W v Marshall

[2014] TASSC 30

[2014] TASSC 30

COURT:  SUPREME COURT OF TASMANIA

CITATION:                W v Marshall [2014] TASSC 30

PARTIES:  W
  v
  MARSHALL, Constable Sue

FILE NO:  864/2013
DELIVERED ON:  3 June 2014
DELIVERED AT:  Hobart
HEARING DATES:  16 and 23 May 2014
JUDGMENT OF:  Tennent J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Role of appellate court.
Phillips v Arnold (2009) 19 Tas R 21, followed.
Justices Act1959 (Tas), s110.
Aust Dig Magistrates [1349]

Criminal law – General matters – Ancillary liability – Complicity – Aid, abet, counsel or procure – Generally.
Randall v R; Farmer v R [2004] TASSC 42, followed.
Criminal Code Act 1924 (Tas), s3.
Aust Dig Criminal Law [2120]

REPRESENTATION:

Counsel:
             Applicant:  R Gilmour
             Respondent:  S Nicholson
Solicitors:
             Applicant:  Wright Gilmour
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2014] TASSC 30
Number of paragraphs:  28

Serial No 30/2014

File No 864/2013

W v CONSTABLE SUE MARSHALL

REASONS FOR JUDGMENT  TENNENT J

3 June 2014

1. On 26 July 2013, the applicant was found guilty by a magistrate following a hearing of one count of doing an act which resulted in the death of an animal contrary to the Animal Welfare Act 1993, s9. The allegation was that he kicked two little penguins which caused their death. The basis upon which he was found guilty was that he aided and/or abetted a principal offender, DH, who did the kicking. The applicant was with two other boys when the offence was said to have been committed, and he had told police one of the other boys, DH, had been the one who actually kicked the penguins. There was no evidence the applicant actually kicked a penguin.

2. Both the applicant and DH were charged with the same offence although on separate complaints. Both matters were heard together. Part way through the hearing, the prosecutor reached an agreement with counsel for DH pursuant to which the prosecutor agreed to seek an amendment to the complaint against DH in exchange for a plea of guilty. The magistrate, when requested, amended the complaint and took the plea from DH. The hearing proceeded against the applicant. The amendment to the complaint against DH was not in relation to the offence alleged to have been committed, but to the particulars. Instead of an assertion that DH had caused the death of two penguins by kicking them, the complaint became that he caused the death of the penguins by "chasing" them.

3. The hearing in respect of the applicant then proceeded on the basis that he had aided and/or abetted a kicking. The learned magistrate determined at [18] of her reasons:

   "I accept that the defendant had no obligation to interfere or stop [DH], and even if I am wrong as to the fact that he did not say anything to [DH] along the lines of telling him to stop, the defendant continued to be involved in the laughing and shouting and running after the penguins, and I am satisfied that his actions then after the killing of the first penguin, can be regarded as aiding [DH] to kill the second penguin.  [W] knew by then that a penguin had been killed, and by his actions, I am satisfied that he encouraged [DH] to kick and kill the second penguin.  He was not merely present; he was participating in the general activities, and as a consequence, by his actions, he communicated actual encouragement to [DH] to do the same thing again, to kick and kill a second penguin.  He knew what [DH] had done, and it is therefore reasonable to conclude that he knew it could happen again.  This activity was only brought to a conclusion by the actions of the adults intervening.  I am therefore satisfied beyond reasonable doubt that he is guilty of the charge as to one penguin only, being the second penguin killed." 

4. The applicant has sought to review the finding of guilt. The grounds of review are as follows:

   "1.The learned Magistrate erred in finding the applicant guilty to the charge of do an act which resulted in the death of an animal when the decision was irreconcilable with the particulars of the offence for which [DH] was found guilty.

   2.The learned magistrate erred in misapplying the law as to aiding and/or abetting.

   3.The learned magistrate erred in law and in fact in that on the whole of the evidence she could not have found the charge proved beyond reasonable doubt such that the decision of the Court is unsafe and unsatisfactory."

5. The first ground of review was not in the notice to review as originally filed. It was added after I raised a matter with counsel when the notice to review first came on for hearing. That matter related to the fact that the learned magistrate found the applicant guilty of the offence of doing an act which resulted in the death of an animal by aiding and/or abetting DH to kick a penguin when DH pleaded guilty to doing an act which resulted in the death of an animal by chasing the penguin. This was against the background that the magistrate, having taken a plea to an amended complaint in respect of DH, then made findings of fact in respect of the applicant which were entirely inconsistent with the plea she had taken.

The hearing

1. At the joint hearing, the first two witnesses were a couple who had been on holiday in Tasmania at the time of the incident. They had gone to the beach to watch the little penguins come ashore on this particular night.

2. The amendment to the complaint and the change of plea in respect of DH came after those witnesses had given evidence, but before any other evidence. After the change of plea by DH, the prosecutor called further witnesses. These were two police officers. A video-recorded interview between police and the applicant conducted by one of those officers was tendered and played. A statement by another witness, who was unavailable to be cross-examined, was also tendered. At the conclusion of the prosecution case, the applicant gave evidence. The hearing throughout was conducted by counsel for the applicant on the basis that DH had kicked and killed penguins, and was designed to establish the role the applicant did or did not play in the killing of the penguins by DH. None of the evidence ever suggested the applicant did any actual kicking.

3. One of the police officers, Constable Stanley, attended the scene on the night. He spoke to witnesses and DH. DH, at the time, said he was the one who had done things, not the others. DH was identified as the bigger of the three boys. Constable Lucas was the officer responsible for the interview with the applicant. In that interview, amongst other things, the applicant told police that DH had kicked three penguins.

Could the applicant be convicted having regard to the alteration to the charge against and the plea of DH?

1. There is no dispute that each of the applicant and DH either pleaded guilty to or were found guilty of the offence of doing an act which resulted in the death of an animal. DH pleaded guilty as the principal offender, and the applicant was found guilty as an aider and/or an abettor. The anomaly is that what DH pleaded guilty to was chasing penguins, while the applicant was found guilty of aiding and/or abetting DH on the basis DH kicked the penguins.

2. Both counsel made submissions in relation to various cases where, following jury trials, different verdicts were handed down in relation to a principal offender and an aider and/or abettor arising essentially out of the same set of facts. The common theme through these cases is that what gave rise to the different verdicts was the existence of a different mental element. An example was Croxford v R [2011] VSCA 433 where two men who attacked a third, who subsequently died, were both charged with murder. One was acquitted of murder but convicted of defensive homicide, while the other was found guilty of manslaughter. The appeal by the offender convicted of manslaughter was dismissed. It was held at 298 that:

   "There was no necessary inconsistency in verdicts merely because one participant was found to be acting 'defensively' and the other 'offensively'. Participants in the same act can be found guilty of different crimes – or found guilty or not guilty – according to the mental state."

3. The issue of the mental state of the applicant and DH does not arise in the present case. The issue is the different acts said to have been committed by each of them. Counsel for the applicant referred to [73] in Croxford where Ashley JA and Ross AJA, with whom Maxwell P agreed, said:

   "As to the second limb of the applicant's argument — that the two verdicts cannot stand together — we are not persuaded that there is any difficulty with the jury finding the applicant and the co-accused guilty of different offences. As a matter of principle there is no obstacle to such an outcome. As this Court said in R v Vollmer:

   'It should be noted that there are cases in which an accomplice may be convicted of some lesser offence than the principal offender has committed — probably the most common case is where the principal offender is convicted of murder and the aider and abettor only of manslaughter. However, in those cases, almost necessarily the principal offender has committed a crime containing all the elements of the crime of which the accomplice is convicted. So far as it goes the actus reus is the same.'" 

4. Counsel for the applicant submitted that the implicit need for a common actus reus was highlighted by the remarks in Croxford extracted above. He submitted that the distinguishing feature, between the present case and the authorities to which counsel had referred, was that the acts found proved to establish the guilt of the applicant were not the acts which DH could have been found guilty of committing. Counsel further submitted it would be an affront to justice and to common sense if the applicant could be found guilty as an aider and/or abettor based on facts upon which DH had no possibility of being found guilty.

5. My initial response to counsel's submissions was that, from a common sense point of view, they made very good sense. However, I then looked again at the circumstances in which the anomaly in this case arose. While the hearings of the charge against the applicant and DH proceeded together with common witnesses, they were nevertheless separate hearings. The case against each had to be determined having regard to the evidence presented on each particular case. In respect of the applicant, that evidence consisted of the evidence of Ms Smith, Mr Davis, Mr Irving, Constable Stanley, Constable Lucas and the applicant. The plea of DH part way through the joint hearing, and the amendment to the complaint against him, were not evidence on the trial of the applicant. The fact that the prosecutor appears to have made a somewhat odd decision in relation to the case against DH, one not supported by his admissions and other evidence, does not affect the case against the applicant.

6. Having heard all evidence put before her by both the prosecutor and counsel for the applicant, it was clearly open to her Honour to make a finding of fact to the effect that DH killed one or more penguins by kicking them. It was not necessary, in my view, for DH to be convicted on the same particulars, simply that the learned magistrate, in the proceedings against the applicant, could be satisfied on the evidence before her that he had committed those acts and thereby an offence.

7. In those circumstances, it does not matter that ultimately, on his plea of guilty, DH was admitting to guilt of the same charge relating to the same penguins but on the basis of a different act. Ground 1 of the amended notice to review must therefore fail.

Grounds 2 and 3

1. Crawford CJ outlined in Phillips v Arnold (2009) 19 Tas R 21 at [46] the principles to be applied by an appellate court when dealing with a notice to review. He said:

   "46 Those principles include the following. The Justices Act, s107(4)(a), requires there to be shown an error or mistake on the part of the magistrate on a matter or question of fact alone, or of law alone, or of both fact and law. A motion to review is not of the nature of an appeal by way of rehearing and the principles of Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 do not apply. On a review of the conclusion of a magistrate based on the evidence, the question is whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he or she did. Taylor v Armour & Co Pty Ltd [1962] VicRp 48; [1962] VR 346 at 351; Bedelph v Weedon [1963] Tas SR 69 at 81; Benson v Rogers [1966] Tas SR 97 at 99; Richardson v Shipp [1970] Tas SR 105 at 117."

2. As to ground 2, counsel for the applicant accepts that the learned magistrate correctly stated the law as to aiding and abetting. The complaint is that, applying that law to the facts before her, she could not, as a reasonable person, have come to the conclusion that she did. Her Honour concluded at [17] that the applicant did not know that there were going to be penguins on the beach before he went to the beach, and therefore had no intention to chase or kill penguins when he went to the beach. She accepted that mere presence without more would not be sufficient to support a finding of guilt as an aider and/or abettor.

3. The concepts of aiding and/or abetting were dealt with in Randall v R; Farmer v R [2004] TASSC 42 by Cox CJ. At par[40] his Honour said:

   "40 The concepts of aiding and of abetting, as the learned trial judge acknowledged, can overlap. In respect of aiding, the Criminal Code, s3, requires that there be an act done or an omission made for the purpose of enabling or aiding the principal offender to commit the crime. Abetting requires not merely wilful encouragement by the abettor, but the communication of that encouragement to the offender with the consequence that the offender is in fact encouraged. In either case, some active step must be taken with intent to bring about the commission of the crime by the principal offender. In most cases of aiding, some physical act or deliberate omission can be readily identified and in many cases of abetting, the communication of encouragement may take an identifiable physical form such as gestures or spoken words. In R v Coney & Ors (1882) 8 QBD 534, Hawkins J said at 557 - 558:

   'In my opinion, to constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, on non-interference, or he may encourage intentionally by expressions, gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does not. It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted.'

   Mere presence, even if it has the effect of encouraging the principal offender to commit the crime and is accompanied on the part of the accomplice by an intention to render assistance, if required, is not sufficient (R v Jones & Mirrless (1977) 65 Cr App R 250 at 252; Roughley v R (supra) at 12)."

4. Having accepted what she did about the applicant's state of mind before he went on the beach, her Honour then made findings of fact about what occurred on the beach. She said at [15]:

   "I am satisfied that all three of the boys were chasing the penguins.  I dot (sic) accept that the defendant was chasing [DH] to stop him.  I find all three of them were laughing, running around, shouting and waving torches.  I also do not accept that the defendant had started to walk away from the other two boys, and was 25 metres away from them as he said after [DH] killed the second penguin.  I am satisfied on the evidence of Ms Smith and Mr Davis that they were all together when the adults came up to the boys, with [W] standing near [SN], and with [DH] a little apart.  In fact, the laughing and yelling only stopped when boys realised the adults were right there near them, and I am satisfied that they were not aware of those adults until they came down the beach towards them."

   Her Honour went on at [17] to say:

   "As I have previously indicated, I am satisfied that [W] was running with the others, chasing penguins, laughing and yelling out.  He was voluntarily present on the beach, but I am satisfied that he could not have known that [DH] was going to kick and kill the first penguin.  There is no evidence of any discussion about anything of that nature, there was not even any knowledge by the defendant of the existence of the penguins before he went on the beach, and whilst yelling, laughing and chasing the penguins and shining torches was unacceptable behaviour, it is not a situation, in my view, which gives rise to an aiding or abetting by [W] of the first killing by [DH].  In the circumstances, what [DH] did was beyond what could have been expected he would do by [W]."

5. Counsel for the applicant submitted that the evidence did not support a finding that the applicant was involved in "laughing and shouting and running after the penguins" both before and after the first penguin was killed. Further, her Honour's reasoning at [17] and [18] could not support a conclusion that the applicant aided and/or abetted DH to kill the second penguin.

6. As to the evidence before the learned magistrate, Ms Smith did not see a penguin actually kicked at all. She heard the boys yelling and laughing, and one say quite distinctly, "Oh, they're biting me". She said that when that was said the boys were all laughing and mucking around. She described seeing torches flicking everywhere and said they were creating havoc. She said they left a group of penguins and began heading across the beach "still carrying on and laughing" until they reached the penguins in front. She then heard "a very loud thud". That is when she and her partner ran towards the boys. Later when she saw the little boy with a scooter, she thought the thud might have been that. When cross-examined, Ms Smith said they were all laughing and the chaos was all the way through. The boys were still carrying on until they realised that Ms Smith and her partner were there near them. She did not hear any voices of any of them trying to stop whatever was being done.

7. Ms Smith's partner, Mr Davis, also gave evidence. He said he saw three boys running around yelling and screaming with lights flickering. He heard the words, "Oh, they're biting me". He saw one penguin being kicked and when that happened the boys were all grouped up with nobody suggesting, "don't do it". He was clear that it was "the bigger kid" that he saw do the kicking. From other evidence it seems clear that was DH. Mr Davis described the boys as heading up the beach together in one group and running round. He described it as "pack mentality" and that they were working in a pack. He said they were smashing the scooter on the ground although he did not see a penguin hit with the scooter. He saw the boys harass at least three groups of penguins. As soon as he saw the boy kick the penguin, he began running towards them.

8. Neither of the police officers who gave evidence actually observed any activities of the applicant, DH or the third boy.  In his police interview, the applicant said that DH started killing penguins. He said DH saw a penguin and chased it. It turned around and attacked him so he "booted" it. He then said that he, DH, killed that penguin and then went and "booted" another one. He did not know if that one was dead. Then, DH went and attacked another penguin and that was when he got caught.

1. There was therefore evidence from the applicant that DH kicked three penguins and that probably the first and third were killed. The learned magistrate did not accept that the applicant had tried to stop any of DH's activities. She also accepted that, right up to the kicking of the third penguin, all three boys were laughing and carrying on. Those findings were clearly open to her. The third penguin kicked, it can be inferred, was the second penguin killed.

2. The issue is whether what the learned magistrate found the applicant was doing, throughout and up to when the third penguin was kicked, amounted to aiding and/or abetting DH in what he did. It was open to the learned magistrate to find that the applicant knew what DH was doing, that is kicking penguins, and that because the first one appeared to be dead, that any further kicking of a penguin was likely to result in the death of that penguin. It was open to her to find the applicant did nothing to stop DH from further kicking of penguins after the first penguin was kicked, and did not distance himself from what DH was doing. It was open to her to find that, right up to the kicking of the third penguin, the applicant was laughing, shouting and running after the penguins with DH.

3. Did the applicant's behaviour as found amount to aiding and/or abetting?  To convict on the basis of abetting, the learned magistrate had to be satisfied that the applicant was not only present when DH was kicking penguins, but that he also provided positive encouragement and support to DH in what he was doing, and intended by that to encourage him to continue with what he was doing. She also needed to be satisfied what the applicant was doing did in fact encourage DH. In my view, it was open to the learned magistrate to be satisfied on the evidence before her that what she found the applicant's activities were amounted to positive encouragement and support to DH in his continued killing of penguins, and that thereby he abetted DH to kill that second penguin.

4. It is unnecessary to record a view as to whether what the applicant did amounted to aiding because of the view I have reached.

Outcome

1. The application to review the decision of the learned magistrate is dismissed.