Avis v The Queen [2002] WASCA 45

Beck v The Queen (1989) 43 A Crim R 135

Honeybone v The Queen, unreported; CCA SCt of WA; Library No 950224; 10 May 1995

Mogg v The Queen [2000] QCA 244; (2000) 112 A Crim R 417

Ross [1922] HCA 4; (1922) 30 CLR 246

Winning v The Queen [2002] WASCA 44

1 MALCOLM CJ: This appeal against the appellant's conviction on 6 April 2001 of the wilful murder of one Lister was originally listed to be heard together with the appeal by the appellant's co-accused Mark Douglas Winning on 10 December 2001. On that date, however, counsel who then appeared for the appellant sought and obtained leave to withdraw and the appellant's appeal was adjourned to a date to be fixed: Avis v The Queen [2002] WASCA 49. On 7 March 2002 this Court (Malcolm CJ, Steytler J and Olsson AUJ) allowed Winning's appeal, quashed his conviction and ordered a new trial.

2 At their trial, each of Winning and the appellant alleged it was the other who was guilty of the offence. Winning sought to show that it was more probable that the appellant was guilty of the offence and sought to establish it both by his own direct evidence and proof of the appellant's antecedent criminal record. The trial Judge ruled that the record was inadmissible for that purpose. The Court of Criminal Appeal unanimously concluded that the record was admissible for the relevant purpose and that its exclusion in the circumstances of the case resulted in a miscarriage of justice because it could not be fairly said that Winning had not been deprived of a chance of acquittal: see per Olsson AUJ at [26] - [43], with whom both Steytler J and I agreed.

3 The appellant's version of the facts was that Winning and the third co-accused Harris, who was the victim's de facto partner and who was also convicted, wanted the victim, Mr Lister, killed and that Mr Winning attempted to enlist him to assist in the killing. As Murray J has made clear, the appellant said that he rejected that proposal out of hand and placed strict limits on the extent to which he was prepared to be involved, namely, that Lister was to be taught a lesson for his violence towards Ms Harris by the use of threat, and, if necessary, by "slapping him around", which was meant by "giving Lister [the deceased] a hiding".

4 The Crown case against each of the accused was that the conduct of each of them after the victim had been killed was relevant as proof both of their guilt as accessaries after the killing and, when taken together with their observed association and proved conduct before the killing, established that, throughout, they were acting as a team both to kill Lister and then to hide or remove the evidence of his death, or anything that might implicate them in it. Murray J has detailed the case against the appellant in relation to these matters which, in my view, was compelling. I agree with Murray J for the reasons he has succinctly and comprehensively expressed that none of the grounds of appeal had been

made out with the consequence that the appeal should be dismissed. I also agree with the comments made by Steytler J in respect of ground 2.

5 MURRAY J: The appellant was indicted jointly with one Winning and a Ms Harris with wilfully murdering one Lister on 24 September 1999. They were jointly tried before Templeman J and a jury between 6 March and 6 April 2001. On the last-mentioned date all three were convicted of wilful murder. I need make no reference to the fate of Winning and Harris, but Avis was sentenced to life imprisonment with a minimum period of 17 years before he becomes eligible for parole, the sentence to commence on 13 October 1999.

6 This is an appeal against conviction. The grounds are as follows:

"1. The Learned Trial Judge failed to adequately sum up the appellant's case to the jury.

(a) put fairly before the jury the case which the appellant made at trial;

(b) remind the jury of the main arguments of the appellant's counsel;

(c) sufficiently address the legal consequences of the appellant's assertion that at the time the deceased was killed the appellant was not present and was not aware of any plan or intention on the part of his co-accused to kill the deceased.

2. The Learned Trial Judge failed to direct the jury that before the appellant could be found guilty of any offence as an aider pursuant to section 7(c) of the Criminal Code, the appellant's presence had to, as a matter of fact, aid the principal offender.

3. The Learned Trial Judge failed to direct the jury that a verdict of murder was open on the facts.

The Learned Trial Judge failed to refer to evidence upon which it would be open to find that the plan between the appellant and his co-accused, Winning, was not to kill the

deceased but to do injury which amounted to grievous bodily harm.

4. The learned Judge failed to adequately address the jury as to the way it should approach the post-offence conduct of the appellant.

(a) The learned trial Judge failed to inform the jury that the appellant's post-offence conduct, including the telling of lies to his defacto [sic] wife and the police, could only be used as proof of the appellant's guilt if they were satisfied that there was no other explanation consistent with innocence for it and the only reason for the conduct was that he had committed the offence of wilful murder.

(b) The jury should have been told that such post-offence conduct, as relied upon by the Crown, could stem for reasons other than guilt and that if they accepted those other reasons they should not use the evidence as proof of the appellant's guilt of wilful murder."

7 Lister was stabbed to death on the night of 24 September 1999. His body was not recovered until 15 October. He had been buried in the Gnangara Pine Plantation in a seated position. The blade of a knife was embedded in his neck. At post-mortem the forensic pathologist, Dr Margolius, identified three stab wounds. One was to the right front of the chest. It was a deep wound which had penetrated the right lung. There were two wounds to his neck, one of which contained the blade of the knife. Again, this was a substantial wound which had penetrated a jugular vein and the carotid artery. The second wound to the neck was close to the first and not terribly deep. It appeared that the progress of the knife had been stopped by the deceased's backbone.

8 Each of the wounds was potentially fatal. Dr Margolius thought that the one in the chest would have been inflicted first and it seemed clear that the wound in the neck which still contained the knife blade was the last inflicted. It was probable that all the wounds had been inflicted by the same person.

9 As opened, the Crown case was that Lister and Harris were de facto husband and wife. They lived in Craigie with Harris's son Nathan. Both were habitually heavy drinkers and frequent patrons of the Whitfords Tavern. They were both there on 23 September 1999. During the evening they argued. It appears that violent arguments between them were not unusual. Lister was ejected from the tavern by a staff member. He walked the kilometre or so to the unit where they lived and fell asleep in a chair in the lounge room.

10 The incident between Lister and Harris had been observed by, among other patrons, Avis and Winning, who were partners in a handyman business. After the argument Ms Harris remained at the tavern. She, Avis and Winning left at closing time. They were seen in the carpark speaking together. When Lister was ejected from the tavern, Harris had telephoned her son Nathan, then 14, at home, told him that Lister was returning home and advised him to leave. He apparently did not do so and was still at the unit when Lister arrived home. Avis and Winning gave Harris a ride home in their motor vehicle.

11 It was the Crown case that after leaving the tavern, and before they arrived at the unit, Harris sought the help of Avis and Winning to kill Lister. The Crown case was that the two men agreed. When they arrived at the unit, Harris remained in the car while Avis and Winning knocked on the front door. It was answered by Nathan. He was told to leave the house and take his dog for a walk. He did so. It was by now early in the morning of 24 September 1999.

12 The knife which was used to fatally wound Lister as he slept in the lounge chair, causing his death within minutes, was obtained from the kitchen of the unit. After Lister was killed, Harris came into the unit and the three agreed to dispose of the body in the Gnangara Pine Plantation. It was wrapped in a blanket and the two men put it in Lister's vehicle and, using that vehicle and theirs, drove to the Gnangara Pine Plantation where they dug a shallow grave and Lister was buried. After Lister was buried, Avis and Winning drove his car into a tree at the pine plantation, dowsed it with petrol and set it alight. They then left the area in their vehicle.

13 In the meantime, the Crown contended, Harris cleaned the blood in the lounge room and put off Lister's employer when he arrived, as usual, to collect Lister on the following morning, with a story that they had argued and that Lister had left. Later that day Avis and Winning returned, broke up the lounge chair and stored it in a green garbage bag in a shed at the back of the unit, collected anything from the house which it appeared might be contaminated by Lister's blood and disposed of most of those items in an industrial bin at the rear of a nearby hardware store. They buried two knives at the address where they were erecting a fence for a client. A few days later they disposed of Avis's T-shirt that he had been wearing on the night of 23/24 September.

14 On 28 September 1999 Ms Harris and her son Nathan left for New South Wales by bus. She left a note in the unit which read:

"Dear Howard, well, this time I'm leaving for good. I cannot put up with the beatings any more. Nathan and I will be staying at a friend's place for a while until we find somewhere. I can't say it has been nice knowing you because it hasn't. I will get the rest of our stuff soon. Julie. Don't worry I will pay half of the bills."

15 Lister's ex-wife and his employer reported him missing on 8 October 1999. The police investigation into his disappearance commenced on 12 October. Meanwhile, a couple of nights after 23/24 September 1999 Avis told his de facto wife, a woman named Bryan, that he had "done something bad". He would say no more at that time, but on the day that he went to the police (he went with Winning on 13 October 1999) Avis told her that he was going to gaol because a man had been murdered. He explained that he had met a woman at the pub, he and Winning had given her a lift home, she had explained that her de facto husband was abusive and violent towards both her and her son and she said she was frightened to go inside. Avis said that he and Winning remained outside while she went in. In a little while she came out and said she had killed the man. They did not believe her. They went into the house and there was indeed a man inside dead. He and Winning had placed the man in his own vehicle, which was then driven away by Harris. They followed her, but lost her at a pine plantation. Avis and Winning then went together to the police station.

16 The Crown case was that that was a false story. In substance, it was the story Avis and Winning both told to the police initially when they were interviewed. As the interviews continued over a lengthy period of time, the stories changed. Ultimately, Winning said that it was Avis who stabbed Lister in his presence while Harris was out of the unit. Avis, on the other hand, ultimately told the police that the agreement was that, because of Harris's complaints that Lister was violent towards her, he and Winning would give Lister a "hiding", by which he said he meant that they would slap him around. Avis said that Harris was outside the unit. He said that while Winning was doing something in the kitchen, he went to the toilet. When he returned, Lister was in the chair choking on his own blood. Avis tried to help him by attempting to stem the flow of blood with a towel, but Winning said, "He'll be dead in a few minutes." Avis agreed that he assisted to dispose of the body and he assisted with the burning of Lister's car.

17 There was other evidence of out-of-court statements by the appellant. Bryan testified that about two days after Avis went to the police station he telephoned her and told her that the story he had originally told her was untrue. He told her that he and Winning had met Harris at the tavern and that they had driven her home. During the course of that journey she had complained about Lister's violence and said she was frightened to go inside the house. Winning suggested that they take her home and make sure that Harris was okay. They all went in. Lister was asleep in the chair. The boy was there initially, but soon left with his dog after Harris told him to go. He then repeated the story about using the toilet while Winning was in the kitchen. When he returned, Winning said they should go because, "It's all sorted." Avis went into the lounge room, saw Lister in the chair bleeding and attempted to staunch the flow of blood, but Lister died. After he was dead Harris came into the room, kicked Lister in the back and said, "Now, you can't beat me or my son up, can you?" He then told the story of the burial of the deceased and the burning of his car.

18 The Crown prosecutor said in opening that the Crown could not, upon the evidence available to it, identify whether Avis or Winning fatally stabbed Lister, but he said that one of those two men killed Lister, intending to cause his death. The Crown case was that the other, knowing that that was the intention of the principal offender, aided or assisted the killing to be carried out. Harris, it was contended, "procured or encouraged" the two men to kill Lister.

19 At trial the only direct evidence against Avis, apart from the extent to which he implicated himself in out-of-court statements, was the evidence given by the co-accused Winning. The appellant himself did not give evidence and nor did Harris. Winning's evidence about the night in question was that he was at the tavern with Avis. He saw Lister ejected and he later saw Avis and Harris together. It seemed to him that Avis was interested in Harris and when it was arranged that she should be given a lift home, he went because Avis and he were using his car. During the journey there was talk between Avis and Harris about giving Lister a beating. At one stage Avis put to him that Lister should be killed because he had been bashing Harris and her son. Later it was put to him that he should assist to beat the man up and give him "a good warning". Winning said that he agreed to "slap him around".

20 When they arrived at the unit, Avis went to the door, which was answered by the boy. Avis sent him away and he left with the dog. Winning followed Avis into the house. Winning went to the toilet. When he came out, Avis was in the kitchen. Avis took some knives. He gave one to Winning but Winning put it on the table. Avis went into the lounge room. Winning did not follow. He could not see what was happening. He heard a noise as if someone was coughing. As he entered the lounge room, he saw Avis stabbing at Lister. He saw four or five blows "to the abdomen" and "it looked like to the throat". Lister was apparently bleeding from the throat and sounded as if he was choking. Shocked at the scene before him, Winning left the room and the unit. He was followed by Avis. Avis went to the car and spoke to Harris. He said, "It's done." At Avis's insistence Winning assisted to dispose of the body and burn Lister's car. On the following day he assisted with the cleaning of the unit, the disposal of the lounge chair, the disposal of other bloodstained items in the bin by the hardware store and the burial of the knives which Avis had taken from the unit.

21 When Winning became aware that a police investigation was under way, he persuaded Avis that they had to go to the police and they concocted a story. On the way to the police they saw a solicitor who also advised them to go to the police. Avis was reluctant to go. Initially Winning told the police the concocted story, but ultimately he told them the truth, he said. His evidence at trial substantially coincided with the version of events he last gave to the police. So his defence was that Avis was the killer, that he had no part in it but that he was an accessory after the fact to the killing. Precisely the same defence was put forward by Avis, relying on what he had said to the police.

22 Of course, in this joint trial the Crown did not seek to rely on the evidence of Winning as being direct evidence of Avis's guilt of wilful murder, although the evidence was, of course, available to the jury in that way. The Crown prosecutor, however, closed as he had opened:

"As I said at the beginning, the Crown cannot say who actually killed Mr Lister, who actually wielded the knife. There is no objective evidence, no forensic evidence, no independent witnesses who can say what exactly happened in that room, in the lounge room, that night. The prosecution says that either Avis or Winning, the only two people in the room with Mr Lister, killed Mr Lister and the other person, that is either Avis or Winning, who was in the room at the same time, supported the killer ... ."

23 In his charge to the jury the trial Judge used a note setting out or summarising the various relevant provisions of the Criminal Code. His Honour clearly left to the jury four alternative verdicts as to the homicide, guilty of wilful murder, guilty of murder, guilty of manslaughter and not guilty. His Honour correctly distinguished between wilful murder and murder. His Honour included in his directions about murder an example which indicated that it might be an appropriate verdict in a case where the killer intended, not to kill, but "merely to beat up" the deceased. His Honour at no point suggested to the jury that the verdict of murder was foreclosed to them on the facts. He said that, "The person who actually did the stabbing, if it was one person, is guilty of the offence, whatever it might be, wilful murder, murder or manslaughter."

24 I turn to ground 1 and note first that counsel for Winning commenced to address the jury at just after noon on 30 March 2001. There was a luncheon adjournment and this address finished at 3.45 pm. The weekend then intervened. At just after 10 am on Monday, 2 April 2001 the jury heard an address from the Crown prosecutor. At just before noon on that day counsel for Harris addressed the jury. That address took half an hour, and the luncheon adjournment was then taken. At 2.10 pm counsel for the appellant commenced his address. The Court adjourned for the day about two hours later. Counsel resumed at 10 am on 3 April. He concluded at about 12.15 pm, whereupon the trial was adjourned until 9.30 am on 4 April, at which time Templeman J commenced his address.

25 I have read the lengthy address of counsel for the appellant. It was replete with argument as to why the evidence of Winning should be rejected and put very clearly to the jury that although they might find the appellant to be an accessory after the fact to a killing committed by Winning, he had no knowledge before the killing or at the time when it was occurring of what was going on, sufficient to make him guilty as a person who aided or encouraged the homicide. It was against that background that Templeman J came to discuss the evidence which related to each accused person.

26 His Honour summed up the case, insofar as it related to the appellant, by discussing, firstly, the circumstantial evidence put against Avis. His Honour then turned to the evidence of Winning. He reminded the jury of the main arguments put by the appellant's counsel as to why Winning's evidence should not be accepted, as in the result clearly it was not accepted by the jury. His Honour referred particularly to the fact that Winning was a co-accused, an accomplice, at least to the extent of being an accessory after the fact to a homicide, and that he had a clear motive for wanting to pass the blame onto the appellant. His Honour told the jury that they should scrutinise the evidence of Winning with care.

27 His Honour referred to Avis's account in the videoed interview. He told the jury that they must have regard to this material, even those parts of the interview which were self-serving. That was an appropriate direction in view of the "mixed" character of the answers provided at interview and, again appropriately, the trial Judge told the jury that they were entitled to have regard to the fact that the statements made were not on oath and not able to be tested by cross-examination. His Honour told the jury that that went to the weight of the statements made. Such directions have long been held to be appropriate: R v McGregor [1968] 1 QB 371.

28 Templeman J dealt with an issue about whether the appellant knew Lister. He had been identified by Mrs Lister, the deceased's ex-wife. The trial Judge gave appropriate directions about the dangers of acting on such evidence.

29 Finally, after dealing with the question of the appellant's guilt of some form of homicide as an aider, to which directions I shall return when discussing grounds 2 and 3, the trial Judge concluded the discussion of the case, so far as it related to the appellant, by dealing with the question of his guilt as an accessory after the fact. Involved in those directions was a reminder to the jury that the appellant's case was that he was an accessory after the fact to a homicide which had not involved him, but was committed by another. The trial Judge explained, in a manner which is not the subject of any criticism in this appeal, what was involved in the concept of an accessory after the fact and how the jury must determine, if they thought that was the extent of the appellant's liability, to what offence he was an accessory, depending upon what the jury found his state of knowledge about the intention of the principal offender was.

30 Finally, at the conclusion of his discussion of the case, so far as it related to Winning and then Harris, Templeman J concluded his directions to the jury with instructions about the taking of the verdicts. Those directions served to remind the jury that so far as the appellant, and indeed each of the other co-accused persons, was concerned it was open to the jury to return verdicts of guilty of wilful murder, guilty of murder, guilty of manslaughter, guilty of being an accessory after the fact to one of those offences or not guilty, although, as his Honour reminded the jury, "on the way the case has been put to you by the defence counsel, a finding of not guilty, I would suggest to you, is extremely unlikely ...". The jury retired to consider their verdicts at about 12.30 pm on 4 April. Upon the retirement of the jury, counsel for the appellant raised a number of points upon which redirection was sought. He made no complaint in terms of ground 1.

31 In my opinion, the ground cannot be made out. The duty imposed upon the trial Judge by the Criminal Code (WA), s 638 is, "to instruct the jury as to the law applicable to the case, with such observations upon the evidence as the court thinks fit to make."

32 That provision shortly puts the task of summing up to a jury in terms which the courts have adopted outside the reach of the Code. There are some useful obiter observations on the topic by a majority of the High Court in RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 at 637, where their Honours said:

"...The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence.

But none of this must be permitted to obscure the division of functions between judge and jury. It is for the jury, and the jury alone, to decide the facts. As we have said, in some cases a judge must give the jury warnings about how they go about that task. And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues. But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge's other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel."

33 The fundamental task is to ensure a fair trial. That will involve not only instructing the jury about the law, but enabling them to understand how it is that the accused person may be guilty of the offence charged in the indictment or any alternative open upon that indictment and why it is that the accused asserts that his guilt has not been established beyond reasonable doubt. So far as the accused is concerned, it is the case he or she makes which the jury must be given to understand. If that may be done by reminding the jury of the arguments of counsel, then that will be a convenient process, but there is no authority for the proposition that the trial Judge must again put to the jury the arguments of counsel, much less that he or she must do so as if they were propositions which appeal to the court.

34 In my opinion, this jury had fairly placed before them the case which the appellant was making, which was simply stated, and it must have been abundantly clear to the jury that if they thought, without necessarily accepting it to be the case, that the appellant might not have had any foreknowledge that the appellant was to be killed or seriously injured and that he was not present when Lister met his death, he could not be convicted of any form of homicide. There was no need for the trial Judge to regurgitate the arguments of counsel and counsel for the appellant at the trial did not contend that that was necessary.

35 As to ground 2, it is true that Templeman J did not direct the jury that before the appellant could be found guilty of any offence as a person who aided the principal offender to commit the offence, the encouragement and assistance given by the appellant had, as a matter of fact, to aid the principal offender. Such a direction would, in my opinion, have been wrong in law. The law in this regard is conveniently stated in Ward v The Queen (1997) 19 WAR 68 per Steytler J, with whom Kennedy and Franklyn JJ agreed.

36 In a case such as this, where it was alleged that the assistance or encouragement was given by supportive presence during the commission of an offence of homicide, the aider had not only to deliberately lend assistance to the commission of the offence, but he had to do so knowing the general nature of the offence being committed by the principal offender. The liability of the aider flows from his conduct with that knowledge. It has never been the law that, in addition, the principal offender must actually be encouraged or assisted in the sense that the commission of the crime was actually facilitated by the aid rendered by the accessory.

37 As to ground 3, the complaint is not that the trial Judge neglected to leave open to the jury the alternative conviction of the offence of murder. In the first place, his Honour made it abundantly clear that the principal offender would be guilty of murder if the killing was accompanied by an intention to do Lister some grievous bodily harm. Avis might have been found to be the principal offender on the basis of Winning's evidence, but if Winning's evidence was not rejected by the jury, one would have thought that Winning would not have been convicted of wilful murder but would have been found to be an accessory after the fact to wilful murder.

38 In the event that the jury were not able to conclude which of the two men was the principal offender, then the real question, as the case was fought, was whether, as an aider, he was guilty of wilful murder or manslaughter or, if not an aider, whether he was guilty of being an accessory after the fact to the form of homicide which the jury found was committed, or some lesser alternative. If the matter turned on the circumstantial evidence in the case and the question was whether the applicant was guilty as an aider of a homicide in any of the three forms provided by the law, as opposed to being guilty as an accessory after the fact, then his Honour had to bear in mind the way in which the Crown case and the appellant's case had been put.

39 The Crown's case was that the appellant, being present when Lister was killed, must have known that the offence he was aiding was a wilful murder committed by the principal offender. Its case was that the nature of the weapon, the site and force of the blows, the fact that Lister was rendered immediately helpless seated in the lounge chair, the fact that the weapon was chosen and obtained from the kitchen and what was said and done by Winning and Harris all made inevitable the drawing of the inference that the killer intended to cause Lister's death rather than simply to do him some grievous bodily harm, or rather than it be the case that the killer had neither such intention.

40 On the other hand, the appellant, by his out-of-court statements, relied upon the argument that if the jury was persuaded beyond reasonable doubt that it was not the case that he was not present at and had nothing to do with the killing, then the extent of his knowledge of what would happen to Lister was demonstrated by the agreement which he understood had been made, and to which he lent his support, to teach Lister a lesson by threats and, if necessary, by slapping him around, which is what he meant by giving Lister a hiding. On his version of the facts, Winning and Harris (particularly Harris) wanted Lister killed and Winning attempted to enlist his aid to carry that out, but he says he rejected that proposal out of hand and placed those strict limits upon the extent to which he would be involved.

41 In my opinion, the two bodies of evidence effectively posed for the jury the decision whether they were persuaded beyond reasonable doubt that as an aider the appellant knew the killer had an intention to kill or whether they were persuaded merely, in the light of what had passed between those involved prior to the event, that the killing to which the appellant lent his aid was one which occurred by the application of force to Lister without an intention to kill him or do him grievous bodily harm.

42 In my opinion, in those circumstances it was not incumbent upon the Judge to discuss a view of the facts which might lead to a verdict that the appellant was, as an aider, guilty of murder. Such a conclusion could only be reached if the jury rejected the evidence of the appellant in the form of his out-of-court statements as to his state of mind and knowledge and if they took the view that the circumstantial evidence did not support the conclusion beyond reasonable doubt that an aider would have known that wilful murder was being committed, but only allowed the conclusion that he would have known that the offence being committed was murder. That was not a view of the facts which was reasonably open or urged by any party: cf Criminal Code (WA), s 594.

43 When dealing with the case in relation to the appellant and his version of the facts, Templeman J told the jury, employing the terminology used in the evidence:

"If you thought the inference was open that Mr Avis was the aider, but that he intended only to provide support for some low-level violence on Mr Lister, then Mr Avis could only be guilty of manslaughter. You cannot be guilty of aiding an offence any more serious than the offence you intend to aid. If an aider intends to help somebody slap the victim around and the person who is supposed to be doing the slapping kills the victim, the person doing the slapping may be guilty of murder or wilful murder, but the aider is only guilty of manslaughter because he never intended to aid a killing.

You have heard the evidence that what was intended was that they go into the house and wake Mr Lister, give him some warning and slap him around or carry out some low-level violence if he resisted. If there is an inference of guilt against Mr Avis, but the inference is consistent on the evidence as you find it to be with an intention only to aid that kind of activity, not intending to kill Mr Lister, then the most favourable inference you could draw against Mr Avis is that he is guilty of manslaughter because on that analysis you could not be satisfied beyond a reasonable doubt that he intended that Mr Lister should be killed. That is something which you must bear carefully in mind."

In my opinion, in the light of the evidence, that was an appropriate instruction, about which indeed no complaint is made. It put, effectively, the appellant's "fall-back" case that at worst he was guilty of manslaughter.

44 However, as I have said, at the commencement and conclusion of his address Templeman J left open the verdict of murder in relation to the appellant, as well as in respect of the other accused persons. In the circumstances, the verdict of wilful murder returned by the jury against the appellant was most probably based upon a rejection of the truth of his out-of-court statements and an acceptance beyond reasonable doubt of the proposition that the appellant either killed Lister, intending his death, or aided Winning to kill him, knowing that Winning intended to cause Lister's death. The case is not at all like that of Gilbert v The Queen (2000) 109 A Crim R 580, a decision of the High Court relied upon by the appellant, which found a miscarriage of justice, despite the appellant's conviction of murder, in circumstances where there had been an error of law in that the alternative verdict of manslaughter had been wrongly taken from the jury: cf Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108; R v Dodd [1960] WAR 42.

45 I turn, finally, to ground 4. The thrust of the ground is clear enough. In support of it the appellant relies upon the decision of the Victorian Court of Appeal in Nguyen v The Queen [2001] VSCA 1; (2000) 118 A Crim R 479. The applicant in that case had been convicted of the murder of his stepson by shooting him. The Crown case was that he did so deliberately with the intention to kill or do serious harm to the victim. The applicant's defence was that the gun discharged accidentally while he was cleaning it. There was evidence that after the shooting the applicant had disposed of the gun, that he pretended to the police that an unknown intruder had been responsible for the shooting, and he said, with the support of his wife and stepdaughter, that he had been with them in an adjoining room at the time of the shooting. What he said to the police was at trial admitted to be a lie. He said that he had disposed of the weapon and told those lies because he feared that if he told the truth, he would still be imprisoned. He was fearful of the police and thought that if he was imprisoned, he would be unable to undertake the important task of making proper arrangements for the burial of the deceased.

46 Although the Crown sought to rely upon the lies told as evidence of the applicant's guilt, the trial Judge directed the jury that they should not use the lies in this way, but only in assessing the credibility of the applicant. His Honour, therefore, did not give a direction in the standard terms laid down by the High Court in Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193. The Court of Appeal held that, although the directions of the trial Judge were no doubt intended to be favourable to the applicant, a miscarriage of justice had occurred because the trial Judge omitted, in the course of his discussion of the lies told by the applicant, to remind the jury of the applicant's explanation for telling the lies and to tell them that if they accepted that those motives may have existed, then the lies may have been told even though the weapon had discharged accidentally. Such a direction, the Court held, was required in the particular circumstances of that case and, having regard to the way in which the Crown had sought to rely upon the lies told as being probative of the facts that the applicant discharged the weapon deliberately intending to kill his stepson. The case seems to me to be quite unlike this and the point at issue is different.

47 As I have said, in this case the Crown relied upon the conduct of all of the accused persons after the killing as being probative, not only of their guilt as accessories after the fact, but, more pointedly, the Crown asserted that their conduct after the event, together with their observed association and established conduct before it, showed that, throughout, they were acting together as a team to kill Lister and then to remove the evidence of his death and anything which might establish their implication in it. So far as the appellant was concerned, reference was made to the assistance provided by the appellant in burying Lister with the knife used to kill him still in his body, burning his car, burying the other knives, breaking up and hiding the lounge chair, assisting in cleaning the house and disposing of other bloodstained articles, that the police were not called, that Avis and the others resumed their normal lives and that when Avis and Winning felt compelled to go to the police, they concocted an admittedly false story which Avis also told his de facto wife.

48 Templeman J reminded the jury of this evidence and the submissions made to them by the Crown. He told them, as I have said, that they could accept as evidence the self-serving portions of the answers given by Avis out of court to police investigators. His Honour spoke of the possibility that, despite his denials, Avis may have been intoxicated. His Honour posed the question, "Was one of them truly innocent, but was his judgment clouded by alcohol to such an extent that he went along with the post-death events without really thinking too much about it when he would never have done so if sober?"

49 The jury had before them what Avis said about his conduct after the killing. He told the police that he told his wife the story he did, which he agreed was false, because he knew that if he told the truth, by which he meant the version of the facts ultimately related to the police, she would not have allowed him to have anything to do with Winning and he depended upon his association with Winning for his work and income. As to why he delayed going to the police, he said that when he and Winning would discuss doing so and what they should say, they could not readily settle on a convincing false story.

50 As to the events after the death of Lister, he told the police that he had an argument with Winning, that he told Winning that he did not want to be involved, but Winning insisted and he felt could not simply walk away because he had done the wrong thing by being there. When asked what he had done which he felt was unlawful, he said he had witnessed a crime, although he agreed that that did not make him responsible and that he was saying that he had not been present when the killing occurred. All of that was rather lame and could not sustain any favourable comment.

51 Finally, during the course of police interview on 15 October 1999, the following exchange occurred:

"Q. The reason that you had for staying there, can you tell me what that was?

A. Other than the fact that I was just there, witness to it, part of it by being there, no other reason.

Q. You've just witnessed a man die.

A. Yeah.

Q. You know who the person is that's responsible.

A. Yes.

Q. Yet all of a sudden now you want to assist that person who's responsible, a person who you owe nothing, a person who's not forcing you to do anything, a person who's not threatening you. Why? Why would you do that?

A. Oh, I was probably stupid enough to think that we were friends and that I was probably looking after him by not running and leaving him and abandoning him, you know?

Q. Kevin, did you do something in that house other than what you've told me?

A. No, not at all.

Q. Did you do something in that house that implicates you in that crime?

A. No.

Q. Are you certain of that?

A. Certain, yes.

Q. 100 per cent certain?

A. 100 per cent."

52 In my opinion, Templeman J was not required to give any particular direction in relation to this material and he was not required, in relation to whether the out-of-court statements were true or lies, to give an Edwards direction. The explanation for his behaviour on the night in question was before the jury. It was effectively that he was prevailed upon by Winning to assist and he agreed out of friendship. As to what was said to the police and to his wife, the question for the jury was whether any version, including those which out of court he later admitted to be false concoctions, and the last version of the events he gave, might be true or at least could not be rejected. Ultimately the out-of-court statements were his case. He relied upon them.

53 It was not suggested that if they were rejected and found to be lies, that would be evidence of guilt, because the lies would not be established except by acceptance of circumstantial evidence which proved beyond reasonable doubt, as the jury ultimately found, the appellant's guilt of the offence of homicide of which he was convicted. The appellant's case was that although he and Winning had originally decided, when they went to the police and when the appellant spoke to his wife, to blame Harris, he eventually, he said, told the truth when he implicated Winning as the killer and exculpated himself. The Crown did not seek to rely upon the proposition that that was a deliberately false account as evidence of guilt in itself. It would have been wrong to do so. The process of reasoning would be circular: the lie is established because the jury is satisfied that the appellant is guilty: cf Zoneff v The Queen (2000) 200 CLR 234. In

my opinion, there was no requirement for a direction of the kind envisaged in ground 4.

55 STEYTLER J: I have had the advantage of reading the reasons for decision of Murray J. I agree with them and with his Honour's conclusion that the appeal should be dismissed.

56 I wish to add only a few brief comments in respect of ground 2 of the grounds of appeal, by which the appellant raises the contention that the trial Judge should have directed the jury that, before the appellant could be found guilty of any offence as an aider pursuant to s 7(c) of the Criminal Code, the appellant's presence had to, as a matter of fact, aid the principal offender.

57 This ground seems to me, with due respect, to confuse two issues. It is established that, in this context, mere intention is not enough. As was said in R v Beck [1990] 1 Qd R 30 at 37, per Macrossan CJ, with whom McPherson J was in agreement, it is not possible to be an aider, whatever the intention, unless support for the commission of the offence is actually provided. However, that does not mean that the Crown is required to prove that, without the aid, the offence would not have been committed or that the principal offender would somehow have been less effective in committing the offence. All it means is that there must actually have been support for the commission of the offence in the form of some deliberate, positive involvement when the offence occurs (see Beck, above, at 38, per Macrossan CJ). This involvement need not be active, physical involvement and, in this context, voluntary and deliberate presence during the commission of a crime, without opposition or real dissent, has been said to be conduct which may provide evidence of wilful encouragement or aiding. (See Beck, above, at 37).

58 There is no suggestion that the trial Judge did not tell the jury, in this case, that some positive support for the commission of the offence was required before aiding could be established. Indeed, he said, in terms, that "the aider must give some encouragement or assistance or support to the principal offender" before liability as an aider could be established and that a person could not be an aider "merely by being there, passively as it were, while an offence was being committed". In my opinion, he was not required to say any more in that respect.

59 The trial Judge did go on to say (transcript page 1122) the following:

"You can still be an aider if in all the circumstances that is the result, so there needs to be voluntary and deliberate presence by the aider while the crime is being committed, in the knowledge that the crime is being committed and at the very least without any opposition or protest. Those are the circumstances - voluntary and deliberate presence while the crime is being committed without any opposition or protest. That can be aiding because it can provide support to the principal offender and it's a matter for a jury to decide in all the circumstances whether the person who's said to be the aider did in fact have that role."

60 Voluntary and deliberate presence during the commission of a crime, without opposition or real dissent, provides, as I have said, evidence of wilful encouragement or aiding. It does not necessarily amount to aiding. However, that was, in my respectful opinion, sufficiently explained by the trial Judge by saying that a person whose conduct is of that kind can be an aider "if in all the circumstances that is the result". I take him to mean, by that, that conduct of the kind mentioned by him, namely, voluntary and deliberate presence without opposition or protest, could amount to aiding, but only if that result followed from that conduct and if, as his Honour had earlier said, there was the requisite intention. That notion was, in my opinion, further reinforced by what was said by the trial Judge in the last sentence of the quoted extract.

61 I am consequently not persuaded that there was any error on the part of the trial Judge, in this respect, sufficient to warrant the conviction being set aside.