Tran v The Queen (No 1)
[2012] VSCA 283
•23 November 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0109
| PHILLIP TRAN | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES | WEINBERG and BONGIORNO JJA and T FORREST AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 26 and 27 July 2012 |
| DATE OF JUDGMENT | 23 November 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 283 |
| CASE MAY BE CITED AS | Tran v The Queen (No 1) |
| JUDGMENT APPEALED FROM | R v Tran [2011] VSC 181 (Hollingworth J) |
---
CRIMINAL LAW – Appeal against conviction – Murder – Deceased severely assaulted in abandoned building – Evidence established that appellant was present in building at time of assault – Appellant allegedly admitted to three witnesses that he and other unidentified persons had ‘bashed’ deceased – Whether manslaughter should have been left to jury – Whether jury verdict unsafe and unsatisfactory – Appeal allowed – Evidence not capable of establishing role played by appellant in assault – Evidence did not exclude possibility that appellant lacked mens rea for murder – Evidence established that appellant was party to unlawful and dangerous act which caused deceased’s death – Conviction for murder quashed and judgment of conviction of manslaughter entered pursuant to s 277(c) of Criminal Procedure Act 2009 – No point of principle.
---
| APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr D Dann | C Marshall & Associates |
| For the Crown | Mr P Kidd SC | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA:
BONGIORNO JA:
T FORREST AJA:
On 20 December 2008, Aaron Nidea, a 28-year-old man, was severely assaulted in an abandoned Telstra building in Napier Street, Footscray. His injuries, from which he later died, were consistent with his having been struck repeatedly on the head with a baseball bat.
The appellant was subsequently charged with Nidea’s murder and tried in the Trial Division of the Supreme Court. He was convicted and, on 6 May 2011, was sentenced to be imprisoned for 18 years. The trial judge directed that that sentence be served concurrently with a sentence he was already undergoing for unrelated offending. Her Honour fixed a new single non-parole period of 13 years. The appellant was granted leave to appeal against his conviction by Nettle JA on 14 September 2011 on the following grounds:
Ground 1The learned trial judge erred in not leaving manslaughter to the jury as a possible alternative verdict.
Ground 4 The verdict of the jury was unsafe and unsatisfactory.
Two other grounds argued on the leave application (Grounds 2 and 3) were rejected by his Honour and have not been pursued.
The Crown case
The Crown alleged that the deceased was a drug addict who, according to his former girlfriend, Cheren Goodchild, owed someone a substantial sum of money. The deceased knew the appellant and, on the day he was assaulted, had arranged, by telephone, to meet him in Footscray. The deceased borrowed his father’s car and drove to the Footscray Railway Station, which was close to the Telstra building. Telephone records established that between his leaving St Albans and arriving at Footscray his mobile phone and that of the appellant were in contact six times. In the preceding four days, there had been about 22 such contacts or attempted contacts. Closed circuit television at Footscray Railway Station showed the deceased’s father’s car entering the station car park shortly before 1.10pm. Two people left the car and walked away from the camera in the direction of the Telstra building.
According to the Crown case, three men, Luke Morgan, Robert Tasevski and Bruce Smith, entered the Telstra building shortly after the appellant and the deceased had done so. Morgan and Tasevski gave evidence that they saw the deceased swinging a baseball bat around, hitting objects that were strewn on the floor. The three men also provided evidence which was capable of establishing the appellant’s presence in the building. He was observed ‘mulling up’ heroin at or near an overturned water cooler. The three men said that they left some five to ten minutes later, after at least some of them had used heroin themselves. They said that the appellant and the deceased remained in the building, alone.
Shortly afterwards, the deceased was assaulted with a weapon which was never found. However, his injuries were consistent with their having been caused by a baseball bat. Robert Pocknee, who had been sitting in a nearby park with some friends, was told by an unidentified man that someone had been bashed in the Telstra building. He went into the building and discovered the deceased in one of the rooms, badly beaten, semi-conscious, lying face down and covered in blood. An ambulance arrived shortly before 2.00pm and the deceased was taken to hospital where he died two days later.
The Crown case also relied heavily on admissions which were said to have been made by the appellant to three different people, Mohamed Chakik, Danielle Hoskins and Joseph Janes.
As opened by the prosecutor at trial, the Crown case was that the appellant was involved in the attack as a result of which Nidea died, as a principal, either alone or in concert with a person or persons unknown; alternatively, he was acting as an aider and abettor of a person or persons unknown.
The defence case
The defence case was that it was the Crown witness, Tasevski, who had bashed the deceased to death and that another Crown witness, Smith, had assisted him. The appellant was not present at the Telstra building on the day in question.
Further, the defence submitted that even if the deceased owed the appellant money, this provided no motive for the appellant to have killed him. Had he done so, the appellant would have had no way of recovering his money. The Crown witnesses were said to be dishonest and unreliable.
The defence case was that Smith and Janes were friends who had colluded together to falsify evidence about an alleged confession on the part of the appellant to his involvement in the bashing of the deceased. That confession was said to have been made to Janes by the appellant at the Sunshine police cells on 11 January 2009, several weeks after the death of the deceased. According to Janes, he had been ‘playing up’ and had been sprayed with mace by the police. He claimed that he had gotten mace on his t-shirt and that the appellant had helped him out by providing him with one of his own. It was at that stage that the appellant told Janes about having been involved in the bashing of the deceased. According to the defence, Janes’ account of this so-called confession was totally fabricated. It was suggested to the jury that he and Smith had conspired together to fabricate the confession in order to clear Smith who happened, at about that time, to be under suspicion for involvement in the death of the deceased.
The defence further contended that the fact that it was Robert Tasevski who had bashed the deceased was implicit from the evidence of the Crown witness Morgan. The appellant did not give evidence.
The evidence
Joseph Janes
Joseph Janes gave evidence that the appellant, whom he knew as ‘Chooka’, said certain things to him whilst they were both in the Sunshine police cells on 11 January 2009. Initially, he said he could not remember the appellant making any admissions. However, after his police statement was read to him, he remembered the appellant’s having bragged about a bashing that he had ‘done with his whacks’ in Footscray. The bashing was over ‘the guy ripping off his cousin for drugs’. Janes said the appellant said ‘we bashed the cunt and ripped him off’. The appellant told him that they had hit the guy with a baseball bat.
In relation to the incident involving the mace and the t-shirt, Janes was played a CCTV recording of the cells at Sunshine. He identified himself and the man he knew as ‘Chooka’. It was conceded that this was the appellant. The recording showed the t‑shirt being given to Janes by the appellant. This supposedly provided support for Janes’ account.
Under cross-examination, Janes conceded that, contrary to what he had earlier said, he and the appellant had not shared the same cell. He conceded that he could not recall if the conversation with the appellant had taken place before or after he received the appellant’s t-shirt.
Janes said that, coincidentally, on 13 January 2009, two days after the incident at the Sunshine police cells, he had come into contact with Bruce Smith at the Melbourne Custody Centre. He said that, on that occasion, Smith told him that he was being quizzed by police over a murder in Footscray. He claimed that he told Smith about the appellant’s confession.
Janes conceded, in cross-examination, that he had prior convictions for offences involving dishonesty.
Mohamed Chakik
Mohamed Chakik, a childhood friend of the appellant, gave evidence about a conversation that he had with the appellant in early or mid January 2009 at the Deer Park Shopping Centre. Chakik’s girlfriend, Danielle Hoskins, was also present. He said that the appellant had told him that he had had a fight somewhere in Footscray with two other guys. Shown his statement to police, he said the appellant had told him that he and two Aussie blokes had bashed some guy with a baseball bat in Footscray. He said that the appellant did not say how long ago it had happened, but that the deceased owed him some money. Chakik agreed he was under the influence of drugs at the time and did not pay particular attention to what the appellant said.
Danielle Hoskins
Danielle Hoskins gave evidence about the same conversation with the appellant at the Deer Park Shopping Centre in January 2009. She said that the appellant had told her and Chakik that he had been in a fight at Footscray with two other people, and that they had bashed a boy with a weapon. She was ‘pretty sure’ the appellant had said the weapon used was a baseball bat. She said the appellant described the other people as ‘Aussie junkies’. She also agreed she was under the influence of drugs at the time and that she had not paid particular attention to what the appellant said.
Bruce Smith
Bruce Smith gave evidence that in December 2008 he was living in Footscray with his friend Robert Tasevski. They both regularly used heroin which they funded by dealing in that drug. On the day in question, he and Tasevski met up with a man named ‘Luke’. Whilst Luke was getting money from an ATM in Footscray, they ‘shot-up’ heroin in a nearby alley. When Luke returned, they went to the Telstra building.
Smith said there were two men inside the building. One was kneeling beside a pushed-over water fountain ‘mulling up’ heroin and the other was hitting rubbish on the floor with a baseball bat. He didn’t pay much attention to them but Tasevski shook hands with the man holding the baseball bat. That man was introduced to him as ‘AJ’. Smith said he walked off to see if anyone else was in the building. On returning to the room, ‘Luke’ was using heroin and Tasevski was talking to ’AJ’. Tasevski had a look at the baseball bat and swung it before handing it back. Smith then left with ‘Luke’ and Tasevski. He said he did not see anything untoward happening between Tasevski and the man he knew as ’AJ’. There was no scuffling and neither became aggressive.
Smith could not positively identify any of the men on a police photoboard as having been present in the Telstra building at the relevant time although he described the one ‘mulling up’ as ‘like an Islander — half islander’. He picked out the appellant as looking similar to, or resembling, the second man. In cross-examination, it was put to him that he had previously given a different version of events in a phone conversation he had had with another man, Daryl Rowarth. He denied that the conversation with Rowarth had ever taken place.
Smith said that because he had breached his parole, he was being held in the Melbourne Custody Centre with Joseph Janes. On telling Janes he was annoyed about being questioned by police regarding the murder, Janes told him that he had recently been in a cell with another prisoner who had been bragging about committing the murder. Janes told him that he had been sprayed with mace by police and that the other man had given him the t-shirt he was wearing. Smith said it reminded him of the t-shirt that he thought one of the men in the Telstra building was wearing.
Smith said that Rowarth had animosity towards Tasevski because Tasevski had slept with his (Rowarth’s) girlfriend and that Rowarth had asked him, Smith, to ‘set-up’ Tasevski for the murder. Under cross-examination, he agreed he had never mentioned to police, in his original statement, that Rowarth asked him to lie to implicate Tasevski.
Daryl Rowarth
Daryl Rowarth gave evidence about the phone call with Smith. He could not recall the date but said it was on the day of the assault because Smith told him there were ‘jacks’ (which he understood to be police) everywhere. He said Smith told him that ‘[Tasevski’s] just bashed somebody, some Gook in the Telstra building’. Under cross‑examination, he denied having animosity towards Tasevski or threatening him on account of Tasevski sleeping with his girlfriend. He admitted he had prior convictions for offences involving dishonesty.
Robert Tasevski
Robert Tasevski identified the appellant as one of the two men in the Telstra building at the relevant time. He said that, on the day in question, he, Smith and a man he knew only as ‘Luke’ went to Footscray Mall to purchase some heroin. This was the first time he had met ‘Luke’. They bought three ‘caps’ of heroin. He had used heroin that morning behind a gym in St Albans and then later in the Telstra building. He said Smith and ‘Luke’ had also used heroin there.
He said that when he entered the Telstra building he noticed two men he did not know. One was holding a baseball bat. He started to use heroin with Smith and ‘Luke’ and the man with the baseball bat turned around and asked him if he was ‘John’s brother’ to which he replied that he was. He was handed the baseball bat and had a swing at some syringe containers before returning it to the man. He did not see anyone else in the Telstra building. He said that he, together with Smith and ‘Luke’, left after around five minutes but that the other two men stayed behind. Under cross-examination, Tasevski denied that he had shaken the man with the baseball bat’s hand upon entering the building. He also denied that there was any scuffling between himself and this man, or that he assaulted him. He admitted he had prior convictions for offences which involved dishonesty.
Tasevski was taken to a phone recording of a telephone call with his brother’s partner where he said ‘that stupid fucking fight in Footscray with the baseball bat, that’s what fucked me’ and ‘yeah and I went in, I had my hit and next minute bang, then someone got hit’. In re-examination, he said that there was talk all around Footscray about the murder and that somebody was hit and that was why he had brought it up. He explained he had not made a statement about any of this to police because he had almost finished his parole and did not want any trouble.
Luke Morgan
Luke Morgan gave identification evidence implicating the appellant. He identified the appellant as having been one of the two men in the Telstra building at the relevant time. He said that on the day in question he met up with Smith and Tasevski (whom he knew at the time only as ‘Bruce’ and ‘Rob’) in Footscray. He bought two hits of heroin, one of which he bought from Smith and Tasevski. They then went to the Telstra building.
Upon entering the building, he noticed two men. One was holding a baseball bat and the other was standing to the side. The man with the baseball bat was hitting things on the floor. Morgan said that he did not say anything to them ― he was only concerned with preparing his heroin for use. He said Tasevski spoke to the man with the baseball bat and shook his hand. Tasevski then took the baseball bat from him and began hitting things on the ground, before returning it to him.
The man with the baseball bat then began to mix up some heroin on top of an overturned water cooler. Tasevski tried to pick up the bat again but the man stopped him. As things became heated, the two men told Tasevski to ‘settle down’. After Morgan finished using his heroin, he left the building with Smith and Tasevski.
Morgan agreed that in his statement he had told police Tasevski had started to smash things on the floor and that things then began to get out of hand. He agreed that that was the truth. He said that just after he had mixed up his drugs, three other ‘blokes’ — at least one of whom was ‘Australian’ — walked behind him towards a window and left the building. They did not say anything to him. He also said that when they first entered the building, Tasevski had shaken hands with one of the men already there. Morgan said that after they left the building he and his friends went to the Footscray Mall and shortly after saw an ambulance and police at the park near the Telstra building.
Under cross-examination, Morgan admitted to having been very upset and having rung his girlfriend, Gemma McCoy, before going to the police. He told her that he had been in a house in Footscray where someone had been killed, saying — ‘you don’t know what I’ve been through, someone got murdered’.
In his evidence, Morgan denied being present when the deceased was assaulted. It was put to Morgan that whilst police were at his mother’s house he had said to her ‘I can’t get the last blow out of my head’. At first, he said he could not remember having said that. However, he then remembered his mother telling police that he had, in fact, said that to her.
Morgan agreed that he said the following to Detective Sergeant Young and that it was the truth:
The second Asian was still in the room and so was Bruce. I left cause I was shit-scared and I heard a sound almost like the sound of wood hitting something hard. I looked back as I was leaving and I couldn’t see the second Asian, and I just kept hearing the sound of wood hitting something hard. I kept hearing this sound even after I climbed through the window of the building. I moved further away and could still hear the sound. When I say I kept hearing it, I say the sound of scuffling; the sound of wood hitting something hard, I heard three to four times before I got far enough away to not hear anything more.
Under cross-examination, Morgan did not agree that he saw Tasevski assault one of the men with the baseball bat. He described the ‘scuffling’ he could hear as he climbed out of the window as being like the sound he heard before they originally entered — the sound of wood hitting something hard. He agreed that he had not told the police everything in his first statement because he had been nervous.
Robert Pocknee
Robert Pocknee could not be located by police so his statement was read in Court. He was at a park opposite the Telstra building on the day in question with some of his mates. A man he described as ‘Aussie’ in appearance ran up to him and told him a man had been bashed in the Telstra building. Pocknee went to investigate and rang an ambulance. He found the deceased and waited with him until ambulance officers arrived.
Police evidence
Detective Sergeant Day and Detective Sergeant Young (the informant), gave evidence about a photoboard exercise carried out with Smith, Tasevski and Morgan.
Detective Sergeant Day also gave evidence about telephone records which indicated that the appellant and the deceased rang each other approximately 22 times between 16 and 20 December 2008. Additionally, there were five calls and one attempted call between 12.38pm and 1.02pm on 20 December 2008. There was no communication or attempted communication between the deceased and the appellant by telephone after the call at 1.02pm on 20 December 2008.
Detective Sergeant Young gave evidence that he went to the Melbourne Custody Centre on 14 January 2009 and spoke first to Bruce Smith and then to Joseph Janes. He said that Janes had the appellant’s t-shirt in his hand when he arrived and that he had handed it to him.
Pathologist
Professor Stephen Cordner gave expert evidence about the autopsy he performed on the deceased. He described the injuries to the deceased and said they were consistent with his having been struck with a baseball bat but could have been caused by a wide range of other blunt objects.
Ananias Nidea
Ananias Nidea, the deceased’s father, gave evidence about the deceased’s work and personal history. He said that the deceased had borrowed his car on the day of the offending, ostensibly to go out to buy Christmas gifts.
Cheren Goodchild
Cheren Goodchild, the deceased’s former girlfriend, gave evidence about having been in a 10-year relationship with him which ended in early 2007. His drug use was a contributing factor to the relationship ending. Ms Goodchild said that in late 2008 she was contacted by the deceased who told her that he was ‘in a little bit of trouble’ and owed some money. She thought he said he owed around $10,000 but he did not say to whom he owed the money, or why.
The appellant
The appellant did not give evidence but tendered a statement made by Gemma McCoy, Luke Morgan’s partner. She said that on 21 December 2008 she had a telephone conversation with Morgan in which he said something about seeing blood gushing from a person’s head. She had a further conversation with him the following day and he said something like ‘every time I close my eyes, I see the blood again. It’s like a nightmare, even though I’m still awake’.
This appeal
Ground 1 ― Manslaughter not left to the jury
The appellant, at trial, did not seek that an alternative verdict of manslaughter be left for the jury’s consideration. Both he and the prosecutor accepted a suggestion made by the trial judge that the only issue was whether the appellant killed the deceased.
In this Court, however, counsel for the appellant argued that, in the absence of evidence about the circumstances of his participation in the deceased’s death, the jury could properly have concluded that such participation was not accompanied by the mens rea necessary for murder. The appellant’s intention might have been merely to engage in an assault, either alone, or with another or others, or to have aided and abetted others to engage in such an assault without murderous intent.
The Crown countered the appellant’s contentions in this regard by pointing to the evidence of the pathologist, Professor Cordner, as to the extensive injuries suffered by the deceased which, it said, led to the inescapable inference that the attack had been prolonged and murderous. Professor Cordner found that:
the skull had been rendered into small pieces of bone on the right side of the head, and there was fracturing extending into all compartments of the skull on both sides. In addition, there was fracturing of the left maxilla, the left zygomatic arch or cheek bone, and the left orbit.
Whilst Professor Cordner’s opinion was that these injuries were consistent with having been caused by a baseball bat or other similar blunt instrument, no such object was recovered either from the scene or from the appellant.
The Crown argued that the nature of these injuries and the way they must have been inflicted (when combined with the admissions made by the appellant to the Crown witnesses Janes, Chakik and Hoskins) led to an inescapable inference that, whatever the appellant’s participation in the deceased’s death, he must have had the necessary murderous intent at all relevant times.
The central planks of the Crown case against the appellant were the admissions allegedly made by him to those three witnesses. Whilst there was ample evidence of contact between the appellant and the deceased in the period leading up to the assault on the deceased, evidence from which a jury could properly infer that they were in the Telstra building together and that there was also a baseball bat in that building, it was only from the admissions, and their terms, that any actual involvement of the appellant in the infliction of the deceased’s injuries could be positively proved.
The admissions relied upon by the Crown were allegedly made to three people, each of whom could be the subject of legitimate criticism. They were drug addicts and Janes had prior convictions for offences involving dishonesty. In the cases of Chakik and Hoskins, they both admitted to having been affected by drugs at the time the admissions were allegedly made. The admissions allegedly made to Janes were made in a custodial setting and in circumstances that rendered them suspect. Nevertheless, when examined, there is a consistency between the admissions which would have enabled the jury to accept that they were made and that, as far as they went, they were true.
In each of the admissions the appellant allegedly used the word ‘bashed’ or ‘bashing’ when describing what was done to the deceased. Moreover, a drug debt was referred to, as was the presence of an accomplice or accomplices. In the case of the admissions to Chakik and Hoskins, mention was allegedly made of a baseball bat, but only in the alleged admission to Janes was there any mention of the deceased’s death ― and then only that his death occurred as a result of his having been bashed. Specifically, there was no express or implied admission to any of those witnesses as to the appellant’s state of mind at the time of the bashing.
When taken at their highest from the Crown’s perspective, these admissions, if made, were capable of establishing that the appellant was criminally implicated, one way or another, in the death of the deceased. But they are not capable, in our view, of establishing whether the appellant used the baseball bat (or whatever implement was used), whether one of ‘his whacks’ used the baseball bat, whether if that was the case the assailant and the appellant were acting pursuant to an agreement between them to kill or inflict really serious injury upon the deceased, or whether the appellant was present, and aided and abetted the assault by the assailant. The highest to which these admissions can rise is to establish that the appellant was party to an assault on the deceased or to use his term ‘a bashing’. His alleged use of the words ‘we bashed’ cannot, of themselves, establish that the appellant personally wielded the implement that was used in the bashing.
Whilst the evidence of Professor Cordner would certainly have entitled a jury to infer that the person who struck the blows had a murderous intent, in the absence of any positive evidence that it was the appellant who was that person, the case against him does not establish all of the elements of murder. His admissions do not, of themselves or in combination with the other evidence before the jury,[1] exclude the possibility of someone else having carried out the actual bashing, and, in doing so, having gone beyond the scope of any agreement or understanding with the appellant. Nor do they exclude, in the context of the evidence in this case, a situation in which ‘the bashing’ occurred while the appellant was not physically present — at least for the time necessary to appreciate the severity of the attack on the deceased.
[1]In accordance with Hillier v The Queen (2007) 228 CLR 618, it is, of course, necessary for this Court, in carrying out its task of considering whether the verdict of guilty of murder should be allowed to stand, to have regard to the evidence in its entirety, and not to approach the matter in a piecemeal way.
The trial judge was unfortunately misled by the unanimity of counsel as to there being no alternative case of manslaughter open. In the particular circumstances of this case, manslaughter was an available verdict,[2] and should have been left to the jury. It follows that this ground must be upheld.
[2]Gammage v The Queen (1969) 122 CLR 444; Pemble v The Queen (1971) 124 CLR 107.
But that is not the end of the matter. The conclusion reached as to a verdict of manslaughter having been open, and the route by which we have reached that conclusion,[3] necessarily involves the corollary, on the facts of this particular case, that there was no case upon which the jury could properly find a verdict of murder. We shall deal with this matter next when we deal with Ground 4.
[3]Namely, that the Crown had not excluded the reasonable possibility that the appellant, for example, aided and abetted the bashing of the deceased, but without himself having had murderous intent: see generally Smith, Garcia and Andreevski v The Queen [2012] VSCA 5.
Ground 4 ― Unsafe and unsatisfactory
The only other ground upon which the appellant was granted leave to appeal was that the verdict was unsafe and unsatisfactory. However, that ground was argued before this Court on a somewhat narrow basis. It was submitted that the Crown, by its submission to the jury that any case of complicity, whether through acting in concert or by aiding and abetting, did not involve criminal conduct on the part of Morgan, Tasevski or Smith, had necessarily left the jury to speculate, without any proper evidential foundation, as to who those complicit with the appellant might have been. Accordingly, so it was submitted, the jury may have convicted the appellant without any proper basis upon which to support a finding of guilt. Thus, the argument was that the verdict was unsafe and unsatisfactory.
In his opening address to the jury, the prosecutor referred to the elements of the crime of murder and, in dealing with the requirement that the Crown must prove that the appellant caused the death of the deceased, said:
The Crown proves the first element, that is that the accused caused the death of the deceased if it proves beyond reasonable doubt that the acts were either done by the accused himself, or by some other person in his company acting in concert with him. It doesn’t have to prove, you understand, it’s common sense I think really, when you think about it, if three men go to kill someone but only one of them is the one who actually wields the weapon and does the killing, they’re all equally guilty of murder because there’s an agreement between them. They’re said to be acting in concert or aiding and abetting one another or complicit in the same crime.
It is apparent, therefore, that the Crown case was opened on the basis that the acts which killed the deceased were performed either by the appellant himself, by someone else acting in concert with him, or by someone aided and abetted by him.
Upon the prosecutor opening the case in this way, defence counsel (who did not appear in this Court) complained that, in referring to the appellant having possibly acted in concert with another, or others, or having aided and abetted another, or others, the prosecutor had entirely departed from the summary of the prosecution opening that, in accordance with s 182 of the Criminal Procedure Act 2009 had been served upon the appellant some months earlier. That summary had made no mention, whatsoever, of any case against the appellant other than that he had himself inflicted the injuries from which the deceased died. It contained no reference to an alternative case involving acting in concert or aiding and abetting.
It is axiomatic that a person accused of a crime is entitled to be informed of the case against him. In modern criminal proceedings, that is effected, at least in part, before trial by the provision of a written summary of the prosecution opening in accordance with the legislative provision to which we have referred. Any departure from that summary must be notified to the accused person before trial and, if appropriate, particulars of the departure will be ordered pursuant to s 184.
In this case, apparently due to the late scheduling of the trial, no notice of any departure from the summary was given to the defence in accordance with the statute. Nor, it seems, was any indication given to counsel who appeared for the appellant at trial that there would be such a departure. The first she heard of the matter was when the opening was delivered to the jury. Not surprisingly, this produced an immediate complaint.
The obvious remedy for any embarrassment caused by the Crown’s departure from the summary that it had previously provided to the defence was for the jury to be discharged and the trial adjourned. In addition, the judge could make other remedial orders, including one for the provision of a new summary of the Crown opening if that was thought necessary.
To her credit, the trial judge made it plain that she would be perfectly prepared to entertain such a course. However, for reasons that are not apparent, counsel who appeared at the trial declined to have the jury discharged. She sought instead to have the Crown’s omission to state its case fully in the summary drawn to the attention of the jury, presumably to gain some forensic advantage that she perceived might be gained for her client.[4]
[4]Indeed, counsel who appeared at trial sought, at one point, to have the Crown tender its written summary, so as to use it as some form of ‘prior inconsistent statement’: T256. This application was palpable nonsense, and was, correctly, rejected by the trial judge. The trial judge did, however, indicate that she would permit the defence to tender the statement. Defence counsel said that she would not tender the summary, but planned to read out a paragraph of the summary to demonstrate to the jury that, until the prosecution opening, the Crown case had not been one based on complicity: T265.
Regrettably, counsel was permitted to rely upon the Crown’s failure to flag a case of complicity in her submissions to the jury, and did so. She thereby undoubtedly left the jury puzzled as to why what they may have regarded as an irrelevancy was being thrust upon them when they had been empanelled to try the case on the evidence they would hear, and not on any procedural irregularity committed by the Crown which had no bearing on the merits of that case.
Prior to commencing his final address, the prosecutor informed the Court, in response to a query from the trial judge, that the Crown was not presenting a case that involved any of the Crown witnesses Morgan, Tasevski or Smith having been in any way complicit in the deceased’s death.[5] They had all deposed to having left the Telstra building before the attack on the deceased and the Crown put them forward as ‘reliable and truthful’ witnesses.
[5]It is by no means clear why the prosecutor felt that he had to confine his case, on complicity, to involvement of another, or others, apart from Morgan, Tasevski and Smith. No doubt, this was done for forensic reasons, but it left the jury in an untenable position. They could only consider a case of complicity that was speculative, and unsupported by actual evidence.
In his closing address, the prosecutor described the Crown’s burden of proof in the case as follows:
The Crown has to prove that it was the accused who murdered the deceased. I told you in opening, the Crown still makes out its case ― and this is, I think, simply common sense - if the accused was with and accompanied by another person or other people in carrying out the crime, he’s said to be acting in concert or complicit with them in carrying out the crime in those circumstances. If he acted with them, he is just as guilty as if he acted alone. He’s equally guilty in the same way, if he at the time didn’t use the bat at all but somebody else did, but he was present when it happened and he encouraged them or aided and abetted them in doing so. He’s equally guilty and I think that’s just perfect common sense.
So if he used the bat and did the bashing himself, he would be guilty of murder. If he enters into an agreement with another person or others, that that other person do it, and he’s present when it happens, he’s guilty of murder. If another person or other persons do it and he encourages them by his presence and behaviour to give them the green light, if you like, to what they’re doing, he is equally guilty of murder. All right?
So I mention these things to you because you’ve got, if you like, a tension between the evidence of Smith, Tasevski and Morgan - they don’t speak of any other people being present in the squat the time but you’ve got admissions by the accused that there was, on Janes version, another person involved, or in Hoskins and Chakik’s version, other persons involved.
The Crown doesn’t know if that’s the situation: if Chakik and Hoskins of got it right and/or Janes has got it right, if there was another person or other persons involved. The Crown doesn’t know who those people or who that person was and it’s not part of the Crown case, not part of this case at all. The Crown case is that the accused man was involved in one of the ways I’ve mentioned. That’s the Crown case. The Crown doesn’t have to prove anything about these other people, it just has to prove beyond reasonable doubt what I’ve said. I think that’s plain, you understand that, and when you think about it, it is simply a statement of the simplest common sense. So that’s the way the Crown puts the case. It doesn’t undertake to prove who these other people were or may have been.
As already outlined, the defence case was that it was Tasevski who wielded the baseball bat and that Smith was complicit with him. In her closing address, counsel for the appellant referred to the prosecutor’s disavowal that his case involved the witnesses Smith, Morgan or Tasevski being complicit in the deceased’s death. She criticised these witnesses as being unreliable, in support of her submission that it was Tasevski who killed the deceased.
In her charge to the jury, the trial judge gave standard directions as to the law concerning acting in concert and aiding and abetting. In response to jury questions (particularly concerning aiding and abetting), she repeated some of these directions later. There was no complaint concerning them from either counsel. Nor could there be.
As we have indicated, in his written case in this Court, the appellant argued that the jury verdict was unsafe and unsatisfactory because, the Crown having disavowed any involvement of Tasevski, Smith or Morgan in the bashing of the deceased, the jury would have had to engage in speculation as to who acted in concert with the appellant to kill or inflict really serious injury on the deceased or who the appellant aided and abetted in the commission of this crime.
In his oral argument, counsel for the appellant referred to a number of instances after the judge’s charge where the jury sought assistance from her Honour as to what constituted aiding and abetting. He submitted, with some force, that the jury’s difficulty in applying the trial judge’s directions to the facts of the case meant that aiding and abetting should not have been left for their consideration. However, in doing so, he acknowledged that counsel who appeared below had not made any application to the judge to adopt that course.
The Crown’s answer to this criticism was that it could do no more than rely upon the admissions allegedly made by the appellant, in conjunction with the remainder of the evidence led at trial, to establish a case of murder. The Crown pointed to the use of plural pronouns by the appellant in the course of those admissions and submitted that this justified its having put the case in the way that it ultimately did when the prosecutor expanded the basis upon which liability might rest.
The appellant’s argument with respect to this ground involves criticism of the Crown for having been unable to name or identify those with whom the appellant might have acted in concert or those who he might have aided and abetted. However, all that the Crown could reasonably have done was to proffer the evidence it had which, if accepted, could certainly establish a case of manslaughter against the appellant, based upon his admissions alone. It would not have been necessary for the Crown to name or identify any accomplice ― an admission that ‘we bashed’ the deceased would, in the particular circumstances of this case, have been sufficient to implicate the appellant to the extent necessary for manslaughter.
In our opinion, the particular argument advanced before this Court in respect of Ground 4 need not be further addressed. It may well have had some substance, having regard to the paucity of evidence with respect to the presence of persons other than those who gave evidence at the trial, who could have been complicit with the appellant. Whilst there was evidence that the Telstra building was frequented by drug users, the only persons mentioned in the evidence (by the witness Morgan) were three men who left the building shortly after the three Crown witnesses arrived. If it were necessary to name or identify those who were complicit with the appellant, in the sense of proving their existence, that evidence would hardly suffice.
But if the evidence in this case was not sufficient to prove a charge of murder, as we have already concluded when dealing with Ground 1, it must follow that Ground 4 should succeed, not because of the danger of the jury having impermissibly speculated, but rather because there was simply a lack of evidence of each of the elements of murder; in particular, of course, a lack of evidence of murderous intent. The conviction of the appellant is unsafe and unsatisfactory for that reason alone.
It should be acknowledged that although the way in which the Court has determined Ground 4 was not the subject of specific argument on behalf of the appellant ― that is to say, that murder should not have been left for the jury’s consideration ― we are satisfied that the Crown has not been prejudiced by our determination of Ground 4 as we have done. The Crown argued, in respect of Ground 1, that there was no obligation on the trial judge to leave manslaughter as an alternative verdict because the only issue was whether the appellant was the deceased’s assailant, either acting alone or with accomplices. That argument was equally applicable had the Crown been defending a ‘no case’ submission with respect to the murder charge. It could have said no more than it did had the possibility of the unsafe and unsatisfactory ground being upheld for the reasons given been drawn to its attention. The conviction for murder simply cannot stand.
Conclusion
This appeal must be upheld and the appellant’s conviction for murder and the sentence imposed upon him set aside. The question remains as to the consequences which should follow that result.
Section 277 of the Criminal Procedure Act 2009 provides a procedure (originating in s 5(1) of the Criminal Appeal Act 1907 (UK)) whereby, instead of ordering a new trial following a successful appeal, this Court may substitute a verdict of guilty of another offence. The prerequisite is that the Court be satisfied that the jury at the trial must have been satisfied of facts that prove the appellant was guilty of the offence to be substituted: s 277(c).[6]
[6]R v Hopper [1915] 2 KB 431; R v Grasso [1950] VLR 21; Hughes v The King (1951) 84 CLR 170; Pemble v The Queen (1971) 124 CLR 107; Spies v The Queen (2000) 201 CLR 603; R v Withers [2009] VSCA 306.
To have reached the verdict that they did in this case, the jury must have been satisfied, at least, that the appellant made admissions to one or more of Janes, Chakik and Hoskins that ‘we’ bashed the deceased. Whilst the word ‘bashed’ does not necessarily connote an assault of such severity that it must have been effected with murderous intent, it must, in our view, surely mean, in the context of this case, an assault of sufficient severity that a reasonable person in the appellant’s position would realise that by such a beating the deceased was exposed to an appreciable risk of serious injury.[7]
[7]Wilson v The Queen (1992) 174 CLR 313.
The appellant may have carried out the assault himself, someone else may have done so acting in pursuit of a common purpose with him,[8] or he may have aided and abetted someone else. It was not necessary for the jury to consider or determine the identity of any accomplice, if indeed one or more such persons were involved. Whatever was the case, the appellant was, at the very least, on the jury’s verdict, a party to an unlawful and dangerous act which caused the deceased’s death.
[8]Although the evidence in support of concert in this case is particularly weak. Indeed, we doubt that there was ever any justification for leaving concert to the jury. The jury themselves seem to have discarded concert. All of their questions regarding complicity were directed towards aiding and abetting.
We have considered for ourselves all of the evidence led at the trial. We are entirely satisfied that, although the verdict of murder is unsafe and unsatisfactory[9] and cannot stand, the Crown presented a powerful case of manslaughter, and one which the jury, by accepting the evidence as to the admissions made by the appellant, as they must have done, would inevitably also have accepted. Indeed, whatever deficiencies there were in the evidence concerning the making of the admissions, the case against the appellant, as regards manslaughter, was almost irrefutable.[10]
[9]Applying the test laid down by the High Court in Morris v The Queen (1987) 163 CLR 454.
[10]The appellant’s case, which was that he was not present at the scene, was always destined to be rejected by the jury. The combination of circumstantial evidence, including the many phone calls passing between the appellant and the deceased, as well as the identification evidence, all pointed overwhelmingly to his having been there. In addition, he had a reason to bash the deceased, even if there was no real motive to kill him.
Thus, the appellant should be convicted of manslaughter, in lieu of his conviction for murder. There will need to be an opportunity provided so that submissions can be made as to the appropriate sentence to be imposed.
Orders
The orders of the Court will be:
1. That the appeal be allowed.
2. That the appellant’s conviction for murder be quashed and the sentence passed thereon be set aside.
3. That pursuant to s 277(c) of the Criminal Procedure Act 2009 there be entered against the appellant a judgment of conviction of manslaughter.
4. That the appellant be remanded in custody for plea and sentence before this Court on a date to be fixed.
- - -
10
0