Wilio v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0072

NORDEN WILIO	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, BEACH and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 April 2023
DATE OF JUDGMENT:	27 April 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 88
JUDGMENT APPEALED FROM:	The Queen v Norden Wilio [2022] VSC 86

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CRIMINAL LAW – Appeal – Conviction – Statutory murder – Act of violence causing death – Applicant shot accomplice during attempted armed robbery – Whether act of violence notionally that of deceased – Whether deceased capable of self-murder – Leave to appeal refused.

Crimes Act 1958, ss 3A, 323 and 324; R v Butcher [1986] VR 43; DPP v Hansen (2020) 287 A Crim R 117; R v Galas (2007) 18 VR 205; DPP v Perry (2016) 50 VR 686; IL v The Queen (2017) 262 CLR 268.

CRIMINAL LAW – Appeal – Sentence – Total effective sentence of 35 years imprisonment with non-parole period of 26 years – Whether judge failed to take into account doubly warranted pre-sentence detention – Standard sentencing – Whether judge erred in approach to hypothesized mid-range of seriousness Leave to appeal refused.

Sentencing Act 1991, s 5A; Brown v The Queen (2019) 59 VR 462; Phongthaihong v The Queen (2021) 98 MVR 143.

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Counsel
Applicant:		Mr D Dann KC
Respondent:		Mr C Boyce KC with Mr L Cameron
Solicitors
Applicant:	Emma Turnbull Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA
KAYE JA:

Introduction

An indictment filed in the Supreme Court charged the applicant with the attempted armed robbery (charge 1), and murder at common law (charge 4), of Deniz Hasan (for convenience, ‘Hasan’). It also charged the applicant in the alternative with murder at common law (charge 2), and pursuant to s 3A(1) of the Crimes Act 1958 (charge 3), of Ali Ali.[1]
[1]In Duca v The Queen (2020) 62 VR 214, Maxwell P and T Forrest JA considered that the practice of pleading both a charge of common law murder and a charge of statutory murder contrary to s 3A advanced basic fair trial principles and was conducive to certainty and transparency in sentencing (see 228 [53]). Priest JA was of the view that the practice of charging both statutory and common law murder on an indictment in the alternative was contrary to law and should cease (see 231 [67]) (‘Duca’).
On 8 December 2021, a jury empanelled to try the applicant found him guilty of the attempted armed robbery[2] and murder[3] of Hasan (charge 4), and of the murder of Ali Ali pursuant to s 3A[4] (charge 3). The jury found the applicant not guilty of Ali Ali’s murder at common law (charge 2).[5]
[2]Crimes Act 1958, ss 75A and 321M. The maximum penalty is 20 years’ imprisonment.
[3]The maximum penalty is life imprisonment. See Crimes Act 1958, s 3.
[4]The maximum penalty is life imprisonment. See Crimes Act 1958, ss 3 and 3A.
[5]See [67] below.
Subsequently, on 24 February 2022, the trial judge sentenced the applicant to a total effective sentence of 35 years’ imprisonment, and fixed a non-parole period of 26 years.[6]
[6]See [84] below.
The applicant now seeks leave to appeal against conviction and sentence.
As to conviction, the applicant relies on two grounds as follows:
1 The Learned Trial Judge erred in permitting the Prosecution to seek conviction of the applicant for the death of Ali Ali, on the basis of Section 3A murder, in circumstances where such death involved the unintentional killing of a co-offender.
2 The trial of the applicant miscarried as a result of the approach of the evidence of the applicant’s account of the fatal incident, given in the hours after the incident occurred.
With respect to sentence, the applicant’s grounds are:
1. The Learned Sentencing Judge erred in failing to reduce the Applicant’s sentence on account of the fact that the Applicant had spent approximately 202 days in custody and that those 202 days could not form part of the Section 18 [of the Sentencing Act 1991] declaration.
2. The sentencing discretion miscarried in that the Learned Trial Judge engaged in a comparison between the subject offence of murder and the hypothetical mid-range offence of murder, having regard to objective factors only.
For the following reasons, we consider that the applications for leave to appeal against conviction and sentence should both be refused.

The circumstances of the killing

So as to understand the issues raised by the grounds, it is necessary to summarise the facts in moderate detail.
During the afternoon of 4 March 2019, Ali Ali and an associate, Ibrahim El Ali decided to purchase some cannabis. To that end, they engaged Ali El Ali, Ibrahim El Ali’s brother, to liaise with Hasan, who was a cannabis dealer.[7] After a series of encrypted text messages, Ali El Ali arranged to meet Hasan in Huntly Court, Meadow Heights.
[7]The deceased man, Ali Ali, was one of two brothers of Alay Ali. Ali El Ali is, as mentioned, the brother of Ibrahim El Ali.
Hasan drove to the pre-arranged location with an associate, Josip Civcija (‘Civcija’). Ali Ali and Ibrahim El Ali were driven to a location close by, in Ellam Court, Meadow Heights, by a friend, Stan Bakopoulos (‘Bakopoulos’). Ibrahim El Ali met Hasan in Huntly Court as Ali Ali hid nearby. Ibrahim El Ali, who was given a small sample of cannabis by Hasan, noticed that there was a large amount of cannabis in the boot of Hasan’s vehicle.
Ibrahim El Ali then provided the sample of cannabis to Ali Ali, and told him of seeing a large quantity in the boot of the vehicle. Ibrahim El Ali and Ali Ali then returned to Bakopoulos’ vehicle, and Ali Ali asked to be driven to the applicant’s home address in Broadmeadows. Ali Ali and the applicant, who was armed with a loaded sawn-off shotgun hidden under a jacket, then returned to Bakopoulos’ car. They planned to rob Hasan of the cannabis in the boot. Bakopoulos drove the applicant, Ali Ali and Ibrahim El Ali back to Ellam Court. Hasan arrived at a paddock to the south of Ellam Court at about the same time.
The applicant and Ali Ali approached Hasan. Ali Ali and Hasan argued. The applicant then produced the shotgun. Ali Ali briefly took possession of the gun, showing Hasan that it was loaded. Hasan then fled towards Huntly Court, pursued by the applicant and Ali Ali. Civcija heard Hasan say: ‘Relax man. Relax. You go your way. I’ll go my way’.
On arrival at Huntly Court, Hasan told Civcija, who was out of the vehicle, to get in the car. Civcija got into the front passenger seat. He then observed the applicant, holding a gun, coming from the paddock. The applicant asked Civcija to get out of the vehicle, but he did not do so. Civcija also observed Ali Ali emerge from the paddock. Hasan tried to get into the driver’s seat of his vehicle but was dragged from the car by the applicant and Ali Ali towards the footpath. Civcija saw Hasan, the applicant and Ali Ali restraining Hasan by holding the arms. There was a struggle, during which the applicant struck Hasan to the head with the shotgun.
At trial, the prosecution alleged that the applicant then deliberately fired a shot from the shotgun — intending to kill or cause really serious injury to Hasan — but accidentally shot Ali Ali to the torso. Seconds later, aware that his friend Ali Ali had accidentally been shot, the applicant deliberately fired a shot at Hasan from a distance of no more than a few metres. It hit him in the head. He suffered catastrophic injuries which led rapidly to his death.
Civcija went to Hasan’s aid. The applicant helped Ali Ali from the scene, wheeling him in an abandoned shopping trolley. Ali Ali was crying out in pain.
It is unnecessary to say much more about the events that followed. The applicant enlisted the aid of an acquaintance living nearby to drive him away, and, at some point, abandoned two shotgun cartridges and a pair of Ansell gloves in a drain in a nearby street. Police and ambulance paramedics arrived at the scene of the shootings and Ali Ali was found close by. Hasan was unconscious and could not be revived by paramedics. Ali Ali was initially conscious and spoke to the police, but then lapsed into unconsciousness and died at the scene.
Post-mortem examination revealed that Ali Ali bled to death. The shotgun blast to his torso entered on the left lower anterior chest wall, causing significant internal injury to the lung, left ventricle of the heart, hemidiaphragm, stomach, spleen, and major internal abdominal blood vessels, causing significant bleeding into the chest and abdominal cavities. Hasan died from a shotgun wound to the head. The wound, situated on the right side of his face, involved pellet abrasions across the right side of his head and neck, spreading approximately 24 centimetres.
The applicant was arrested at his home on 26 March 2019 and provided a ‘no comment’ interview to police. He did not give evidence at trial. His defence was conducted on the basis that Ali Ali had the shotgun at all relevant times. It was contended that Ali Ali shot Hasan, and then managed accidentally to shoot himself whilst putting the shotgun into his waistband.
As we have said, the jury acquitted the applicant on charge 2, murder at common law. (The prosecution had put the case on that charge on the basis of ‘transferred malice’.) On charge 3, murder pursuant to s 3A of the Crimes Act 1958, upon which the applicant was found guilty, the foundational crime was the armed robbery of Hasan that the applicant and Ali Ali had planned and begun to carry out. The prosecution case on that charge was that the applicant had produced and brandished the firearm during the course of the attempted armed robbery, at which time the firearm discharged, striking Ali Ali. Consistently with the jury’s verdict, the judge sentenced the applicant on the basis that he did not deliberately fire the shot that struck Ali Ali. The judge sentenced on the basis that the firearm discharged during the course of the struggle, the applicant’s conduct in producing and brandishing the loaded shotgun during the struggle being a cause of Ali Ali’s death.[8]

Conviction ground 1: Was s 3A available on charge 3?

[8]R v Wilio [2022] VSC 86, [8] (Tinney J) (‘Sentencing Reasons’).

Section 3A of the Crimes Act 1958

It will have been noted that the first ground touching conviction is concerned solely with the applicant’s conviction for the murder of his co-offender, Ali Ali, under s 3A(1) of the Crimes Act 1958 (colloquially ‘s 3A murder’ or ‘statutory murder’). Self-evidently, it turns on the proper construction of 3A(1), which provides:
3AUnintentional killing in the course or furtherance of a crime of violence
(1)A person who unintentionally causes the death of another person by an act of violence done in the course or furtherance of a crime the necessary elements of which include violence for which a person upon first conviction may, under or by virtue of any enactment, be sentenced to level 1 imprisonment (life) or to imprisonment for a term of 10 years or more shall be liable to be convicted of murder as though he had killed that person intentionally.

The submissions made to the trial judge

After the prosecution case had closed — the defence having elected to call no evidence — counsel for the applicant submitted to the trial judge that it was not open to the prosecution to invite the applicant’s conviction for murder under s 3A(1) of the Crimes Act 1958. Counsel submitted that s 3A did not apply because Ali Ali was the applicant’s co-offender. Relying on what was said in Haver,[9] counsel submitted that s 3A does not apply to the accidental killing of an accomplice. And citing Hansen,[10] counsel submitted that ‘the prosecution will need to show that [the applicant] was aware that it was probable that the secondary offence, which is statutory murder, would be committed in the course of carrying out the foundation [sic] offence’. The applicant’s counsel also in effect submitted that Galas[11] supported the proposition that s 3A does not extend to the accidental killing of a co-offender.
[9]Haver v DPP [2013] VSC 622, [25]–[32] (Croucher J) (‘Haver’). See also Armstrong v The Queen [2013] VSC 111, [18] (Lasry J).
[10]DPP v Hansen (2020) 287 A Crim R 117 (‘Hansen’).
[11]R v Galas (2007) 18 VR 205, 217 [53]–[54] (Kellam JA, Chernov and Vincent JJA agreeing) (‘Galas’).
Counsel for the prosecution took the trial judge to the text of s 3A(1) and submitted in effect that the expression ‘other person’ (whose death must be caused) is broad enough to embrace a co-offender. The ‘act of violence’ relied upon is ‘the production and menacing of Hasan with … the loaded shotgun’. Citing Perry,[12] counsel submitted that s 3A related to an unintended death.
[12]DPP v Perry (2016) 50 VR 686, 690–1[8] (Maxwell ACJ, Redlich and Whelan JJA) (‘Perry’).

The trial judge’s ruling

The judge rejected the submissions advanced by the applicant’s counsel. In his ruling, the trial judge summarised the respective contentions of the defence and prosecution as follows:
[Defence counsel] contends that because the alleged victim of the crime was the co-offender of the accused in the foundational crime of armed robbery, who on the prosecution case was shot accidentally by the accused, s 3A of the Crimes Act 1958 does not apply. [Prosecuting counsel], on the other hand, submits that the clear words of s 3A make it clear that the person unintentionally killed by the act of violence of [the] accused can be a co-offender.
Ruling that the prosecution would be permitted to rely on s 3A in proof of charge 3, the judge said that
the starting point of any consideration of the scope of s 3A is a consideration of the seemingly clear words of the provision. As was noted by Maxwell P and Forrest JA in Hansen, statutory construction is always a text based activity. It begins and ends by a reference to the text itself. The duty of the court is to give meaning to the legislative intention according to the terms in which it has been expressed. Context, including legislative history, extrinsic materials, pre-existing law and the general purpose and policy of a provision can assist in interpreting the meaning of the statutory text but it cannot displace that meaning.
In the absence of any authority binding upon me as to the meaning of s 3A, in the respect which is presently the subject of debate, I cannot accept that the provision is limited or restricted in the way submitted by [defence counsel].
When the legislature put into statutory form the common law felony murder rule, albeit with a reduced scope, had it intended to exclude from the provision’s operation the unintended death of a co-offender, it could readily have done so. The requirement that the death caused unintentionally be of ‘another person’ was clear. No limitation was placed on whom the other person might be. It was not required that the person who was killed unintentionally be the person who was the subject or focus of the act of violence done in furtherance of the foundational crime. Nor was it indicated that the other person was required to be uninvolved in the commission of the foundational crime. The provision would clearly capture a bystander, of whose presence the accused may not have even been aware, killed by an accidental discharge of a weapon used to menace an entirely different person.
I cannot see any policy or other reason why the unintended killing of a co-offender during the course of a necessarily violent crime such as armed robbery, should not be caught by s 3A. In the circumstances facing me where there is an absence of binding authority on the matter, I see no reason why s 3A should not be left to the jury as an alternative route by which the accused might be convicted of murder. For the reasons I have briefly stated, which I acknowledge in the circumstances may not have done justice to the submissions on both sides, I rule against the submission of [defence counsel] that I should effectively withdraw Charge 3 from the consideration of the jury as an alternative pathway to guilt of the accused of the murder of Ali Ali.

The applicant’s submissions in this Court

In this Court, counsel for the applicant submitted that the introduction of s 3A murder in this State should be seen as the last step in a process ‘whereby the felony murder rule had been gradually narrowed in its operation and then ultimately abolished’. Counsel submitted that the introduction of s 3A murder should be seen as a deliberate attempt by the legislature to narrow the circumstances in which murder could be proved, in the face of a sustained push to abolish the felony murder rule.[13] The inclusion of the words ‘death of another person’ in s 3A is consistent with this narrowing of the reach of what was also previously referred to as constructive murder.
[13]Counsel cited Hansen, 124 [23] and 124–5 [26] (Maxwell P and T Forrest JA).
Relying on observations of McGarvie and O’Bryan JJ in Demirian,[14] counsel for the applicant submitted that the fact that Parliament abolished the common law felony murder rule, and replaced it with a form of statutory murder under s 3A without making allowance for the killing of one accomplice by another, suggests that Parliament did not seek to make an offender responsible for the accidental killing of a co-offender. The judge’s ruling was inconsistent with these observations. Moreover, so counsel submitted, the judge’s ruling ‘does not sit comfortably’ with the approach of members of the High Court in IL, in which — when dealing with ‘constructive murder’ under s 18 of the Crimes Act 1900 (NSW)[15] — it was said that there ‘should not be anything surprising in the notion of attributing the acts of one person to others with a common criminal purpose where the person’s acts are in the course of, or incidental to, carrying out a common criminal purpose’.[16]
[14]R v Demirian [1989] VR 97, 121 (‘Demirian’).
[15]IL v The Queen (2017) 262 CLR 268, 280–81 [24]–[25] (Kiefel CJ, Keane and Edelman JJ) (‘IL’).
[16]Ibid 282 [29].
Counsel submitted that the words ‘another person’ in s 3A should be interpreted as referring to a person other than the accused or an accomplice who is involved in the furtherance of a crime (the necessary elements of which include violence). Just as s 3A murder could not apply in a case where a co-offender caused his own death, it cannot apply in a case where one offender causes the death of another otherwise criminally complicit co-offender. Citing observations in Hansen, counsel submitted that the proper construction of s 3A ‘does not conclude with its apparent grammatical meaning, although that meaning is a very good start to the exercise’. In determining the meaning the legislature intended the words to have, the statutory context and legislative history may play a role.[17] When the task of construing s 3A is approached in a cohesive manner, taking into account the historical backdrop of its introduction, it is plain that the term ‘another person’ as used in the section must be a reference to a person other than one who is acting jointly to commit the relevant ‘act of violence’. It would be entirely novel to construe s 3A in a way that would allow for the conviction of a co-offender on a basis that has never before occurred in this State. That novelty is reflected in the remarks of McGarvie and O’Bryan JJ in Demirian, and the respondent’s resort to Plummer[18] (which, in any event, appears to turn on the concept of ‘transferred malice’).
[17]Hansen, 121 [30] (Maxwell P and T Forrest JA).
[18]R v Plummer (1701) 12 Mod 627 SC; 84 ER 1103 (‘Plummer’). See [33], [63] below.
Ultimately, counsel for the applicant submitted that the prosecution alleged that the deceased co-offender, Ali Ali, willingly joined in a plan to commit a crime of violence using a loaded firearm. As a matter of construction and policy, counsel submitted, there is no reason to favour the view that, in the eyes of the law, the deceased co-offender was to be seen as the victim of murder, in circumstances where he was unintentionally shot and killed by that loaded firearm. Counsel contended that, due to the operation of ss 323 and 324 of the Crimes Act 1958, the act of violence that caused Ali Ali’s death — the applicant’s production and brandishing of a loaded shotgun — must notionally be regarded as Ali Ali’s act. Ali Ali could not murder himself.[19] Given that the relevant act of violence must be taken to have been Ali Ali’s, the applicant could not be liable for conviction of Ali Ali’s murder under s 3A.
[19]Section 6A of the Crimes Act 1958 provides: ‘The rule of law whereby it is a crime for a person to commit or to attempt to commit suicide is hereby abrogated’.

The respondent’s submissions in this Court

Counsel for the respondent submitted that it was open to the prosecution to invite the applicant’s conviction under s 3A. Nothing in the statutory text supports the proposition that ‘another person’ cannot include a co-offender. Hansen supported the view that s 3A was intended to constrict, but not abolish, constructive murder, that constriction being to limit its application ‘only to matters where the foundational offence carried an element of violence, as opposed to an offence committed violently’.[20] The respondent’s counsel submitted that no torturing of the clear terms of s 3A(1) could permit the words ‘another person’ to exclude as that other person an accomplice or co-offender.
[20]Hansen, 123–4 [21] (Maxwell P and T Forrest JA).
It is untenable, counsel submitted, to suggest that common law concepts of attribution (or joint enterprise liability) — whereby an act done by one participant in the course of effecting a common criminal purpose can be attributed to the other participant — are somehow imported into statutory murder, and therefore to submit that the applicant’s act of brandishing the shotgun became Ali Ali’s (who could not be liable for self-murder). The provisions of s 324C of the Crimes Act 1958, which specifically abolish common law concepts such as aiding and abetting, acting in concert, joint criminal enterprise and common purpose, cover the field. No vestige of any common law concept of attribution when co-offenders act in concert survives.
Further, even if some remnant of common law concepts of complicity had survived the enactment of s 324C, counsel submitted, so that common law concepts of attribution were in some manner to be imported into the substance of section 3A, they could not in any event do the work that the applicant’s counsel would have them do. Counsel submitted that it has long been recognised that, according to the common law concepts upon which the applicant’s counsel relies, a person to whom a co-offender’s act is attributed may still be guilty even if the co-offender either is not, or cannot be, guilty.[21] So too, as here, a person may still be guilty even if the co-offender to whom his or her act is attributed is not, or cannot be, guilty. The person performing the act does not by some mechanism ride out on the coat-tails of the co-offender’s innocence, since the act does not cease to be his or her act.
[21]Counsel cited Osland v The Queen (1998) 197 CLR 316, 345 [79] et seq (McHugh J) (‘Osland’).
The respondent’s counsel submitted that the criticism in Demirian related to the employment of s 3A in circumstances in which an accomplice had killed himself or herself, and should be so confined. IL, counsel submitted, is also distinguishable, since the wording of the NSW statute there under consideration is entirely different to that of s 3A(1). The suggestion that the trial judge’s ruling does not sit comfortably with the reasons of Kiefel CJ, Keane and Edelman JJ, is not borne out by a careful reading of those reasons. There are strong policy grounds for concluding that the expression ‘another person’ includes an accomplice or co-offender.
Counsel for the respondent submitted that although there are no identifiable prior examples of an offender being convicted of s 3A murder for the killing of an accomplice or co-offender, that does not mean that a prosecution on that basis is wrong at law. The unintentional killing of an accomplice or co-offender in such circumstances might be thought to be a rare occurrence. Referring to Plummer,[22] and observations of Gageler J in dissent in IL,[23] counsel submitted that there is support for the proposition that at common law a person who killed an accomplice in the course of the commission of another crime could be guilty of murder.
[22]Plummer, 1104(ER), Counsel also referred to: David Lanham, Felony Murder – Ancient and Modern, (1983) 7 Crim LJ 90, 96.
[23]IL, 318 [122].
Finally, the respondent’s counsel submitted that, on a plain reading of the clear terms of s 3A, there is no reason not to read the term ‘another person’ as embracing an accomplice or co-offender.

Discussion

The issues raised by this ground invite identification of the constituent elements of the offence created by s 3A. In attempting that exercise, we note that the reasons for the abolition of the common law felony murder rule, and the introduction of s 3A murder (or statutory murder), were discussed in Butcher.[24] Save to remain cognisant of that history, it is unnecessary to restate it.
[24]R v Butcher [1986] VR 43, 51 (Murphy, Murray and Gobbo JJ) (‘Butcher’). And see Duca, 219–20 [16]–[18] (Maxwell P and T Forrest JA), 229–30 [59]–[62] (Priest JA). See also Mitchell v The Queen [2023] HCA 5, [62]–[67] (Gordon, Edelman and Steward JJ),
Recently, in Hansen, when discussing the elements of s 3A murder, Priest JA (in dissent) expressed the view that, when the words of s 3A(1) are given their ordinary and grammatical meaning, in order for a person to be held liable for statutory murder:
·    first, he or she must cause the death of another person;
·    secondly, the death must be caused unintentionally by an act of violence; and
·    thirdly, the act of violence must be done in the course or furtherance of a crime the necessary elements of which include violence.[25]
[25]Hansen, 133 [66] (Priest JA). Cf Perry, 697–8 [38] (Maxwell ACJ, Redlich and Whelan JJA); Galas, 213 [28] (Kellam JA, Chernov and Vincent JJA agreeing).
Priest JA also expressed the view[26] that
the language of s 3A(1) makes it plain that it is the death which must be unintentional[27] — not the act causing death — and that such unintentional death must be caused by an act of violence. It is equally plain, in my view, that the act of violence causing death must be conscious, voluntary and deliberate … and done in the course or furtherance of a crime the necessary elements of which include violence.[28]
[26]Hansen, 133 [67]–[68].
[27]Cf Perry, 690 [8](b), 697 [35]–[36], 698 [42]–[43].
[28]We note that s 12A of the Criminal Law Consolidation Act 1935 (SA), the (differently-worded) South Australian equivalent of s 3A — recently considered by the High Court in Mitchell v The King [2023] HCA 5 — relevantly provides that a person ‘who commits an intentional act of violence while acting in the course or furtherance of a major indictable offence … and thus causes the death of another, is guilty of murder’. In that case it was held that the common law doctrine of extended joint criminal enterprise is incapable of application to constructive murder under s 12A.
Earlier, in Zaim, Bongiorno JA (with whom Ashley and Hansen JJA agreed) stated the elements of murder under s 3A to be as follows:[29]
Although s 3A originated in the felony-murder rule, its application now depends solely on its proper construction as a criminal statute. Thus, for an accused to be convicted of this form of murder, the Crown must prove that he or she:
(a) caused the death of the victim,
(b) unintentionally,
(c) by an act of violence,[30]
(d) done in the course of or in furtherance of a crime, a necessary element of which was violence and which carried a maximum penalty of imprisonment for life or for at least 10 years.
[29]Zaim v The Queen [2011] VSCA 80, [3].
[30]Until the decision of the Full Court in R v Brown [1949] VLR 177, there was doubt as to whether, in Victoria at least, the felony-murder rule required the death of the victim to have been caused by an ‘act of violence’: see R v Radalyski (1899) 24 VLR 687 and Ross v The King (1922) 30 CLR 246, 252, 271 but contra DPP v Beard [1920] AC 479, 493, 504–7. See also Ryan v The Queen (1967) 121 CLR 205, 240 (Windeyer J)
And in Galas, Kellam JA (with the concurrence of Chernov and Vincent JJA) said that the elements which must be proven in order to establish statutory murder are:[31]
(a) the deceased was killed unintentionally,
(b) the death was caused by,
• an act of violence,
• which act was conscious, voluntary and deliberate,
• done in the course of or furtherance of a crime — the necessary elements of which include violence — which carries a penalty of life imprisonment or a maximum penalty of not less than 10 years’ imprisonment.
[31]Galas, 213 [28].
We note that the Court in Perry disapproved those parts of Zaim and Galas that held that, for the purposes of s 3A murder, the prosecution must prove affirmatively that the relevant killing was unintentional.[32] In our view, however, that aspect of Perry is not binding. As to that, it will be remembered that Perry was an appeal by the Director of Public Prosecutions on a ground that the sentence imposed in that case for statutory murder was manifestly inadequate. We consider it to be plain that those portions of the Court’s reasons in which Zaim and Galas were criticised did not form part of any necessary process of reasoning determinative of the posed ground. Hence, we do not regard them as binding.[33] For present purposes, however, it is strictly unnecessary to determine whether Zaim and Galas are to be preferred.
[32]Perry, 698 [42].
[33]See Hansen, 68 [133] (Priest JA).
Although the judge’s directions on the elements of charge 3 were not impugned, we note that in his charge the judge instructed the jury as follows:
To prove that the accused is guilty of 3A murder, the prosecution must prove the following elements beyond reasonable doubt. (1), that the accused committed an act of violence; (2), that the act of violence caused the death of Ali Ali; (3), that the act of violence was committed in the course or furtherance of a serious crime of violence, which can be called the foundational crime; and (4), that the act of violence of the accused was conscious, voluntary and deliberate.
Clearly, the judge’s directions on the elements of s 3A murder were given in conformity with the Charge Book:[34]
5.Statutory murder has four elements:
i. The accused committed an act of violence;
ii. That act of violence caused the death of a person;
iii. The act of violence was committed in the course or furtherance of a serious crime the necessary elements of which include violence; and
iv. The act of violence was conscious, voluntary and deliberate (see R v Galas (2007) 18 VR 205 at [28]; DPP v Perry (2016) 50 VR 686 at [8], [39]; Zaim v R [2011] VSCA 80 at [43]).
[34]Victorian Criminal Charge Book, Judicial College of Victoria, [7.2.1A] (‘Charge Book’). See also Freckelton, Criminal Law, Investigation and Procedure Victoria, Thomson Reuters, [HOM.120].
It is also to be noted that, drawing on Perry, the Charge Book spells out that it is not necessary for the prosecution to prove that the relevant killing was unintentional:[35]
6.Despite earlier decisions to the contrary, it is not necessary for the prosecution to prove that the killing was unintentional. The reference in Crimes Act 1958 s 3A to the act being unintentional does not create an element of the offence but merely distinguishes statutory murder from common law murder (DPP v Perry (2016) 50 VR 686 at [42]. C.f. DPP v Hansen [(2020) 287 A Crim R 117].
[35]Ibid.
Notwithstanding the statements from the Charge Book extracted immediately above, however, we do not consider it to be necessary for present purposes to determine whether s 3A requires that the death be proved to be unintentional as an element of the offence, or merely distinguishes statutory murder from common law murder. Indeed, it is not necessary to determine with precision the constituent elements of statutory murder.
The sole question for determination under this ground is whether an accused person may be liable for statutory murder in circumstances where the person whose death is caused — by the relevant act of violence in the course or furtherance of a crime (the necessary elements of which include violence) — is an accomplice or co-offender.[36]
[36]So far as that is concerned, we note that the Charge Book also contains the following (at [7.2.1A]):
12.The person who is killed must be a different person from the person who committed the relevant causal act. Statutory murder does not apply to the case where an accused’s accomplice kills him or herself (IL v The Queen (2017) 262 CLR 268).
13.However, it is unclear whether this prohibition extends to the case where one co-offender dies at the hand of another (see R v Armstrong & Ors [2014] VSC 256 at [7]–[11]; Haver v DPP [2013] VSC 622 at [25]–[32]).
The proper construction of s 3A(1) depends primarily on the specific words of the section, as appropriately informed by the statutory context of the provision and its legislative history. The text of s 3A(1) is quite clear. It does not, either expressly or by implication, exclude from its application an act of an accused which unintentionally causes the death of an accomplice. As discussed in Butcher, it is apparent that the principal intent of the section’s enactment was to confine the felony murder rule to cases in which death was caused by an act of violence done in the course of a crime a necessary ingredient of which includes an act of violence. Neither the history of the legislation, nor its plain terms, permit of a limitation of the words ‘death of another person’ to exclude a case in which an accused person unintentionally causes the death of an accomplice. To construe s 3A(1) to contain such a constriction would involve an impermissible rewriting of the specific terms of the provision.
In our view, giving the words of s 3A(1) their ordinary, grammatical meaning, the expression ‘another person’ is sufficiently broad to encompass an accomplice or co-offender of the person who causes death by an act of violence done in the course or furtherance of a crime (the necessary elements of which include violence). Put another way, we can see nothing in the language of s 3A(1) which would compel the conclusion that an accomplice or co-offender killed by an act of violence done in the course or furtherance of a crime (the necessary elements of which include violence) is excluded from its operation.
Turning to the authorities relied upon by the applicant’s counsel, we consider that the reliance on IL was misplaced. Factually, IL was materially different from the present case. More importantly, the legislative provision construed in IL, s 18 of the Crimes Act 1900 (NSW) — which Bell and Nettle JJ described as ‘poorly drafted and, for that reason, difficult to construe’[37] — bears little resemblance textually to s 3A.
[37]IL, 293 [59].
In IL, the appellant had been using residential premises he owned for the singular purpose of manufacturing methylamphetamine. An accomplice, ‘Lan’, who was engaged in a joint criminal enterprise with him to manufacture methylamphetamine, was killed in a fire caused when a gas ring burner was lit in a small and inadequately ventilated bathroom containing a high concentration of flammable acetone vapours. The prosecution was unable to prove whether the appellant or his deceased accomplice had ignited the gas ring burner that caused the fire.
Among other things, the appellant was charged with murder contrary to s 18(1)(a) of the Crimes Act 1900 (NSW), and, alternatively, manslaughter, contrary to, s 18(1)(b). Due to its inability to prove that the appellant physically performed the act causing the death, the prosecution argued that he was nonetheless criminally liable for the act causing death as a participant in a joint criminal enterprise. Section 18(1)(a) provided that murder ‘shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years’; and s 18(1)(b) provided that every other punishable homicide ‘shall be taken to be manslaughter’.
In joint reasons, Kiefel CJ, Keane and Edelman JJ held that the prosecution case had to fail since the prosecution could not disprove the possibility that the deceased accomplice lit the burner and thereby caused his own death. In dealing with the concept of attribution, they observed:[38]
In summary, the decision of the majority of this Court in Osland resolved much confusion that had existed in the context of the primary liability of an accused person based upon the attribution of acts done in the course of a joint criminal enterprise. That decision was, and continues to be, authority for the proposition that joint criminal liability involves the attribution of acts. The attribution of acts means that one person will be personally responsible for the acts of another. The decision in Osland does not involve attribution of liability for either the whole of a crime or part of a notional crime.
[38]IL, 287 [40].
Kiefel CJ, Keane and Edelman JJ considered that, as a matter of construction, s 18 does not create an offence of murder or manslaughter where the deceased killed himself or herself. They considered that s 18 does not contemplate that an accused person will be liable for murder (or manslaughter) through the attribution to the accused person of an act by which an accomplice to a joint criminal enterprise kills himself or herself. Construing s 18 against the common law on which it was based, they said:[39]
Consistently with its origins in the common law, the text and context of s 18 also confirm that the concern of the section was not with the killing of oneself. First, when it was enacted s 18 was immediately followed by the penalty in s 19, which provided that the person who commits murder ‘shall be liable to suffer death’. That plainly indicated that the ‘murder’ the section was concerned with was the killing of another person. Secondly, the instance of murder involving ‘intent to kill or inflict grievous bodily harm upon some person’ (emphasis added) contemplated that ‘some person’ was some person other than the person causing the death. Indeed, on a literal reading of s 18(1) the ‘person’ whose death is caused is differentiated from the ‘accused’ and the ‘accomplice’. The language in which s 18(1) is cast does not contemplate that the accomplice of the accused might be the person whose death was caused by the accused or the accomplice. Thirdly, s 18(2)(b) is an express acknowledgment that the punishment or forfeiture in relation to killing, other than by misfortune, is concerned with the killing, by murder or manslaughter, of ‘another’.
The short point is that the murder ‘taken to have been committed’ and ‘[e]very other punishable homicide’ taken to be manslaughter to which s 18 refers require the killing by one person of another. Section 18 is not concerned with the circumstance of a person who kills himself or herself intentionally. Nor is it concerned with a person who kills himself or herself accidentally. It follows that the offence of murder is not committed where a person kills himself or herself in an attempt to commit, or during or immediately after the commission of, a relevant crime. Nor is the offence of manslaughter committed when a person kills himself or herself in some other way. Section 18 did not create such new offences. Nor could the section be engaged, and such offences created, by attributing to another person an act which caused a self-killing.
[39]IL, 280–1 [24]–[25] (citation omitted).
Bell and Nettle JJ jointly held that, no matter the state of the common law at the time s 18 was enacted, self-murder was no longer a crime at the time of the killing. Hence, if the deceased accomplice lit the gas ring burner and caused his own death, that was not the actus reus of any crime in NSW. Since the deceased and the appellant did not do between them all the things necessary to constitute a crime of murder or manslaughter, the appellant could not properly be considered liable for the deceased’s death pursuant to the doctrine of joint criminal enterprise liability.[40] Gageler J and Gordon J separately dissented in the result. It is unnecessary to refer to their reasons.
[40]IL, 304 [79]–[80].

IL turned on the construction to be given to s 18 of the Crimes Act 1900 (NSW). This case turns on the proper construction of s 3A. In the present case, the act causing death — producing and brandishing the loaded shotgun — was not Ali Ali’s, it was the applicant’s. Ali Ali did not kill himself. No principle laid down in IL dictates that the applicant may not be liable for statutory murder on the basis that Ali Ali was complicit in the attempted armed robbery.
Furthermore, Demirian, upon which the applicant’s counsel relied, does not support the proposition that, in a case such as the present, a person cannot be responsible under s 3A for the accidental killing of a co-offender in the course of their joint crime. Once more, Demirian was a case in which the co-offender had performed the act which had caused his own death. And unlike the present case, it turned (so far as is relevant) upon the prosecution’s attempt to construct a case for murder of the co-offender by combining the concepts of ‘innocent agent’ and ‘transferred malice’.
In Demirian, the applicant was convicted at trial of conspiracy to cause an explosion likely to endanger life and of the murder of a co-offender, Hagop Levonian. The prosecution case was that the applicant and Levonian entered into a conspiracy to blow up the Turkish Consulate. While this plan was being put into effect, Levonian detonated the bomb accidentally, killing himself. At trial, the prosecution case was that it was within the scope of the agreement to which the applicant was a party that the bomb would be set off either for the purpose of killing or causing serious bodily injury to some person (or with the knowledge that it would probably do so). This was sufficient to render the applicant guilty of the murder of Levonian, whether he was present at the scene when the bomb detonated or not.
The Full Court quashed the conviction for murder, and did not order a retrial. Ultimately, in a joint judgment, McGarvie and O’Bryan JJ concluded that on a new trial the prosecution could not present a cogent case for murder,[41] Tadgell J holding that there was ‘no evidence upon which a jury could conclude that the deceased was killed by any act of homicide for which the applicant was in law responsible’.[42]
[41]Ibid 125.
[42]Ibid 137.
McGarvie and O’Bryan JJ held that, before the applicant could have been convicted as having acted in the role of an accessory before the fact to murder, it would have had to be established that he was an accessory to Levonian, who had committed murder. Suicide was, however, no longer a crime. Since it could not be established that Levonian had committed murder by killing himself, the applicant could not be found guilty of murder as an accessory before the fact.[43]
[43]Demirian, 107–8.
Having resolved to quash the conviction for murder, the Court was required to consider whether to order a retrial. On that question, the prosecution submitted that it could, on the available evidence, present a case for murder free of the defects which had led to the original conviction being set aside. One of the principal submissions advanced by the prosecution in support of that contention relied on the concept of ‘innocent agent’. The submission involved the following steps. First, the applicant intended that Levonian should do an act which would cause the bomb to explode and intended the explosion to kill (or knew that it probably would kill) Consular officials; secondly, Levonian did an act which caused the bomb to explode; thirdly, Levonian — who could not commit the crime of murder by killing himself — is to be regarded as having acted as the applicant’s innocent agent and the applicant is to be treated as the principal offender; fourthly, the applicant is therefore to be treated as having done the act which caused the explosion with intent to kill (or knowledge that it probably would kill) Consular officials; and, finally, by the concept of transferred malice it follows in law that the applicant is to be treated as a principal offender who did the act which killed Levonian with intent to kill him (or knowledge that it would probably do so).[44]
[44]Ibid 117.
In the course of their analysis of that submission, McGarvie and O’Bryan JJ remarked that no decision anywhere in the common law world had been cited ‘where the concept of innocent agent was combined with that of transferred malice to justify the conviction of an accomplice for the murder of a fellow accomplice who unintentionally killed himself or herself while engaged in carrying out the crime of murder or any other crime’.[45] Indeed, the only cases drawn to the attention of the Court where a party had killed himself in the course of committing a crime and another party to the crime had been charged with murder as a result, were cases decided in the United States of America.[46] Those cases, however, involved reliance on a form of felony murder rule much wider than the common law rule or the statutory rules applicable in Australia, some of the decisions depending on statutory provisions or principles of law not applicable in Victoria.[47] Having discussed the American cases, they referred to the policy underlying the common law felony murder rule as discussed by textbook writers.[48] McGarvie and O’Bryan JJ then said:[49]
The fact that Parliament abolished the common law felony murder rule in 1981 and replaced it with s 3A(1) of the Crimes Act, without specifically referring to the killing of one accomplice by another, suggests that Parliament did not see a need for such an extension.
In our opinion, there are no principles implicit in the existing decisions in Australia or England which would justify such a complex and artificial application of principle as would have to be followed if [the applicant] were to be liable to conviction of murder under one of the common law definitions by combining the doctrines of innocent agent and transferred malice. Such authority as there is and such views as have been expressed in Australia and England and in the majority of decisions in the United States do not suggest that the public interest requires that the law should provide for the conviction of [the applicant] for the murder of Levonian in a case such as this. In cases such as this, fate, in a real sense, exacts its own penalty.
[45]Ibid 118.
[46]Ibid 119.
[47]Ibid.
[48]Ibid 120–1.
[49]Ibid 121.
Counsel for the applicant seized on the observation that, the enactment of s 3A without specific reference to one accomplice killed by another, suggests that the legislature ‘did not see a need for such an extension’. In our opinion, however, the passage from the judgment of McGarvie and O’Bryan JJ extracted immediately above does not support the proposition that s 3A is unavailable to make an offender liable for the unintended death of a co-offender caused in the course of a jointly committed crime. We consider it to be plain that the crux of the judgment is that no common law principles which might be drawn from the extant Australian or English authorities would implicitly justify the ‘complex and artificial application of principle’ that would be required in order to convict the applicant of murder ‘under one of the common law definitions by combining the [common law] doctrines of innocent agent and transferred malice’. Clearly, their Honours’ analysis revolved around the possible use of common law doctrines to make out a case for murder, and did not at all depend on any putative or anticipated application of s 3A. Seen in that light, their remark that Parliament’s replacement of the common law felony murder rule with statutory murder without specifically referring to the killing of one accomplice by another ‘suggests that Parliament did not see a need for such an extension’, is obiter. An examination of their judgment reveals that, apart from that passing remark, McGarvie and O’Bryan JJ made no attempt to construe s 3A, or to determine its reach.
With respect to the other cases referred to, it is enough to say that we consider that Galas does not support the proposition advanced by the applicant’s counsel to the trial judge, and that the remarks in Haver and Armstrong are clearly obiter.
There is very limited authority for the proposition that at common law an accused person who caused the unintentional death of an accomplice in the course of the commission of a crime might be liable for the constructive murder of that accomplice. Hence, in Plummer, eight individuals were in the process of stealing wool when they were confronted by the King’s officers who sought to apprehend them. One of the eight fired a fuzee (a type of firearm) and shot one of his accomplices, John Harding. The Court was called upon to consider whether any of the other eight individuals who had not fired the gun could be guilty of murdering their deceased co-offender. Chief Justice Holt — in obiter remarks concerning the felony murder doctrine that have been described by a commentator ‘as about as weak an authority as it is possible to imagine from that great Judge’[50] — said of the shooter:
He was upon an unIawfu1 design, and if he had in pursuance thereof discharged the fuzee against any of the King’s officers that came to resist him in the prosecution of that design, and by accident had killed one of his own accomplices, it would have been murder in him.
[50]David Lanham, Felony Murder – Ancient and Modern, (1983) 7 Crim LJ 90, 96.
Apart from Plummer, Gageler J in dissent in IL, having noted that suicide ceased to be a crime in NSW in 1983, observed:[51]
Before 1983, there was no reason why an act attributed to an accused which caused the unintentional death of an accomplice with the accused in the foundational crime did not result in the accused becoming the constructive murderer of the accomplice in the same way as the accused would have become a constructive murderer if the same act had caused the unintentional death of a third person. Since 1983, nothing has changed.
[51]IL, 318 [122].
It is, however, unnecessary to resort to the common law to resolve the issue confronting the Court. Our task is to construe the words of the statute. In our opinion — whatever else might be said of the elements of s 3A murder — as a matter of construction the expression ‘another person’ as used in the section is wide enough to embrace an accomplice or co-offender of the person whose act of violence causes death in the course or furtherance of a crime (the necessary elements of which include violence). We thus consider that it was open to the prosecution to rely on s 3A to establish that the applicant unintentionally caused the death of another person, Ali Ali, by an act of violence — producing and brandishing a loaded shotgun — done in the course or furtherance of a crime the necessary elements of which include violence, attempted armed robbery.
Ground 1 cannot be upheld.

Postscript

We note that, although it was held in Duca that s 3A does not create a separate and distinct offence of murder, and that statutory and common law murder are simply alternative pathways to a verdict of guilt, rather than two distinct crimes requiring distinct verdicts,[52] the applicant’s counsel did not raise any issue concerning the applicant’s apparently simultaneous acquittal of murder (on charge 2) and conviction of murder (on charge 3) by the same jury in relation to the same killing. As to that we further note that, after Duca was decided, the High Court in Mitchell[53] made it clear with respect to broadly equivalent South Australian provisions, that the relevant legislative provision providing for statutory murder does not create a ‘standalone offence’, but merely specifies one circumstance in which a person is guilty of the offence of murder.[54]
[52]Duca, 224 [35] (Maxwell P and T Forrest JA); 230 [42] (Priest JA).
[53]Mitchell v The Queen [2023] HCA 5 (‘Mitchell’).
[54]Mitchell, [36] (Gageler, Gleeson and Jagot JJ). See also [4]–[5] (Kiefel CJ); [73]–[75] (Gordon, Edelman and Steward JJ).

Conviction ground 2: Failure of the prosecution to call hearsay evidence

The applicant gave a ‘no comment’ record of interview to police, and did not give evidence at his trial. As we have indicated, his ‘defence’ to charge 3 was that Ali Ali deliberately shot and killed Hasan before accidentally shooting and killing himself. Ground 2 revolves around the failure of the prosecution to introduce evidence from two individuals, Alay Ali and Ali Esber (‘Esber’), of a hearsay statement that the applicant allegedly made to Alay Ali which gave support to his essential defence.
Alay Ali is the brother of the deceased co-offender, Ali Ali. Esber, a cousin of the deceased, made a statement to police on 5 March 2019, in which he claimed that he spoke to his deceased cousin two to three weeks before he died. Upon being informed that his cousin had been killed, he visited Alay Ali and spoke to him. Esber stated:
Alay ended up speaking with [the applicant] on the phone. Alay was using his phone at the time. Alay had gone outside the garage to talk to him and Alay came back in and said to me [the applicant] had told him Ali [Ali] had shot someone and then as he was running he shot himself in the stomach.
When spoken to by investigating police, Alay Ali said nothing about the telephone call with the applicant to which Esber referred. He made a statement on 5 March 2019 in which he made no mention of having spoken to the applicant the day previously. And when Detective Senior Constable Michael Cashman, attached to the Homicide Squad, spoke to Alay Ali on 13 March 2019, Alay Ali told him that he had spoken to the applicant by telephone the previous day, but once Alay Ali more made no mention of having spoken to the applicant on 4 March 2019. Detective Cashman asked Alay Ali to make a further statement but he declined.
Although the names of Alay Ali and Esber were endorsed on the indictment as witnesses, prosecuting counsel at trial refused to call them as witnesses on the trial, or for the purposes of ‘limited preparatory cross-examination’ pursuant to s 198B of the Criminal Procedure Act 2009 (‘CPA’).
Defence counsel submitted to the trial judge that, as a minimum measure, the prosecution should call Alay Ali under s 198B to determine his potential to provide relevant evidence. Counsel submitted that Esber, and, potentially, Alay Ali, had relevant evidence to give under s 55 of the Evidence Act 2008. Among other things, relying on Apostilides;[55] Richardson;[56] and Shaw,[57] counsel submitted that the prosecution’s refusal to call Alay Ali was unfair.
[55]R v Apostilides (1984) 54 CLR 563 (‘Apostilides’).
[56]Richardson v The Queen (1974) 131 CLR 116 (‘Richardson’).
[57]R v Shaw (1991) 57 A Crim R 425 (‘Shaw’).
Prosecuting counsel submitted to the trial judge that Esber offers no direct evidence that is necessary for the unfolding of the prosecution case. He was neither an eyewitness, nor involved in the relevant transaction that disclosed the two killings. Esber, counsel submitted, offered only inadmissible hearsay evidence about a conversation he claimed to have had with Alay Ali, the brother of one of the deceased, Ali Ali. Counsel submitted that Alay Ali was in the same category as Esber. Alay Ali had made a statement to police on 5 March 2019, in which he did not confirm the conversation of which Esber spoke. He certainly did not disclose to police having any conversation with the applicant, and professed ignorance as to what had happened to Ali Ali.
We need not set out the judge’s ruling[58] in detail. He held that ‘the decision of the prosecutor not to call the witness cannot be impugned’.[59]
[58]DPP v Wilio [2021] VSC 71.
[59]Ibid [79].
It is plain that any representation made by the applicant to Alay Ali was, on its face, caught by the hearsay rule in s 59(1) of the Evidence Act 2008. Had Alay Ali provided evidence of the representation, it might conceivably have been regarded as ‘first-hand’ hearsay under s 62. It is also plain that the applicant’s supposed representation, as allegedly repeated by Alay Ali to Esber, was not first-hand hearsay in Esber’s hands.
In this Court, counsel for the applicant submitted that, at the time that trial counsel had argued for the admissibility of the applicant’s alleged statement to Alay Ali, the possibility of the applicant giving evidence in his defence had been left open. In circumstances where it had been foreshadowed that the applicant might give evidence, prosecuting and defence counsel, and the judge, should have anticipated — but did not — that s 66 of the Evidence Act 2008 would open up a pathway for the admissibility of the evidence. Counsel cited Nichols,[60] Constantinou,[61] and Crisologo[62] in support of these submissions.
[60]Nichols (a pseudonym) v The Queen [2021] VSCA 273, [94]–[97] (‘Nichols’).
[61]Constantinou v The Queen [2015] VSCA 177, [177]–[188] (‘Constantinou’).
[62]R v Crisologo (1997) 99 A Crim R 178, 189 (‘Crisologo’).
Section 66(2)(a) of the Evidence Act 2008 in effect provides that evidence of a representation that is given by the person who made the representation, or by a person who saw, heard or otherwise perceived the representation being made, is admissible if ‘the person who made the representation has been or is to be called to give evidence’.
When he addressed the jury in response to the prosecution opening, senior counsel for the applicant made it clear that who was holding the shotgun when Hasan and Ali Ali were shot was in issue. Apart from that, there was nothing to suggest that the applicant was to be called to give evidence. For the judge to have approached the issue on the basis that s 66 might open up a pathway to admissibility would have been wholly speculative. And, in circumstances where the applicant did not in fact give evidence, it is beyond argument that s 66 was not engaged. So much, in our view, is sufficient to dispose of this ground.
Counsel for the applicant submitted, however, that the duty imposed on prosecuting counsel to conduct the trial fairly should be viewed against the backdrop of s 66. Although, in written submissions, counsel ‘recognised that a number of events and related forensic decisions would have had to have played out, before any jury in the applicant’s trial could legitimately have heard of his account of the fatal incident’ via s 66, counsel nonetheless submitted that ‘the opportunity for those events to play out and those forensic decisions to be made’ had been denied to him.
We cannot accept these submissions, which, in effect, boil down to this: despite the fact that Alay Ali had not provided a statement to police setting out the alleged conversation with the applicant, and it was unknown what (if any) evidence he could provide, prosecuting counsel should nonetheless have called him on the voir dire to enable defence counsel to go on a fishing expedition to try to determine whether Alay Ali would confirm the alleged conversation with the applicant; and, if the fishing was successful to the extent that it produced some possibly exculpatory hearsay evidence, prosecuting counsel would then be required to call Alay Ali to give evidence of the applicant’s self-serving exculpatory statement, any such statement only being admissible under s 66, however, if the applicant chose to give evidence (which he had chosen not to do).
We consider that, if these submissions were accepted, an entirely novel obligation would be imposed on prosecuting counsel.
Prosecuting counsel have the responsibility of ensuring that the prosecution case is properly presented. In the course of discharging that responsibility, it is for them to decide what evidence will be adduced. They also have the responsibility of ensuring that the prosecution case is presented with fairness to the accused.[63] Thus, for example, a prosecutor would be expected to call an eyewitness to any events which go in proof of the crime charged, even if the evidence of the witness was inconsistent with the prosecution case.[64] But it is not part of a prosecutor’s duty to call a witness on the voir dire so as to permit the defence speculatively to trawl for possibly exculpatory evidence (which, in any event, would only be admissible if the accused person gave evidence).
[63]Richardson, 119 (Barwick CJ, McTiernan and Mason JJ); Apostilides, 575–6 (Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ); R v Armstrong [1998] 4 VR 533, 537 (Charles and Batt JJA and Vincent AJA) (‘Armstrong’).
[64]Armstrong, 537.

Ground 2 is without substance. In our opinion, the duty to present the prosecution case with fairness to the accused could not have required prosecuting counsel in the applicant’s trial to have done what the applicant’s counsel submit they should have. It is impossible to conclude that the trial miscarried as a result of the course that the trial took.

Sentence ground 1: Pre-sentence detention

Following a plea, the trial judge sentenced the applicant to 29 years’ imprisonment on charge 4, the murder of Hasan; 19 years’ imprisonment on charge 3, the murder of Ali Ali; and 7 years’ imprisonment on charge 1, attempted armed robbery. Six years of the sentence on charge 3 was ordered to be served cumulatively with the sentence on charge 4, leading to a total effective sentence of 35 years’ imprisonment, upon which the judge fixed a non-parole period of 26 years. Pursuant to s 18 of the Sentencing Act 1991, the judge declared a period of 866 days as pre-sentence detention.
Although the judge declared a period of 866 days, the applicant had been arrested on 26 March 2019, and had been continuously in custody until sentenced on 24 February 2022, a period of 1,068 days. Thus, a period of 202 days was excluded from the s 18 declaration.
During the plea, the judge was informed that the period of 202 days related to a sentence that the applicant served for unrelated charges between 14 May and 30 November 2019. Thereafter, the parties made no submissions on the relevance of the period of 202 days’ detention.
In support of the first ground touching sentence, the applicant’s counsel submitted that there is no indication in the sentencing remarks that the judge reduced the applicant’s sentence on account of that period of 202 days when the applicant’s time in custody was ‘doubly warranted’. Counsel submitted that the individual sentences, total effective sentence and non-parole period do not indicate that any such reduction has taken place. The failure to reduce the applicant’s sentence in any way for the time his custody was doubly warranted involves specific sentencing error. Counsel submitted that, whilst it was not to be an exercise in mathematical equivalence, there was an obligation to take into account, in a broad way, that period of 202 days in custody that was doubly warranted.[65]
[65]Counsel cited R v Renzella [1997] 2 VR 88; Wheldon v The Queen (2011) 31 VR 297; El Waly v The Queen (2012) 46 VR 656; and McElroy v The Queen [2018] VSCA 126.
Counsel for the respondent submitted that, whilst there is no specific reference in the sentencing remarks that the applicant’s sentence was reduced as a result of the 202 days’ custody, the judge was expressly informed of the sentence the applicant had undergone during his period on remand. The applicant’s offending was very grave. Any moderation which might have been afforded to the applicant’s sentence on account of the 202 days’ imprisonment already served was rendered negligible in the context of the gravity of the offending and the total effective sentence necessarily imposed. Counsel submitted that nothing in the sentence — not least the total effective sentence actually imposed — suggests that the judge did not have proper regard to the principle of totality, or imposed a sentence which was not just and appropriate in all the circumstances. But even if specific sentencing error were demonstrated, counsel submitted, it could not be said that a failure to take account of the 202 day sentence served would have had any appreciable impact on the sentence imposed, which was well within the available range.
This Court’s intervention is justified only if satisfied that there is an error in the sentence first imposed, and that a different sentence should be imposed.[66]
[66]CPA, s 281(1).
We consider that the fact that the judge did not refer specifically to the period of 202 days doubly warranted detention does not demonstrate that he failed to take it into account. The judge had been informed in the course of the plea of the relevant 202 day period, and, as his sentencing remarks show, was aware of the dictates of totality.
In any event, even were we of the view that the judge had indeed failed to take the period of 202 days into account, we consider that no different sentence should be imposed.
Ground 1 cannot be upheld.

Sentence ground 2: Comparison to hypothetical mid-range offence of murder

Murder is a standard sentence offence.[67] For present purposes, the standard sentence is 25 years’ imprisonment.[68]
[67]Crimes Act 1958, s 3(2); Sentencing Act 1991, s 5A.
[68]Crimes Act 1958, s 3(2)(b).
In his sentencing remarks, the judge said:[69]
I have had regard to the standard sentence for murder as one of the matters to be taken into account in arriving at the appropriate sentence for you on each charge by the process of instinctive synthesis. In doing so, I have applied the law as explained in Brown. It is clear that taking into account only its objective factors, charge 4 is a very serious instance of the crime falling above the middle range of seriousness for murder. As for charge 3, I of course bear in mind that it is clear that statutory or s 3A murder is not inherently less serious than intentional or common law murder. It is always a matter of considering the individual circumstances of a given case. I have already noted the seriousness of your crime of the murder of Ali Ali. Notwithstanding that, having considered charge 3 and taking into account only this crime’s objective factors, to my mind it would fall somewhat below the middle range of seriousness for murder.
[69]Sentencing Reasons, [97] (footnote omitted).
Counsel for the applicant submitted that, when sentencing for the murder of Ali Ali, the judge took into account only the objective factors. He then appeared to place the offence in charge 3 at a lower level than the ‘hypothesized mid-range of seriousness’, and the offending involved in charge 4 (Hasan’s murder) at a higher level than the hypothesized mid-range of seriousness. That, counsel contended, was an impermissible comparative exercise, and involved a two-stage process that is inconsistent with the instinctive synthesis approach[70]. As a result, the judge fell into specific sentencing error, such that the sentencing discretion is reopened.
[70]Counsel cited Brown v The Queen (2019) 59 VR 462 (‘Brown’).
The respondent’s counsel accepted that, in the course of the plea, the judge and the applicant’s counsel indulged in a brief comparison between the applicant’s offences of murder and the hypothetical mid-range offending, and that the results of that comparison were set out in the sentencing remarks extracted above. Counsel submitted, however, that a fair reading of the sentencing remarks demonstrates that the judge appropriately treated the standard sentence for murder as no more than a legislative guidepost, and that the judge did not only have regard to the objective factors of the instant offences of murder. The following passage from the sentencing remarks demonstrates that the judge approached the matter as he was required to:[71]
The sentence I will pass upon you on charge 3 is lower than the standard sentence for murder. The sentence I will pass upon you on charge 4 is higher than the standard sentence for murder. In arriving at those sentences, I can indicate that I have taken into account all of the matters I am required to consider under s 5(2) of the [Sentencing Act 1991], including the standard sentence for murder. I have taken into account any mitigating factors which apply to your crimes. By the process of instinctive synthesis, I have arrived at the sentences I will shortly announce.
[71]Sentencing Reasons, [100] (emphasis added).
In Phongthaihong, the Court said:[72]
In Brown v The Queen[73] this Court, after reviewing the standard sentencing scheme, explained how the ‘standard sentence’ was to be given effect in the sentencing process. In summary, the standard sentence is a ‘legislative guidepost’, as is the maximum penalty.[74] The standard sentence does not affect the instinctive synthesis; does not permit ‘two-stage sentencing’; and does not require the court to identify the objective seriousness of the case under consideration for the purpose of comparing it with the ‘mid-range’ standard sentence.[75] The sentencing court is, however, required to explain how the sentence it imposes relates to the standard sentence.[76]
[72]Phongthaihong v The Queen (2021) 98 MVR 143, 152 [41] (Kyrou and T Forrest JJA) (footnotes as in original).
[73](2019) 59 VR 462; [2019] VSCA 286 (Brown).
[74]Brown at [4], [55] per Maxwell P, Priest, Kaye, T Forrest and Emerton JJA.
[75]See s 5A(1)(b) of the Sentencing Act 1991.
[76]See s 5B(5) of the Sentencing Act 1991.
Although the judge was not required to identify the objective seriousness of the case under consideration for the purpose of comparing it with the ‘mid-range’ standard sentence, we do not consider that his discussion involved any error in the sentencing process. When his sentencing reasons are read in full, it is plain that the judge understood that the standard sentence is to be treated as: a ‘legislative guidepost’, having the same function as the maximum penalty; does not affect the established ‘instinctive synthesis’ approach to sentencing; does not require or permit ‘two-stage sentencing’; and does not otherwise affect the matters which the court may, or must, take into account in sentencing. The judge said that he had regard to the mitigating factors and arrived at the sentences he imposed through a process of instinctive synthesis.
In any event, even if we had been persuaded that there was some error in the judge’s sentencing methodology,[77] we are not satisfied that any different sentence should be imposed.
[77]See Brown, 474 [42].
We would not uphold ground 2.

Conclusion

The applications for leave to appeal against conviction and sentence will be refused.
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[2023] VSCA 88

27 April 2023