsel. The focus of inquiry is on the consequences of the alleged incompetence, and the extent to which it caused or contributed to a miscarriage of justice, rather than upon the cause or nature of the incompetence.[8] The fact that counsel's conduct may be explicable on the basis of forensic advantage does not necessarily preclude a court from holding that, nevertheless, there was a miscarriage of justice.[9]
[7] See, in particular, TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [16] ‑ [17], [26], [32] ‑ [33], [81] ‑ [82]; McMahon v The State of Western Australia [2010] WASCA 143 [27].
[8] KLM v The State of Western Australia [2009] WASCA 73; (2009) 194 A Crim R 503 [50] and cases there cited.
[9] TKWJ [28], [84]; McMahon [27].
In my view, the converse is also true. A miscarriage of justice is not established by the mere fact that counsel adopts a course which could not rationally be expected to produce a forensic advantage and which proves to be disadvantageous to an accused. The existence of possible forensic advantage may lead a court to conclude that there was no material irregularity or miscarriage of justice. However, the absence of possible forensic advantage does not itself establish a miscarriage of justice, or suffice to support the conclusion that there has been a material irregularity in the trial.
In the present case, the questions asked of Ms Bentley adduced evidence which was both relevant and admissible in the trial. There was nothing irregular about its reception. This was not a case, where a miscarriage of justice may arise in some circumstances,[10] of trial counsel consenting or failing to object to the reception of inadmissible evidence prejudicial to an accused. Nor is this case concerned with whether a failure by defence counsel to adduce admissible evidence can give rise to a miscarriage of justice.[11] I am not convinced that reception of relevant admissible evidence constitutes a material irregularity in a trial merely because the evidence was given in response to questions posed by defence counsel, even if there was no possible forensic advantage in asking those questions.
[10] See Steve v The Queen [2008] NSWCCA 231; (2008) 189 A Crim R 68 and Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662.
[11] This was the kind of miscarriage alleged in TKWJ.
None of the cases to which we were referred concerning miscarriages of justice arising from incompetence of counsel involved the reception of admissible evidence elicited by counsel pursuing an unwise line of cross-examination. Nor have I been able to locate any cases where asking questions which elicit relevant admissible evidence has been sufficient to constitute a miscarriage of justice on the basis that the answers given were not favourable to the accused's case.
As Gleeson CJ noted in Nudd v The Queen,[12] it is the fairness of the process that is in question; not the wisdom of counsel. The reception of relevant and admissible evidence does not ordinarily result in an unfair trial, deprive the accused of a chance of acquittal fairly[13] open to him or her or give rise to some other miscarriage of justice. That conclusion does not change merely because the evidence was elicited by questions unwisely posed by defence counsel.
[12] Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 [9].
[13] See TKWJ [26]; Ali [99].
Even if it were established that there was no possible forensic advantage in asking the questions quoted above, there was no material irregularity in the trial of Mr Jones giving rise to a miscarriage of justice. All that occurred was that the court received admissible evidence relevant to the issues the jury were required to determine. Mr Jones contends that the evidence which counsel's questions sought to elicit did not and could not have assisted his case. Acceptance of that contention would not demand a conclusion that the reception of that relevant and admissible evidence constituted a material irregularity in the trial or otherwise gave rise to a miscarriage of justice.
For these reasons, as well as those explained by Buss P, ground 4 of Mr Jones' appeal against conviction must be dismissed.
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