Court of Appeal (WA)|2004-11-03|Before: Mr P, Lander J, Templeman J, Wheeler J, Wallwork AJ, Miller J

Bardsley v The Queen [2004] WASCA 251 (3 November 2004)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BARDSLEY -v- THE QUEEN [2004] WASCA 251

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Appeal against conviction - Wilful murder - Whether direction sufficient to identify the real issues arising from prosecution and defence cases and to direct jury on how the law applied to those issues - Extension of time

Brennan v The King [1936] HCA 24; (1936) 55 CLR 253

Butler v The Queen (1989) 44 A Crim R 215

Foster v The Queen, unreported; SCt of SA (Lander J); Judgment No S5699; 11 July 1996

Gavin v The Queen (1992) 6 WAR 195

Gillard v The Queen [2003] HCA 64; (2003) 78 ALJR 64

Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473

Mason v The Queen (1995) 15 WAR 165

McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108

Narkle v The Queen unreported; CCA SCt of WA; Library No 6108; 2 December 1985

Narkle v The Queen, unreported; CCA SCt of WA; Library No 6108; 2 December 1985

Pinta v The Queen [1999] WASCA 125

R v Brown [1963] SASR 190. ,

R v McDonald [2000] WASCA 336

R v Pascoe, unreported; Court of Appeal, SCt of Qld; CA 242 of 1997; 19 December 1997

Remillard v The King (1921) 59 DLR 340

Stapleton v The Queen [2002] WASCA 328

Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426

Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365

Borg v The Queen [1972] WAR 194

Jervis v The Queen (1993) 1 QdR 643

Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507

Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108

Miles v The Queen [2000] WASCA 364

Nguyen v The Queen [2001] WASCA 176

R v Salmon [2001] WASCA 270

Saunders v The Queen (1980) WAR 183

1 TEMPLEMAN J: I have had the advantage of reading in draft, the reasons to be published by Wallwork AJ. His Honour there sets out the facts relating to this application which I need not repeat.

2 The prosecution case at trial was that James Wayne Stapleton unlawfully detained and wilfully murdered Cleon James Jackman and that the applicant and Rebecca Tilaima Papalli were also guilty of those offences, by reason of s 7 or s 8 of the Criminal Code. All the accused were convicted of both offences.

3 In seeking leave to appeal out of time against her conviction for wilful murder, the applicant's formal contention is that the learned trial Judge gave inadequate directions to the jury in relation to both s 7 and s 8. This contention requires an examination of the Judge's charge, to determine whether his Honour explained the relevant law to the jury in a proper manner.

4 Having heard the application, as it did on 3 December 2003, the Court reserved its decision. In the course of subsequent deliberations, it appeared to the Court that there might be a question about the way in which the trial Judge directed the jury in relation to the facts. I shall refer to this matter in more detail below.

5 In these circumstances, the Court invited the parties to make any such further submissions they considered appropriate.

6 The parties did make further submissions. The Court then felt it necessary to reconvene so that the submissions could be addressed in argument. Regrettably, as a result of the Court lists and other commitments it was not possible to reconvene until 3 August 2004, when the Court heard further argument and reserved its decision.

7 In these reasons, I set out first my judgment in relation to the formal grounds of appeal. I turn then to the subsequent submissions and argument.

The formal grounds: the direction in relation to s 7 of the Criminal Code

8 In the particulars of her proposed grounds of appeal, the applicant says as follows:

"(a) The learned trial Judge instructed the jury that 'an aider can only be convicted of the offence of which the principal offender is guilty'.

(b) This direction excluded from the consideration of the jury any specific intention the Applicant had when aiding the principal offender.

(c) The applicant has thereby lost a reasonable opportunity of the jury returning verdicts of guilty of murder or manslaughter."

9 As to (a) above, I accept that the statement that aider can only be convicted of the offence which the principal offender is guilty, is not a correct statement of the law, for the reasons given by Wallwork AJ. However, the applicant has taken the statement out of context. For reasons which I shall set out below, I do not think the jury were misled. I am supported in that view by the fact that none of the experienced counsel who appeared for the three accused sought a re-direction on this point at the completion of the Judge's charge to the jury.

10 As to (b), I do not accept it was necessary for the jury to consider, directly, the applicant's intention with respect to the fate of Cleon Jackman. The questions for the jury were, first, what the applicant knew or believed Mr Stapleton's intention to be, and secondly, whether she intended to aid him.

11 In Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473, Gibbs CJ said (at p 487):

"No one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender. Wilful blindness ... is treated as equivalent to knowledge but neither negligence nor recklessness is sufficient."

12 Then, in a joint judgment, Wilson, Deane and Dawson JJ said, of aiding, abetting, counselling and procuring (at p 506-7):

"Those offences require intentional participation in a crime by lending assistance or encouragement. They do not, of course, require knowledge of the law and it is necessary to distinguish between knowledge of or belief in the existence of facts which constitute a criminal offence and knowledge or belief that those facts are made a criminal offence under the law. The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence. He need not recognise the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it. It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which he is assisting or encouraging are such, whether he realises it or not, as to constitute the factual ingredients of a crime. If that were sufficient, a person might be guilty of aiding, abetting, counselling or procuring the commission of an offence which form no part of his design. Intent is required and it is an intent which must be based upon knowledge or belief of the necessary facts."

13 Thus, the relevant intention is an intention to aid the principal offender: not (in this case) an intention to cause death or grievous bodily harm to the victim.

14 As McPherson JA put it, in R v Pascoe, unreported; Court of Appeal, SCt of Qld; CA 242 of 1997; 19 December 1997):

" ... In order to sheet home criminal responsibility to the appellant for (murder) it is necessary for the Crown to prove that the appellant did an act to enable or aid one or more of the other assailants to kill their victim knowing that he or they intended to kill or inflict grievous bodily harm. It was not necessary to prove that the appellant himself had such an intention. It was sufficient that he knew one or more of the others had it; and that knowing that to be so, he did an act to aid or enable him or them to kill the (victim)."

(At p 3: my emphasis)

"To be guilty of murder under s 7(c) it is not necessary that that the aider have the intention of committing grievous bodily harm; it is sufficient that he knows the principal offender to have that intention."

16 Bearing those principles in mind, I turn to the Judge's direction in relation to s 7. It included the following passages (all at AB 61).

• "knowledge by the aider of the general nature of the offence being committed and of the intention of the principal offender to commit it are essential."

• " ... encouragement or assistance in one form or another to commit the offence are minimal requirements before an accused may be regarded as aiding the principal offender."

• " ... passive acquiescence without more cannot amount to aiding."

• "the accused is not guilty if he did not know that the principal offender was going to commit the offence."

• "(the accused) must have had knowledge of the principal's intent to commit the crime when he acted."

17 In my view, those passages contain a correct statement of the law.

18 The Judge continued (at AB 62) by applying those principles to the prosecution case. He directed the jury that if they were satisfied beyond reasonable doubt that Mr Stapleton intended to kill Cleon Jackman, the applicant and Ms Papalli could be guilty of wilful murder "if each of them knew it was Stapleton's intention to kill the boy, and the other necessary criteria were present ...".

19 A little later, his Honour said, in relation to the applicant and Ms Papalli:

"If each of them knew (Mr Stapleton) intended to do grievous bodily harm they could be guilty of the crime of murder, but only murder, that is, they couldn't be guilty of a more serious crime than that for which Stapleton was convicted. Again, the pre-conditions as to aiding would have to be satisfied.

If you are not satisfied beyond a reasonable doubt Stapleton was guilty of either wilful murder or murder but was guilty of manslaughter in the sense that he unlawfully killed Cleon Jackman but without any intent either to kill or to do grievous bodily harm, each of the woman could be guilty as aiders of the offence of manslaughter but nothing greater than manslaughter if the preconditions I have set out were met, that is, they aided Stapleton in the unlawful killing of Jackman but in the absence of knowledge of any intent on his part to kill or do grievous bodily harm. So you will see an aider can only be convicted of the offence of which the principal offender is guilty. Even then, the preconditions which I have set out must be met in each instance." (my emphasis)

20 The last of the words I have emphasised are those the applicant complains about in ground (a) of her proposed notice of appeal to which I have referred above. As I have said, I accept that, standing alone, those words do not represent the law. However, from the context in which they were spoken by the learned trial Judge is clear his Honour was directing the jury that they could not convict an aider of an offence more serious than that committed by the principal offender. Indeed, his Honour emphasised the point almost immediately. He said (at AB 63):

"So again I stress, an aider cannot be convicted of any offence greater than that committed by the principal."

21 In the earlier part of his charge, as set out above, the Judge made plain that the jury could not convict the applicant of wilful murder unless she had intended to aid Mr Stapleton, knowing it was his intention to kill Cleon Jackman. And further, that the applicant could not be convicted of murder unless she intended to aid Mr Stapleton and knew he intended to inflict grievous bodily harm on the boy. Finally, in this context, the Judge directed the jury that if the applicant intended to aid but had no knowledge of any intention on the part of Mr Stapleton to kill or do grievous bodily harm, she could be convicted of "nothing greater than manslaughter".

22 The Judge had earlier made plain to the jury (at AB 43-4) that each accused was to be considered separately. Although the accused were being tried together:

" ... you must bear in mind throughout your deliberations that each is entitled to be given separate consideration; that is to say, for example, you don't say, 'alright, one's guilty therefore the other two are.' You must separately consider the case against each and in relation to each charge, and that's why I say there are really six separate trials going on."

23 A little later, the Judge directed the jury about the elements of wilful murder, murder and manslaughter. Having done so, his Honour said (at AB 55):

"It will be apparent to you then that the intention with which the accused acted is of critical importance, and that question is central to this case because intention to kill or to cause grievous bodily harm is a fact which the crown must prove to the standard of persuasion I mentioned, beyond reasonable doubt. ...

Intention resides in the mind of the person doing the act. It is not proven as many other acts are proven, by producing it, by calling witnesses who saw it or heard it. You can only prove intention by inference."

24 Then, (at AB 56) his Honour gave the following direction, which again emphasised to the jury, the need to consider each accused separately:

"It is essential for you to appreciate that before you can convict the accused of wilful murder or murder, you must find the accused had himself or herself - I'm saying himself - the relevant intention. The intention with which an act was done is to be found by way of inference from all the circumstances of the case. All the circumstances must be considered including in particular circumstances personal to the accused. Facts which would distinguish the accused from his fellows in a way that could in your judgment weaken an inference as to intention otherwise based upon inferences found are relevant to that question."

25 This was a general direction about the way an intention might be discerned. It was therefore applicable to the jury's consideration of intention in relation to s 7 of the Code, to which the Judge referred a few minutes later.

26 To reinforce those directions, the Judge distributed among the jury an aide-memoire entitled "Verdicts Open", in which it was stated:

"In relation to each of the accused the following verdicts are open:

...

Count 2:

1. Guilty as charged (ie guilty of wilful murder)

2. Guilty of murder

3. Guilty of Manslaughter

4. Guilty of becoming an accessory after the fact to

(a) wilful murder

(b) murder

(c) manslaughter

The reference to count 2 appears to be an error: the wilful murder charge was contained in count 3. However, it must have been apparent to the jury that the note related to count 3.

27 The Judge emphasised the point again, in his parting words to the jury before asking them to retire to consider their verdict. His Honour did so after he had completed his charge. He then invited requisitions from counsel. Some matters were raised which persuaded the Judge he should recall the jury so as to clarify certain aspects of the charge. One matter, raised by the prosecutor, was as follows (at AB 123):

"Whilst your Honour, of course, directed the jury that they have to consider each accused separately as if it was one trial against one and deal with their verdicts accordingly there - whilst your Honour left all the alternatives open to the jurors, your Honour didn't go into a great detail about that and your Honour may of course deliberately have done that.

The Crown would submit it may be appropriate in this instance to also say that the jury can actually return a verdict, say, of wilful murder with respect to one accused and, say, a verdict of murder with respect to another or something along those lines."

"I made that quite clear, that the verdicts open in relation to each accused were any one of the following. I see your point. You want me to spell it out further, that one could be guilty of wilful murder, one of murder - one could be guilty of wilful murder, one of murder, one of manslaughter, etcetera. I don't think I need to do that. I see your point but I don't think I need to do that."

29 In the end, however, his Honour did accede to counsel's request. At the conclusion of his further, and final direction his Honour said:

"One final point - I don' think I really need to bring this to your attention but out of an abundance of caution I should say this: on the Verdicts Open sheet, and I'm pretty sure you got the message from me about this, you have got three different accused. There is a very big combination of different verdicts that could be given. For example, in relation to count 2 (sic), wilful murder, one could be guilty of wilful murder, another guilty of murder, murder, one guilty of murder, one guilty of manslaughter. One could be guilty of murder, another guilty of murder, another guilty of manslaughter. You see all the permutations? I'm sure you appreciate that, that all of those permutations were open, but just for clarification and certainty I have been asked to make it clear to you and I do." (AB 129)

30 It was submitted by counsel for the appellant that the Judge ought to have explained to the jury precisely how they might arrive at each of the possible permutations of verdicts. This is, in substance, the submission which led to the further hearing of the appeal. However, when invited by the Court to formulate an appropriate direction in relation to s 7 of the Code, counsel submitted that the jury should have been told that whether the applicant was guilty of wilful murder or murder would depend on "her own specific intent" (TS 15): that is, whether the applicant intended to assist in intentionally killing Cleon Jackman.

31 I my view, however, that would not have been a correct direction. As I have noted above, the questions are whether the applicant intended to aid the principal offender; and her knowledge of the principal offender's intention. But the jury would have understood that. It flowed from the direction that they should consider the case against each accused separately.

32 I refer again to the Judge's directions (at AB 61) which are set out above. These included the following:

"Knowledge by the aider of the general nature of the offence being committed and of the intention of the principal offender to commit it are essential.

The accused is not guilty if he did not know that the principal offender was going to commit the offence."

33 By these directions his Honour drew a distinction between the principal offender's intention and the aider's knowledge of that intention. The jury should therefore have appreciated that (for example) they might be satisfied beyond reasonable doubt of Mr Stapleton's intention to kill, while accepting that the applicant did not know Mr Stapleton had an intention beyond that of assaulting Cleon Jackman.

34 The jury were left in no doubt that they should consider the case against Mr Stapleton separately from that of the applicant as an aider: and that it was open to them to bring in different verdicts in relation to each.

35 I am not persuaded, therefore, that there is any substance to this ground of appeal.

Directions in relation to s 8 of the Criminal Code

36 The applicant's proposed ground of appeal in relation to s 8 is as follows:

"1.2 Directions with respect to section 8 of the Criminal Code

a) The learned trial Judge instructed the jury that the Crown case was that the unlawful common purpose was to carry out an assault on Cleon Jackman.

b) The learned trial judge instructed the jury that the Applicant would be guilty of wilful murder if they determined that this was a probable consequence of carrying out the common purpose.

c) The directions excluded from the consideration of the jury any specific intention the Applicant had when participating in the common purpose.

d) The possibility of the jury returning a verdict in respect of the Applicant that was different to that in respect of the principal offender was effectively excluded by the directions.

e) The Applicant has thereby lost a reasonable opportunity of the jury returning verdicts of guilty of murder or manslaughter."

"When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."

(1) whether two or more persons have formed a common intention to prosecute an unlawful purpose, and if so;

(2) whether an offence committed in that enterprise was "a probable consequence".

39 Question (1) above requires a consideration of the actual intention of the participants. Question (2), does not. It is well settled that it imports an objective test: see Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426 at p 442 per Gibbs J citing Brennan v The King [1936] HCA 24; (1936) 55 CLR 253.

40 That is not say, however, that two or more offenders who are rendered criminally liable under s 8 of the Code must be convicted of the same offence. As Walsh J observed in Mason v The Queen (1995) 15 WAR 165 at p 174:

"It was authoritatively established in Markeby v The Queen [1978] HCA 29; (1978) 140 CLR 108 that differing verdicts could be given under s 8. In that case, Gibbs ACJ (at 112) stated:

'When two persons embark on a common unlawful design, the liability of one for acts done by the other depends on whether what was done was within the scope of the common design. Thus, if two men go out to rob another, with the common design of using whatever force is necessary to achieve their objective, even if that involves the killing of, or the infliction of grievous bodily harm on, the victim, both will be guilty of murder if the victim is killed: R v Lovesy [1970] 1 QB 352 at 356. If, however, two men attack another without any intention to cause death or grievous bodily harm, and during the course of the attack one man forms an intention to kill the victim, and strikes the fatal blow with that intention, he may be convicted of murder while the other participant in the plan may be convicted of manslaughter.'

Stephen, Jacobs, Murphy and Aikin JJ all agreed with the comments of the Acting Chief Justice."

41 Those principles were repeated by Brennan CJ, Dawson and Toohey JJ in R v Barlow (1997) 188 CLR 1 at 13, in the following passage:

"As the operation of s 8 is limited to deeming the secondary party to have done the act or to have made the omission which renders the principal offender liable to punishment only in so far as the doing of an act of that nature or the making of an omission of that nature was a probable consequence of prosecuting their common unlawful purpose, the state of mind of the secondary party may be determinative of the extent of that party's criminal liability in either of two ways. First, it determines the content of the 'common intention to prosecute an unlawful purpose'. That common intention prescribes any restriction on the nature of the act done or omission made which the secondary offender is deemed to have done or made. The restriction may be referable to the circumstances in which it is done, the result it effected or the state of mind with which the principal offender did it. Once s 8 does its work of deeming the secondary party to have done the act or to have made the omission which the principal offender did or made in so far as that act or omission is of a nature covered by the parties' common intention, the state of mind of the secondary party may again require consideration. If, at the time that the act was done or the omission was made, the secondary party had a state of mind which, in combination with an act or omission of the nature which s 8 deems him to have done or made, renders him guilty of a more serious offence than the offence of which the principal offender is guilty, the secondary party is liable to conviction for the more serious offence. Thus the mastermind who, having greater knowledge of the circumstances or the likely result of a minor criminal offence which he and a comparatively innocent principal offender agree to commit, or who has an evil intent not shared by the principal offender, will be liable according to his (the secondary party's) state of mind, although the common plan was merely to commit the minor offence." (my emphasis)

See also, R v Stewart [1994] EWCA Crim 3; (1995) 3 All ER 159, at p 165, where Hobhouse LJ gave a similar explanation.

42 More recently, in Gillard v The Queen [2003] HCA 64; (2003) 78 ALJR 64, Gleeson CJ and Callinan J referred to the general principle, stated in McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 at 117-8, in a joint judgment of the High Court that:

"a person who intentionally assists in the commission of a crime or encourages its commission may be a party to it."

"The general principle there referred to extends to the possibility that a person who intentionally assists in homicide may be guilty of manslaughter even though the principal offender is guilty of murder. The existence of that possibility assumes a difference in the intentions of the two parties. The secondary party may not know of, or foresee, the principal offender's murderous intention, but may foresee the possibility of the act causing death as an incident of the common design. The essence of the reasoning in the above passage is that, when the secondary party continues to participate in the venture without having agreed to, but foreseeing as a possibility, the act causing death, that party is regarded as intentionally assisting in the commission of a crime. In the present case, if a jury decided that the appellant foresaw as a possibility that Preston would fire the loaded gun at Knowles, and continued to participate with that foresight, then he would be intentionally assisting in the commission of culpable homicide. The level of his own culpability would depend upon whether he foresaw that Preston might act with intent to kill or cause grievous bodily harm.

In our view, there was a viable case of manslaughter to be left to the jury, and the refusal to leave that case was a wrong decision on a question of law."

44 The second paragraph quoted above shows the distinction between the present case and Gillard (supra). There, the possible verdict of manslaughter was not left to the jury: here, all verdicts were left.

45 In summary, therefore, the task of the jury in the context of s 8 of the Code, is to identify the common intention of the accused persons. If one has an intention to murder and another an intention only to commit an assault, the common intention will be to assault.

46 If the death of the victim is a probable consequence of the prosecution of that unlawful purpose, then the person who intended only to commit the assault will be guilty of manslaughter. However, the accused who intended to kill will be guilty of wilful murder.

47 It follows that an accused rendered criminally liable by the operation of s 8 of the Code cannot be guilty of an offence less serious than the offence which was a probable consequence (viewed objectively) of the implementation of the common intention. But an accused person may be guilty of a more serious offence, if his intention exceeded the common intention.

48 Applying those principles to the present case, I turn to consider the directions given by the learned trial Judge in relation to s 8 of the Code.

49 His Honour first directed the jury to the provisions of s 8 of the Code, which he had set out for them in another aide-memoire. He then read s 8(1), with an explanation of the word "deemed".

50 His Honour then directed the jury that it was a matter for their judgment whether there was a common intention to prosecute an unlawful purpose:

" ... and I can direct you that an assault is an unlawful purpose. That is the purpose which the Crown alleges here - an assault on the deceased, to bash him, to give him a hiding, to use ordinary language, to teach him a lesson." (AB 66)

"The Crown then alleges that the offence was committed and in the prosecution of that purpose there was the unlawful killing of the deceased and the Crown says the killing was a probable consequence of the unlawful purpose. If those facts were established to your satisfaction beyond reasonable doubt, each accused is responsible for the killing. Such a killing would be unlawful and it does not matter who struck the fatal blow or blows. If these matters are established, the offence would be at least manslaughter but the Crown case goes further.

The Crown case is that the unlawful killing amounted to a wilful murder in as much as the person who struck the fatal blow or blows intended to kill and at least one of the accused, Stapleton they say, committed the act of wilful murder in as much as he or she did the act which caused death and with an intention to kill."

52 His Honour went on to direct the jury that if they were satisfied on that point (Mr Stapleton intended to kill) the other accused would be guilty of wilful murder if three facts were established to the satisfaction of the jury. They were:

1. the accused person they were judging had an intention in common with the others to assault the victim;

2. that accused person must have been acting in the prosecution of the purpose;

3. that the 'killing with the intent to kill' was of such a nature that its commission was a probable consequence of the prosecution of the purpose: and the jury were to look at the nature of the purpose ...

"Now putting it at its lowest scale, if the purpose was merely to give the boy some discipline, you might say the type of blow or blows which caused death were not a probable consequence of the prosecution of such purpose and the participants would not be guilty of wilful murder, so if the purpose was just to give him a belting and send him on his way and one of the accused went beyond the scope of the common purpose by suddenly attacking him in a way which was unexpected and unforseen, the others would not be guilty of wilful murder."

54 Pausing there, that was in my view, a correct statement of the law. The common purpose could only have been the purpose which all the accused had in common. If that purpose was "just to give him a belting and send him on his way" the accused persons who had that intention would be guilty of no more than manslaughter if, viewed objectively, death was a probable consequence of the prosecution of such purpose. However, if one of the accused had an intention to kill, that would exceed the common intention and would result in that offender being convicted of wilful murder.

55 The Judge then gave a direction in similar terms in relation to murder, and again, in relation to manslaughter (AB 68-9).

56 He concluded this section of his charge in the following manner:

" ... Finally, applying the principles I have set out for you, the position could be this: each of the accused could be guilty of wilful murder; secondly, each of the accused could be guilty of murder; thirdly, each of the accused could be guilty of manslaughter; fourthly, one or more accused could be guilty of wilful murder and another only guilty of murder or manslaughter and, fifthly, one or more could be guilty of murder and the others only guilty of manslaughter. Of course, they could be not guilty, I suppose, of anything; wilful murder, murder or manslaughter." (AB 69)

57 As I have noted above, the essence of the applicant's complaint in relation to this part of her application is that:

"The directions excluded from the consideration of the jury any specific intention the applicant had when participating in the common purpose."

58 In my view, this ground is not made out. A person who is rendered criminally liable by the operation of s 8 of the Code cannot be guilty of any lesser offence than that which was a probable consequence of the prosecution of the unlawful purpose the subject of the common intention.

59 In other words, the common intention is the lowest common denominator. It is the intention shared by all those involved.

60 If one accused has an intention which includes, but exceeds the common intention, he will be guilty of a more serious offence. And the Judge directed the jury in those terms. Thus, the jury was directed, in substance, that they should consider the common intention and then consider whether any of the accused had an intention which exceeded it. Hence, his Honour's direction that there were the various permutations to which he referred in the closing part of his charge in relation to s 8. As I have noted above, his Honour re-emphasised that matter immediately before the jury retired to consider their verdict, after some matters had been clarified.

61 For these reasons, I am not persuaded that there is any merit in this ground of appeal.

The additional question argued on 3 August 2004

62 The issues raised by the formal application are quite narrow. As I have noted above, they are concerned with the way in which the trial Judge directed the jury in relation to the law as stated in s 7 and s 8 of the Criminal Code. There is, however, a broader question: whether the Judge gave an adequate direction to the jury to enable them to apply the law to the facts of this case.

63 In the reasons to be published by Wallwork AUJ, his Honour refers to a number of authorities in which the courts have set out the duty of a trial Judge in directing a jury in this context. As Wallwork AUJ has pointed out, R v Jellard [1970] VicRp 98; [1970] VR 802 contains the following passage in the judgment of Smith J with whom Winneke CJ and McInerney J agreed, at 804:

"Reference may also be made to what was said by the High Court in Alford v Magee [1952] HCA 3; (1952) 85 CLR 437, at p 466; [1952] HCA 3; [1952] ALR 101, regarding the duties of a trial judge, and in particular to the following words: '... it my be recalled that the late Sir Leo Cussen insisted always most strongly that it was of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them. He held ... that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues are'."

64 I respectfully agree with Wallwork AUJ that the Judge did not in this case explain how the law might be applied to the facts of this case, as the jury found them to be.

65 Although the Judge had told the jury about the possible permutations of verdicts they might reach, I do not think this was sufficient.

66 Because there were three accused, each giving a different account of significant events, it was, I think, necessary for the Judge to have dealt specifically with the evidence of each accused and instructed the jury as to the conclusions they might reach having regard to their findings in relation to the evidence given by each accused.

67 In other words, while I consider that his Honour's charge, based on the "Verdicts Open" aid memoire was an appropriate way of explaining the law in relation to s 7 of the Code, it was not sufficient simply to leave it to the jury to work out how they might arrive at the various possible verdicts on the facts as they found them to be.

68 Although the Judge summarised the Crown case and the submissions made by the applicant's counsel in her defence, I agree with Wallwork AUJ that that was insufficient to discharge the Judge's responsibility of identifying the real issues arising from the Crown and defence cases and directing the jury how the law applied to those issues.

69 I therefore agree also that there has been a miscarriage of justice in the present case.

70 The applicant was convicted on 25 May 2001. She did not make this application until 5 May 2003. The applicant explained the delay in a document described as an affidavit and which I will regard as such, even though it is unsworn. Essentially, the explanation is that the applicant was advised by her trial counsel, immediately after conviction, that there were no grounds for an appeal. Although the applicant soon learned that the time limited for appealing was 21 days, her counsel did not advise her that there would be any problem in lodging an appeal after the expiration of that period. Her counsel advised her that it would be preferable to await the outcome of an appeal by Mr Stapleton and that, should he succeed, an appeal would be instituted on the applicant's behalf on the following day.

71 Mr Stapleton's appeal was heard on 7 August 2002 and dismissed on 4 December 2002: Stapleton v The Queen [2002] WASCA 328. However, the applicant took steps to institute an appeal well before then. She says that "a couple of months" after her conviction, she sought legal advice from a sole practitioner although she could not afford to pay him privately. She was advised to apply for a grant of legal aid which she did, on 6 July 2001.

72 On 18 December 2001, after correspondence between the applicant and the Legal Aid Commission, the applicant was informed that her application for a grant of aid to appeal against conviction had been unsuccessful.

73 In February 2002, the applicant approached a former employer and friend - Ms Kenworthy - with a request for financial assistance. However, it was not until about October 2002, that Ms Kenworthy said she might be willing to assist the applicant financially. She asked the applicant to obtain three quotes from lawyers before she would agree to fund the appeal.

74 The applicant approached a Queen's counsel, her former counsel and her present solicitor.

75 The applicant's present solicitor attended on her at Bandyup Prison on 23 October 2002. He said he would be prepared to act but would need to secure funding before doing so. That funding was not provided until 9 January 2003, when the solicitor obtained a signed costs agreement and a letter of undertaking to pay the costs associated with reading the trial transcript and a preparing an advice on the merits of an appeal against conviction.

76 By 9 February 2003, the solicitor had read the transcript and formed the view that there had been a misdirection by the learned trial Judge in his charge to the jury. However, it appears that the solicitor did not have the whole of the transcript: a substantial section was missing.

77 On or about 12 March 2003, counsel provided written advice to the solicitor in which he concurred in the latter's view that there was merit in an appeal against conviction, based upon misdirections to the jury as to the proper application of s 7 s 8 of the Criminal Code. This advice was given despite the incomplete transcript. The solicitor sought, unsuccessfully, to obtain the missing section from various sources including the Office of the Director of Public Prosecutions and the Legal Aid Commission. Eventually, the solicitor was obliged to obtain copies of the missing pages from the Supreme Court.

78 On 26 March 2003, the solicitor informed the Director of Public Prosecutions that a notice of appeal would be lodged on behalf of the applicant. However, it was a further two months before the application was filed.

79 It is well settled that the time limited for appealing against conviction by s 695(1) of the Criminal Code "must be taken seriously and every effort must be made to comply with it": Narkle v The Queen, unreported; CCA SCt of WA; Library No 6108; 2 December 1985 per Burt CJ.

80 In Narkle, the delay was 41/2 months. The Chief Justice said that:

"(s 695(1)) contains no express criteria controlling the Court's discretion to extend time and in that sense it can be said that the discretion is unfettered. But that is not to say that it will be exercised as of course. It should only be exercised upon facts shown which in the judgment of the court appear positively to call for its exercise and the onus upon an applicant for extension

of time will of course increase as the time goes by. A delay of 41/2 months, as in this case, can only be described as gross and it would be necessary to show very special circumstances indeed to sustain the exercise of this Court's discretion to extend time to that extent. Those circumstances may explain and excuse the delay or they may relate to the grounds of appeal and indeed the latter consideration may become and will become dominant should it appear that there has been a manifest miscarriage of justice. The discretion has always been exercised by this Court having regard to those two broad considerations ..."

81 That principle has been applied consistently over the years. It was applied in Gavin v The Queen (1992) 6 WAR 195, from which I have taken the above quotation from Narkle: see Seaman J at p 201-2.

82 There is very good reason for insisting on strict compliance with the time limit. If there has been a misdirection resulting in a miscarriage of justice, there will almost inevitably be an order for a new trial. In such circumstances, it is important that the re-trial take place as soon as possible. The crucial evidence in criminal trials is very often the viva voce evidence of witnesses. Although they will no doubt have given statements relatively soon after the events in question, these statements are not admissible: and recollections fade. That is the reason the burden upon an applicant to show cause why an extension of time should be granted will increase as time goes by.

83 I accept that in the present case the applicant has explained the delay in making the application, insofar as those matters are within her knowledge. It is most unsatisfactory that there is no explanation for the delay between February and October 2002, when the trial transcripts were in the possession of Ms Kenworthy awaiting her decision whether or not to assist financially. However I assume this delay was beyond the applicant's control.

84 Given my view that there has been a miscarriage of justice and the seriousness of the possible consequences to the applicant, I consider that the delay should be excused and that leave to appeal should be given.

86 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Templeman J and Wallwork AJ. So far as the "original grounds" of appeal are concerned (that is, those formulated by the applicant's solicitors and upon which they sought to rely at the hearing on

3 December 2003), I agree, for the reasons given by Templeman J, that there is no substance in those grounds. I do not therefore need to consider them further.

87 However, Templeman J and Wallwork AJ would grant the application and allow the appeal on the basis that there was a miscarriage of justice in that the learned trial Judge failed to give an adequate direction to the jury to enable them to apply the law to the facts of this case. I would respectfully disagree with that conclusion for two reasons: the first is that in my view, what is required to demonstrate a "manifest miscarriage of justice" in the context of a case such as the present is more than the mere loss of a chance of acquittal (Narkle v The Queen unreported; CCA SCt of WA; Library No 6108; 2 December 1985, Gavin v The Queen (1992) 6 WAR 195); the second is that I would in any event disagree with the proposition that an error of the kind alleged was made by the learned trial Judge. In order to understand those propositions, it is necessary to look in a little more detail at the history of this application.

88 The applicant was convicted after trial on 25 May 2001 of the wilful murder of Cleon Jackman. She was tried with two others, they being Stapleton and Papalii. The trial ran for over three weeks, and each of the accused was represented by counsel experienced in the conduct of criminal trials.

89 The applicant deposes that following her conviction she wished to appeal, sought advice from her counsel at trial, and was advised that it was counsel's view that there were no grounds for an appeal. A few days later she learned that the co-accused Stapleton had lodged an appeal against conviction, and was advised by her counsel that she should await the outcome of that appeal. Stapleton did indeed appeal. His appeal was dismissed on 4 December 2002. He was represented at that appeal by very experienced senior counsel and his grounds of appeal related to the admission of evidence of confessional statements made by him and to the adequacy of the learned trial Judge's direction in respect of statements by his co-accused which tended to implicate him. His grounds of appeal do not appear to have referred, even obliquely, to the issue which has led in this case to the present applicant's appeal being allowed.

90 "A couple of months" after conviction, according to the applicant, she sought further legal advice about appealing her conviction and made an application for legal aid which she forwarded on 6 July 2001. There was then some correspondence between the applicant and the Legal Aid Commission seeking clarification of whether her intention was to appeal conviction or sentence, and requesting transcript. She sought information from what was then the Unrepresented Criminal Appellants' Scheme at the University of Western Australia and received an appeal kit from them, which she deposes she was unable to make use of because of her limited education. She was ultimately unsuccessful in her application for a grant of legal aid and was informed of this by letter dated 18 December 2001. She was by then about six months out of time.

91 One should not expect a person such as the applicant to be able to formulate grounds of appeal in a complex matter unassisted. In addition, it may be accepted that the consideration which the Legal Aid Commission is able to give to such applications is affected by the pressure of other cases. However, it should be noted that by December 2001 there had been no suggestion by any of the trial counsel, or by counsel representing Stapleton on his appeal, or by the Legal Aid Commission in its review of the transcript, or indeed by the applicant herself, of any apparent lack of clarity in his Honour's explanation of the law and the way in which it might be applied to the facts of the present case or of any inadequacy in his Honour's explanation of the applicant's case to the jury. Stapleton's position is of relevance, since it is clear from reading his Honour's direction to the jury that he dealt with the case of each of the accused in the same way.

92 It appears that between 18 December 2001 and some time in February 2002, the applicant did nothing further about appealing her conviction. However, in February 2002 she approached a former employer to see if that person might assist her financially, and arranged for transcripts to be sent by Legal Aid to that person.

93 There is no explanation as to what, if anything, occurred during the eight months from February 2002 to October 2002. However, in October 2002 the employer agreed that she "may" be willing to assist financially in relation to an appeal and asked the applicant to approach three lawyers for "quotes". The applicant then approached three legal practitioners, including her present solicitors. Her solicitors met with her former employer on 12 November 2002 and received some transcript, which was incomplete. There was a further unexplained period, before the applicant's present solicitors received a signed costs agreement from the applicant's former employer in January 2003. There was apparently still a problem with missing transcript.

94 A notice of appeal was filed, dated 5 May 2003, almost two years from the date of her conviction. It is not clear why the application was lodged on that date, since the solicitor acting for the applicant had informed the Director of Public Prosecutions on 26 March 2003 that a notice of appeal would be lodged. That two month delay is unexplained. The absence of transcript does not appear to account for it, since it seems from the applicant's affidavit that the missing portion of transcript was still unavailable as at October 2003.

95 As has been noted by Templeman J, the grounds of the proposed appeal were those which related to the narrow questions of the directions with respect to s 7 and s 8 of the Criminal Code. The appeal was argued in December 2003 on that basis.

96 Subsequent to the argument in December 2003, the "broader question" of the way in which the learned trial Judge related the law to the facts, and the way in which his Honour directed the jury as to the various permutations of verdicts available, seemed to the Court to be a question worth further exploration. The Associate to the Presiding Judge wrote to the parties seeking further submissions in respect of that issue. In my view, it is clear that the parties did not then appreciate precisely what issue it was which the Court wished to raise. Counsel for the State wrote a letter dated 2 April 2004 seeking further clarification of the question; and it appears from the applicant's further submissions of the same date that they were not directed to the issue which ultimately led to the appeal being allowed.

97 Section 695(1) of the Criminal Code provides that where a person convicted desires to appeal or to obtain leave to appeal, the person is to give notice of the appeal or the application within 21 days of the date of conviction. The same section provides that the time within which notice of appeal or an application for leave to appeal may be given "may be extended at any time by the Court of Criminal Appeal". The statute does not fetter the discretion to extend time.

98 The authorities which I have been able to discover which deal in most detail with the question of the way in which that discretion should be exercised are those from Western Australian and from South Australia. Although they are broadly similar, there appear to be certain differences, which may be of importance in this case, which may result in part from the different practice in each State relating to the way in which such applications are dealt with.

99 So far as I can tell, the practice which is usually or frequently adopted in South Australia is that of hearing the application for leave separately from the appeal itself. In this State, the almost invariable practice, and the one followed in this case, is to hear the application for leave and the argument in respect of the appeal together. The latter practice appears to have grown up in part because the common experience of the Court is that delays are generally relatively short, so that in many cases leave is not seriously in issue, and because of the importance of the merits of the applicant's case in determining the question of whether leave should be granted.

100 In South Australia, it was said in R v Brown [1963] SASR 190 at 191 (per Napier CJ, Millhouse and Hogarth JJ) that:

"The practice is that, if any reasonable explanation is forthcoming, and if the delay is, relatively, slight ... the Court will readily extend the time, provided that there is a question which justifies serious consideration. But, whilst that is so, appellants are expected to act promptly, and, in particular, the Court does not countenance the appeal being held over, whilst counsel is obtaining a shorthand note of the summing up and going over it with a tooth comb. Where the accused is represented by counsel the Court takes the view that, 'if counsel has a genuine grievance regarding a summing up he knows substantially what it is as soon as the summing up is finished'.

It follows that where the delay is substantial an application to extend the time is by no means a matter of course. It is not sufficient that there would have been a question calling for serious consideration, if the appeal had been instituted in due time. When the time prescribed by the Act has expired the party convicted has lost his right to appeal, and it is for the Court to say whether, taking all the circumstances into account, it is in the interests of justice that he should be permitted to institute and pursue his appeal."

101 So far, the position in South Australia and in Western Australia as explained in cases such as Narkle and Gavin appears to be the same. However, where the delay is unexplained or inadequately explained, there appears to be an acceptance in the South Australian cases that the Court will be persuaded that a miscarriage of justice may occur if it is persuaded that "on the merits the appeal would be likely to succeed" (see eg Foster v The Queen, unreported; SCt of SA (Lander J); Judgment No S5699; 11 July 1996 at 6, and R v BFB [2003] SASC 338 per Besanko J at [23] and the authorities referred to in each of those cases). That is, it appears to be assumed that if the appeal is one which would have succeeded if made within time, a miscarriage of justice will flow from the refusal to grant the extension of time. I should note, however, that in the South Australian cases I have reviewed, the delay was in each case much shorter than in the present case. The very frequently cited case of R v Brown [1963] SASR 190 involved a delay of seven months.

102 The view taken by Templeman J and Wallwork AJ in the present case appears to me to be consistent with the approach adopted in South Australia. My understanding of the Western Australian line of authorities, however, is that there may be occasions on which more must be shown to persuade the Court to grant leave to extend time, than that there is a ground of appeal which would have been successful had the application been made within time. That line of authority begins with Narkle. The passage most often cited in relation to extensions of time appears in the reasons of Burt CJ at p 2, and is as follows:

"This Court has on a number of occasions pointed out that the time limit fixed by s 695(1) of the Code must be taken seriously and every effort must be made to comply with it. The section contains no express criteria controlling the Court's discretion to extend time and in that sense it can be said that the discretion is unfettered. But that is not to say that it will be exercised as of course. It should only be exercised upon facts shown which in the judgment of the Court appear positively to call for its exercise and the onus upon an applicant for extension of time will of course increase as the time goes by. A delay of four and a half months, as in this case, can only be described as gross and it would be necessary to show very special circumstances indeed to sustain the exercise of this Court's discretion to extend time to that extent. Those circumstances may explain and excuse the delay or they may relate to the grounds of appeal and indeed the latter consideration may become and will become dominant should it appear that there has been a manifest miscarriage of justice." (emphasis supplied)

103 In that case, all members of the Court found that the grounds of appeal lacked substance in any event. However, if all that his Honour had meant by the observations which he made was to convey that either the delay should be satisfactorily explained or that the applicant should demonstrate that an appeal within time must have succeeded, it seems to me unlikely that the expression "very special circumstances" would have been used, since it is difficult to describe a successful ground of appeal as "special"; nor would his Honour, I think, have added the adjective "manifest" to the well understood expression "miscarriage of justice".

104 In Gavin, Malcolm CJ said (at 198) that "in a case of lengthy delay the court requires exceptional circumstances to be shown before an extension of time will be granted, unless it can be shown that there will be a miscarriage of justice if an extension is not granted" (citing, inter alia, Narkle). This appears to me to suggest that there must be shown either exceptional circumstances, or a miscarriage of justice, whereas I would have understood Burt CJ as regarding a "manifest miscarriage of justice" as one example of an exceptional circumstance. Similar views were expressed by Wallwork J at 219. However, Seaman J at 203 and again at 213, referred to a need to demonstrate a "manifest" miscarriage of justice. As was Narkle, Gavin appears to have been a case in which the Court formed the view that no error had been demonstrated in any event.

105 So far as I can discover, Narkle and Gavin are the two cases most frequently cited in this Court as establishing the principles relating to an extension of time within which to appeal. I have not been able to discover any case (apart from Cameron, discussed below) in which the delay was both as lengthy and as poorly explained as the delay in the present case. In the majority of cases the delay seems to have been measured in weeks rather than in months, and in the majority of cases there was an explanation for some or all of the period by reason of circumstances partly or wholly outside the control of the applicant. It has not therefore been necessary for the Court to consider what would be the appropriate way of dealing with a case in which the delay was measured in years and in which a very substantial portion of that delay (in the present case, on my calculation, well over a year) was unaccounted for.

106 There are two further decisions of this Court which may shed some light on the issue, however. The first is R v McDonald [2000] WASCA 336. In a judgment of the Court which cited inter alia Gavin and Narkle, it was said at par [10] that in order to justify the extension it was necessary to show "that there would be a miscarriage of justice if an extension of time were not granted in this case, a miscarriage so significant as to justify an exercise of the discretion to extend time by some seven and a half months ...." (emphasis supplied). That observation suggests that more may be required than simply a demonstration that the appeal would otherwise have been successful. However, the application in that case was a Crown application for leave to appeal against sentence, and it may be that special considerations applied.

107 In Cameron v The Queen [2004] WASCA 16; (2004) 142 A Crim R 424, there was an application for an extension of time to appeal against conviction. The delay in that case was almost two years following conviction. The applicant had entered a plea of guilty to the offence in respect of which he wished to appeal and had, between his conviction and application for extension of time to appeal against conviction, successfully sought leave to appeal against sentence. At par [45], McKechnie J, with whom Steytler J and Wallwork AJ agreed, expressed the view that: "In my opinion the lengthy and unexplained delay, coupled with the conscious decision of counsel not to raise the issue at an appropriate opportunity before the Court of Criminal Appeal, are of themselves sufficient reason to refuse the application to extend time" (emphasis supplied). For reasons which his Honour outlined, he formed the view that there was no substance in any of the grounds of appeal in any event. This is the only decision which I have been able to locate which appears to rest primarily upon the view that at some stage the length of the delay and the nature of the applicant's conduct giving rise to the delay may justify refusal of an extension of time, independently of any consideration of the merits of the proposed appeal.

108 As a matter of principle, it is my view that the Court ought to recognise the possibility, which seems to be implicit in the decisions in this State to which I have referred, that there will be applications for extension of time within which to appeal which ought to be refused notwithstanding that the applicant has demonstrated the existence of a ground which would have led to the appeal being successful, if made within time. The broad question in each case must be whether it is in the interests of justice to grant the extension, and I cannot imagine any formula which would appropriately describe the way in which the Court should approach its task.

109 In each case, considerable weight must of course be given to the undesirability of allowing a flawed conviction to stand, and perhaps especially so where, as here, the offence is a serious one. However, the following considerations suggest to me that it should be recognised that there will be cases in which an applicant should be required, for example, to demonstrate not merely that he or she has lost a chance of acquittal reasonably open, but that there is a substantial possibility that, had the error complained of not been made, the applicant would have been acquitted. One can perhaps envisage cases in which something more, such as a very strong probability of acquittal, should be demonstrated.

110 In common with civil cases, one can assume in criminal cases that with the passage of time witnesses will become confused and memories will fade. Evidence may be mislaid. In criminal cases, there is more likely to be the further factor of publicity, which can taint recollection. Although both the State and the accused will be affected by the passage of time, the likelihood is that the State will usually be prejudiced to a much greater degree than the accused. That is because of the burden of proving its case to the very high standard required which rests upon the State in criminal cases. It is also because of the practicalities of the usual criminal trial; unlike many civil cases, the majority of criminal trials still rely very heavily upon oral testimony, and in the general run of criminal trials the accused's witnesses will consist of the accused him or herself and perhaps some family or associates with a close interest in the matter, whose memories might be thought unlikely to fade rapidly. By contrast, the State will often rely to a greater or lesser degree, as in this case, on the memories of lay witnesses having no close connection with the events in question and having therefore no particular reason to recall the events with precision indefinitely. Further, juries are less likely than are Judges to be in a position to make allowance, in assessing the demeanour of witnesses, for the inevitable loss of freshness and immediacy which characterises retrials of events which took place some considerable time before.

111 Importantly, too, criminal trials very frequently involve circumstances which are extremely traumatic for those persons caught up in them and particularly for the victims of the offences and their families. It is not unusual for victims of sexual offences or armed robberies, for example, to be extremely traumatised by the process of giving evidence once, while the ordeal of the victim's family in cases where a person is killed would seem obvious. To revive those issues at a time when one might hope that the passage of time might be beginning to lessen the trauma involved is not to be lightly done. Even where the State's case still appears reasonably strong after the passage of some time, these are factors which may affect the decision whether or not to retry a person whose appeal has led to a conviction being quashed.

112 In the light of the practical issues discussed above, if all that were required, where delay is very lengthy and wholly or partly unexplained, was for the applicant to persuade the Court that an appeal instituted within time would have succeeded, it would follow that in some cases a person who has a good ground for appealing against conviction, but delays in commencing that appeal, will be in a better position than an appellant who complies with the statutory requirement to commence within 21 days; and, perhaps, the longer the delay the greater the advantage to the applicant. As a practical matter, of course, since most applicants will be in custody until either their sentences expire or their appeals are determined, that consideration is likely to affect only the most serious categories of offences.

113 Even where such considerations do not apply, if all that were required to demonstrate a miscarriage of justice were that there should be a ground which would have succeeded in a regularly instituted appeal, one wonders what purpose the statutory limit and the existence of a discretion would serve. In practical terms, any person with a meritorious ground of appeal would succeed, whenever the appeal was instituted. A person without such a ground might formally be refused leave, rather than having their appeal dismissed, if attempting to appeal out of time, but there would be no practical consequence ever flowing from a failure to appeal within time.

114 It is my view that both principle and authority in this State suggest that the Court may require more to be demonstrated than that an appeal ground will be successful, before time is extended. It is also my view that this is a case in which more should be demonstrated.

115 Briefly summarised, the factors which in my view point against the exercise of discretion to extend time in this case are as follows:

• the delay was extremely lengthy, being almost two years;

• a period of over 12 months of that delay seems to have been entirely unexplained;

Bardsley v The Queen [2004] WASCA 251

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (357 paragraphs)

Bardsley v The Queen [2004] WASCA 251 (3 November 2004)

The formal grounds: the direction in relation to s 7 of the Criminal Code

Directions in relation to s 8 of the Criminal Code

The additional question argued on 3 August 2004

Parties

Cases Cited (18)