Wong v The State of Western Australia
[2011] WASCA 56
•14 MARCH 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WONG -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 56
CORAM: McLURE P
BUSS JA
MAZZA J
HEARD: 23 NOVEMBER 2010
DELIVERED : 14 MARCH 2011
FILE NO/S: CACR 90 of 2010
BETWEEN: CHRISTINE WONG
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :McKECHNIE J
File No :INS 7 of 2010
Catchwords:
Criminal law - Appeal against conviction - Whether direction to jury infringed the principle that a jury must be free to deliberate without pressure being imposed upon them - Whether trial judge directed jury about the sequence in which it could consider alternative charges
Legislation:
Criminal Appeals Act 2004 (WA), s 30(5)(a), s 30(5)(b)
Criminal Code (WA), s 7(c), s 8, s 279(1)
Criminal Procedure Act 2004 (WA), s 105, s 114
Result:
Leave to appeal refused on ground 2
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Mr J A Scholz
Solicitors:
Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Black v The Queen [1993] HCA 71; (1993) 179 CLR 44
Peers v The Queen [1999] WASCA 295; (1999) 108 A Crim R 573
Simms v The Queen [2004] WASCA 237; (2004) 148 A Crim R 433
Stanton v The Queen [2003] HCA 29; (2003) 198 ALR 41
Tangye v The Queen (1997) 92 A Crim R 545
McLURE P: I agree with Mazza J.
BUSS JA: I agree with Mazza J.
MAZZA J: The appellant was charged with murdering her father and, in the alternative, with his manslaughter. On 22 April 2010, after a trial before McKechnie J and a jury, the appellant was convicted of murder. This was the appellant's third trial. In the two previous trials, each jury had been unable to reach a unanimous verdict. The appellant now appeals against her conviction on two grounds. They are:
Ground 1
The learned trial Judge erred and there was a miscarriage of justice when, in his directions to the jury (t-s 220), he offended the principle enunciated in Black v The Queen (1993) 179 CLR 44 and, in so doing, created a real risk of interfering with the jury's freedom to deliberate without pressure being placed on them.
Ground 2
The learned trial Judge erred, and there was a miscarriage of justice, when he directed the jury contrary to the principle stated in Stanton v The Queen (2003) 77 ALJR 1151;
Particulars:
2.1His Honour erred when he directed the jury to only consider the charge of manslaughter if they found the Appellant not guilty of murder (t-s 209);
2.2The jury were free to consider the charges in any particular order;
2.3His Honour's failure to tell them of that was an error and was not later ameliorated (t-s 219).
Leave to appeal has been granted on ground 1. The question of leave on ground 2 was referred to the hearing of the appeal.
Background
In 1997, the deceased was convicted of 22 offences of a sexual nature against the appellant over a period of approximately three years, when the appellant was aged between 9 and 13 years. The deceased was initially sentenced to 11 years' imprisonment, but that sentence was reduced on appeal to 9 years. The deceased was released from prison on parole in approximately October 2001. At some point after his release,
he moved to Bunbury. The appellant came to know where he lived.
In June 2008, the appellant was sharing accommodation in a Perth suburb, with a man named Tony Burns. Their relationship at that time was platonic, although it appears Mr Burns wished to take the relationship further.
On the evening of 26 June 2008, the appellant and Mr Burns argued. During the course of that argument the appellant disclosed to Tony Burns that she had been sexually abused by her father. Burns offered to physically harm the deceased as an act of revenge. The appellant agreed to this offer. The appellant and Mr Burns then travelled from their address in Perth to Bunbury in an unlicensed car owned by the appellant.
Upon arriving in Bunbury, the appellant directed Mr Burns to the deceased's address. Burns entered the premises and, with a knife, inflicted two stab wounds to the deceased's neck. One of these stab wounds severed the deceased's jugular vein, causing his death.
At some point after Burns had entered the premises, the appellant went inside. She saw that the deceased was bleeding profusely from a wound to the neck. She grabbed the knife used by Burns and stabbed her father through his right hand. This wound was not fatal.
The appellant and Mr Burns then left the deceased's premises and drove back towards Perth. During the return journey, the appellant threw the knife that was used to stab the deceased out of the car window.
The appellant did not give evidence at trial, but a recording of an interview she had with the police on 30 June 2008 was played to the court and admitted into evidence.
In this interview, the appellant told the detectives that she was aggrieved by the sentence which had been imposed upon her father, believing that it was not long enough.
She told the police that she and Mr Burns discussed what was going to happen to the deceased. She said (blue appeal book, page 116):
He [Burns] said he was going to bash him and that he might cut off a finger or you know, gouge out an eye or anything [sic] like that.
She said that as Mr Burns got out of the car, before entering the deceased's house, he asked her (blue appeal book, page 116):
[W]hat do you want me to do, chop of [sic] a finger or gouge out his eyes[?]
She said she replied, 'Yeah'. She told the police that after Mr Burns left the car she stayed there for a period of time, but entered the deceased's premises when she heard what she described as 'squeals' coming from inside.
She said that she entered the premises through the back door, and went into a room where she saw her father sitting on a chair with blood 'pouring out' of his neck.
She said that she stabbed him in the hand because she 'wanted to do something [herself] to get satisfaction' (blue appeal book, page 121).
The appellant told police that she did not tell Mr Burns to kill her father, nor did she want him killed.
The appellant told police that people in the past had threatened to hurt her father, but they had 'never come through with it' (blue appeal book, page 69). She said that after the incident she felt that she 'owed [Burns] something' and that, as a reward for what he had done, she had sex with him.
An admission was made at trial, before the jury, and on behalf of the appellant, that in March 2009, Burns pleaded guilty to murdering the deceased and that he had been sentenced to life imprisonment with a minimum of 11 years to be served before becoming eligible for parole.
The appellant was charged with murder under s 279(1) of the Criminal Code (WA) as it then stood, which provided:
279.'Murder', meaning of
Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say -
(1)If the offender intends to do to the person killed or to some other person some grievous bodily harm;
…
is guilty of murder.
Section 114(4) of the Criminal Procedure Act 2004 (WA) provides, now and at the time of trial, that a jury cannot return a majority verdict on a charge of murder.
The State's case at trial
The State's case on the charge of murder was that the appellant and Mr Burns had entered into an agreement to inflict grievous bodily harm upon the deceased. The motive for what they planned to do was revenge for the sexual abuse the deceased had committed upon the appellant. The State's case was that Burns unlawfully killed the deceased with an intention to do grievous bodily harm and was the principal offender, and that the appellant had aided him in the commission of the offence. She was therefore criminally responsible pursuant to s 7(c) of the Criminal Code (expressed at trial as s 7 of the Criminal Code). The State alleged that the appellant knew that Burns intended to do grievous bodily harm to the deceased, and with that knowledge aided him by, amongst other things, providing the motor vehicle in which they travelled to Bunbury, directing Burns to the deceased's address, and by aiding him with her presence and encouragement.
The State's case with respect to the alternative charge of manslaughter was that if the jury were not satisfied beyond reasonable doubt that the appellant aided Mr Burns in murdering the deceased, at the very least the two of them had a common intention to inflict some physical harm upon him. The State alleged that the appellant and Mr Burns had formed a common intention to assault the deceased, in conjunction with one another, and that in the prosecution of that purpose, the deceased's unlawful death was a probable consequence: s 8 of the Criminal Code.
The defence case at trial
The defence case was that although the appellant hoped that Mr Burns would inflict serious injury upon the deceased, she had been let down before and did not trust Mr Burns to do what he said he would. The defence case was that there was no agreement as alleged by the State, or at all, and that the appellant did not aid Burns. It was submitted that Burns 'went way out on a limb on his own' when he entered the deceased's house and stabbed him. The defence submitted that the State had not proved beyond reasonable doubt that the appellant knew that Burns intended to do grievous bodily harm to the deceased and that she did not aid him, as required by s 7(c) of the Criminal Code.
As to the alternative count of manslaughter, it was submitted that there was no common intention formed by the appellant and the deceased.
The impugned directions and the parties' submissions in relation to them
His Honour divided his summing up into five parts, being:
(1)the fundamental principles;
(2)the indictment and '[h]ow the prosecution puts its case and the possible variations and [permutations] that are available' (ts 201);
(3)matters that arise from the evidence;
(4)a short summary of the competing cases; and
(5)concluding remarks and how the verdict will be taken.
Ground 1
The impugned direction, the subject of ground 1, was given during the fifth and final part of the summing up. After informing the jury that he had come to his final remarks, his Honour said:
In respect of whichever count you're considering if you have clinically examined the evidence and there remains in your mind a reasonable doubt as to the accused's guilt on that count, it is your duty to bring in a verdict of not guilty. If after that examination there remains in your mind no reasonable doubt about the guilt of the accused on that count, it is your duty to return a verdict of guilty on that count. Whether or not you have a reasonable doubt is a matter for each of you. Only if each of you is satisfied beyond reasonable doubt on the count you are considering can you return a verdict of guilty. Only if each of you is not satisfied beyond reasonable doubt on the count that you are considering can you return a verdict of not guilty. In other words, whatever verdict you return must be a verdict upon which all of you agree. Whether guilty or not guilty it must be a verdict upon which all of you agree.
Each of you has an equal voice and an equal vote and all of you have opinions which deserve to be listened to. When you go into the jury room, you will take the exhibits which largely form this case but also the impressions of the witnesses. As I say, probably not very important in this case, as they were all experts and their evidence was really unchallenged, rather different aspects of it was brought out. And you will have the relevant forensic evidence with you. And you'll have all the time you need to discuss. There's something I need to mention to you. You may know, judges for years worked on the basis that juries didn't know this, and then one of my daughters who was selected for jury told me that she'd been taught it in politics in school, so now I tell you all. You may have heard that there are circumstances where a judge can, after a period of time, take a verdict of less than 12 of you; a majority verdict. Well, that applies to most offences in Western Australia, but it does not apply to the charge of murder. On murder, the only verdict I can accept, whether guilty or not guilty, is a verdict on which all 12 of you agree. So there is no point, should you get to a majority, in holding out, because I can only accept a verdict of all 12 of you; a unanimous verdict. And you will have whatever time you need to think and discuss. This is obviously an important case (ts 219 ‑ 220). (emphasis added)
Immediately after the jury retired to deliberate, defence counsel raised with his Honour the direction. Defence counsel said he was concerned 'about the situation where one or two people or maybe more, I don't know, take a contrary view to the majority and feel that there is no point holding out. Because of what your Honour has said to them' (ts 223).
His Honour responded as follows:
Well, I understand the point, but I don't think it's necessary for me to redirect them. In fact, I think that if I did draw attention to it, I'd probably, if there is any mischief, which I doubt, I would probably compound it. But I don't actually think that my directions would leave them in any doubt as to their duty or prevent them, in due course, from deadlocking (ts 223).
The appellant submitted that this direction infringed the fundamental rule that a jury must be free to deliberate without any form of pressure being imposed upon them: Black v The Queen [1993] HCA 71; (1993) 179 CLR 44, 46. It was submitted that his Honour's directions conveyed to a reasonable juror that if such a juror found him or herself in the minority, his Honour was directing that juror that there was no point in holding to their view and they must conform to the view of the majority.
The respondent submits that a reasonable juror would have understood his Honour as doing no more than explaining that there could be no majority verdict, whether guilty or not guilty, on the charge of murder.
Ground 2
The impugned direction, which is the subject of ground 2, was made during the second part of the summing up. In this part, his Honour instructed the jury as to the elements of each offence in the order that they appeared on the indictment. He explained to the jury that in respect of the charge of murder, the appellant was alleged to be an aider by virtue of s 7 of the Criminal Code. He also explained what the State needed to prove beyond reasonable doubt, for the appellant to be found guilty of this offence as an aider.
Immediately after his Honour directed the jury about s 7 of the Criminal Code, he gave the direction which is the subject of ground 2. He said:
However, I'm not at the moment dealing with the evidence but dealing with the elements of the offence that would need to be proved by the State before you could find the accused guilty of murder. And they are, firstly, as I have said and I repeat, that Burns in fact murdered the deceased and then, has the State proved that the accused was a party to that, that she entered into an agreement, knowing that Burns intended to do grievous bodily harm, she, in that knowledge, lent her aid to his enterprise. If the State established that it would be open for you to convict her of murder. If the State failed in proving that then the proper verdict would be not guilty of murder and you would then consider whether the State has established a case of manslaughter (ts 209). (emphasis added)
He then went on to direct the jury on s 8 of the Criminal Code, telling them what was contained in the provision and what the State needed to establish beyond reasonable doubt before the appellant could be found guilty of manslaughter by virtue of that provision.
Once his Honour had given the jury directions concerning the elements of the offences and s 7 and s 8 of the Criminal Code, he provided each juror with a handout, which had already been provided to counsel, that set out in shortened form the directions he had just given. This document contained the elements of the offences and posed a series of questions dealing with the appellant's alleged liability under s 7 and s 8 of the Criminal Code. These questions crystallised the issues which the jury needed to decide in order to determine the appellant's guilt of either murder or manslaughter. The handout is brief and is as follows:
R v WONG
In this case, the State alleges that the accused's liability for an offence may arise under the Criminal Code s 7 or s 8.
In each case the State must first prove that Burns unlawfully caused the death of the deceased before you can return a verdict of manslaughter or murder.
In order to establish that the accused is guilty of murder, the State must also prove that Burns intended to cause the deceased grievous bodily harm.
These matters are not really put in issue but it is still necessary for the State to prove them.
When the expression 'Has the State proved...' is used it means 'Has the State proved to your satisfaction beyond reasonable doubt'.
Liability under Criminal Code s 7
1.Has the State proved that Burns and the accused entered into an agreement to do the deceased grievous bodily harm, that is any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause, or be likely to cause permanent injury to health.
2.If yes, to question 1, has the State proved that, with knowledge of Burns' intention to cause the deceased grievous bodily harm, the accused aided Burns in carrying out the agreement.
3.If yes, the accused is guilty of murder. If no, the accused is not guilty of murder.
Liability under Criminal Code s 8
If you concluded under Criminal Code s 7 that the accused is guilty of murder it is not necessary to consider liability under s 8.
If you have a reasonable doubt that the State has proved its case under s 7 then consider Criminal Code s 8:
4. Has the State proved that Burns and the accused formed a common intention to prosecute an unlawful purpose in conjunction with one another?
5.If no, then the accused is not guilty.
6.If yes to question 4, has the State proved that it was a probable consequence of the common intention that Burns would unlawfully kill the deceased?
7.If yes to question 6, the accused is guilty of manslaughter. If no to question 6, the accused is not guilty.
His Honour took the jury through the document. During this process, he said:
And by the way, Mr Foreman and ladies and gentlemen, how you go about approaching the evidence, what it means to you, is a matter entirely for you. I have done this [prepare and provide the document] in the hope that it will assist, because I think it's logical, but you can go about the evidence in any way you please. But in the way I've done it, the first question is ... (ts 211).
It was submitted by the appellant that the direction, the subject of ground 2, in particular the part that I have emphasised, contravened another aspect of the jury's fundamental principle of free deliberation by requiring the jury to first consider the charge of murder, and only if they acquitted of that charge could they then consider the charge of manslaughter.
The respondent submitted that his Honour did not require the jury to reason sequentially, as alleged by the appellant, and in fact directed the jury that the way they went about their task was entirely a matter for them.
The law
Both grounds of appeal have in common an allegation that the relevant direction infringed the fundamental principle that a jury must be permitted to freely deliberate. However, each ground of appeal raises a different facet of this principle.
Relevantly to ground 1, it is impermissible for undue or inappropriate pressure to be applied to a jury's deliberations by a trial judge. Each juror has a duty, in accordance with their oath or affirmation, to give a true verdict according to the evidence: s 105 of the Criminal Procedure Act. The words 'true verdict' mean that each juror must reach a verdict based on the evidence according to his or her own conscience. No juror who comes to a verdict in accordance with their oath or affirmation, who is in a minority, is bound to bend to the will of a majority. Nor can a juror be pressured to subordinate their personal view to that of the majority: Black v The Queen (50 ‑ 51) (Mason CJ, Brennan, Dawson & McHugh JJ), (56) (Deane J); and Tangye v The Queen (1997) 92 A Crim R 545, 550 (Hunt CJ at CL).
A trial judge must be careful to avoid giving directions which may be misunderstood as encouraging or instructing a minority juror to join with the majority in a verdict which is not truly held by that juror: Black v The Queen (56) (Deane J).
The test as to whether a direction imposed undue or inappropriate pressure upon a jury's deliberations was set out by Owen J in Peers v The Queen [1999] WASCA 295; (1999) 108 A Crim R 573 [12] as follows:
In my opinion, the question whether a direction offends this fundamental principle and therefore is capable of placing undue pressure on minority jurors can be determined only by an examination of the effect the particular words used may have on a reasonable juror when read in the context of the whole direction given by the trial Judge. The Court must examine the phrases objected to in their full context: R v Biset, unreported; FCt SCt of NSW; Library No 607; 19 August 1994.
With respect to ground 2, jurors must be free to organise their individual processes of reasoning, or their discussions as a group, in whatever manner they regard as convenient. Accordingly, a trial judge cannot dictate to a jury a sequence of deliberation, although he or she may suggest an approach to their deliberations.
In a case like this, where a verdict to an alternative charge is open, a trial judge must not direct the jury in such a way as to be reasonably understood as directing the jury that an alternative charge must not be considered until the more serious charge is decided. However, a trial judge will not be dictating to a jury a sequence of deliberation merely by informing them of the sequence in which, at the point of final decision, they were to deal with the possible verdicts available to them: Stanton v The Queen [2003] HCA 29; (2003) 198 ALR 41 [34], [38] (Gleeson CJ, McHugh & Hayne JJ); and Simms v The Queen [2004] WASCA 237; (2004) 148 A Crim R 433 [50] (Jenkins J).
Merits of ground 1
Without the full context, the impugned direction could convey the meaning contended by the appellant's counsel. However, when taken in its full context, I do not think that a reasonable juror would have understood the direction in that way.
The appellant did not submit, and could not realistically have submitted, that his Honour's direction on unanimity was in any way defective. Patently, it was not. His Honour emphasised in a series of statements, made shortly before giving the impugned direction, the individual responsibility of each juror to decide the case. His Honour told the jury '[w]hether or not you have a reasonable doubt is a matter for each of you' (ts 219) (emphasis added). Immediately after this statement his Honour said:
Only if each of you is satisfied beyond reasonable doubt on the count you are considering can you return a verdict of guilty. Only if each of you is not satisfied beyond reasonable doubt on the count that you are considering can you return a verdict of not guilty (ts 219). (emphasis added)
A short time later his Honour continued, '[e]ach of you has an equal voice and an equal vote and all of you have opinions which deserve to be listened to' (ts 219) (emphasis added).
After making a brief reference to the expert evidence, his Honour shifted to the issues of the time the jury could take to deliberate and the possibility of a majority verdict. His Honour told the jury that they could have 'all the time' they needed to discuss the case. In other words, he was conveying that there was no pressure of time upon them to deliver their verdicts.
His Honour then chose to tell the jury that a majority verdict was not open to them. His Honour informed the jury that if it had heard that in some cases a verdict of less than 12 could be accepted 'after a period of time', that was not the position in this case. His Honour explained that in the present case only a unanimous verdict could be accepted.
It is at this point that the impugned direction was given. Immediately following the impugned direction, his Honour made another reference to time. He said '[a]nd you will have whatever time you need to think and discuss' (ts 220).
The crucial question is what effect the impugned words would have had on a reasonable juror, bearing in mind that a reasonable juror may in some circumstances misunderstand what a trial judge has said.
It cannot be overlooked that his Honour gave a clear, strong and unequivocal direction, shortly before the impugned direction, about the individual responsibility that each juror had to decide the case. The impugned direction was given in the context of his Honour telling the jury that they were under no pressure of time and that while in some cases a majority verdict could be given after a period of time, that was not the position on a charge of murder. When viewed in this light, the reference to there being no point in 'holding out' was using the expression 'holding out' in the sense of holding out for a time where a majority verdict could be accepted. It was not a reference to 'holding out' in the sense of refusing to yield to the will of the majority.
In hindsight, it would have been better not to use the words 'holding out', but I am satisfied that the use of the words in the direction, in their full context, would not have misled a reasonable juror into thinking that he or she had to subordinate their view to the will of the majority.
The impugned direction was brought to his Honour's attention immediately after the jury retired. Out of caution, a redirection could have been given without compounding any mischief. The jury could have been told that they are obliged to remain true to their individual oaths or affirmations and that nothing his Honour had said required a minority juror to join with the majority in order to produce a unanimous verdict.
Ground 1 must be dismissed.
Merits of ground 2
Mr Watters, in his oral submissions on behalf of the appellant, conceded that ground 2 on its own would not, if established, constitute a miscarriage of justice. However, he submitted that in combination with ground 1, a miscarriage of justice had occurred.
As I have already noted, the impugned direction, which is the subject of ground 2, was made during the second of the five parts into which his Honour had divided his summing up.
His Honour set out, in logical fashion, the elements of each of the offences in the indictment and explained to the jury the requirements of s 7 and s 8 of the Criminal Code. He identified the real issues which the jury needed to decide in order to determine the appellant's guilt with respect to either murder or manslaughter. He encapsulated these directions in the handout. The impugned statement, which is the subject of ground 2, must be read in conjunction with what his Honour said to the jury while he was taking them through the handout. At ts 211, his Honour said:
And by the way, Mr Foreman and ladies and gentlemen, how you go about approaching the evidence, what it means to you, is a matter entirely for you. I have done this in the hope that it will assist, because I think it's logical, but you can go about the evidence in any way you please.
The reference to 'this' is a reference to the handout and this direction makes it clear that the jury was not bound to deliberate in the way his Honour suggested.
The handout reflected the oral directions given earlier, including the impugned direction. His Honour's statement at ts 211 would clearly have conveyed to a reasonable juror that the jury was free to deliberate as they saw fit.
In context, there is nothing in what his Honour said, either in the impugned direction or at any other place in the summing up, which would have given the jury the impression that they had to deliberate in any particular order.
In my opinion, ground 2 has no merit. I would not grant leave in relation to it.
Conclusion
Neither ground of appeal has been established. Accordingly, the appeal must be dismissed.
Orders
I would make the following orders:
1.Leave to appeal is refused on ground 2.
2.The appeal is dismissed.
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