Batcheldor v R & Walsh v R

The Crown case

1. In the morning of 25 January 2010, the deceased's body was found in a burnt out car, a Mazda wagon, in bush near Robertson. His body was on the reclined front passenger seat, secured by two lengths of steel chain. One was across his torso and extended down past either side of the seat. The other was wound around his neck and the headrest, extending down the side of the torso and wrapped around his rear thighs. A subsequent post-mortem examination could not identify the cause of death because of the extent of damage to the body caused by the fire.
2. The appellants and the deceased were known to one another. The background to the offences was a break-in at Batcheldor's home at Albion Park Rail in the night of 14 January 2010. Among the property stolen was a gold necklace of hers and a coin collection belonging to Walsh. Batcheldor reported the matter to the police, but she also made her own enquiries about it, assisted by Walsh and others.
3. On 18 January her enquiries led her to a pawn shop in Wollongong, which she attended with a friend, Evren Agdiran. They found that Mr Digby had pawned her gold chain there. She suspected that he was involved in breaking into her home or, at least, that he had information about it. She told Mr Agdiran that she intended to go to the unit at Wollongong where Mr Digby lived and get her "shit" back. She added that she was going to "smash his place up" with a baseball bat. In a recorded interview with police on 27 January, four days after the deceased's body was discovered, she said that she "wanted to go to his house straight away and punch him in the head."
4. That evening she drove in her car, a Commodore, to the deceased's unit, accompanied by Walsh and another friend, Cihan Karaoglu. Also accompanying them was a woman who was to be an important Crown witness. She had been charged with involvement in the murder but was later indemnified by the Attorney General. The trial judge made an order prohibiting the publication of her name, which remains in place, and she was referred to as "witness A." The Mazda wagon in which the deceased's body was found was hers.
5. When they arrived, Batcheldor, Walsh and Karaoglu went into the unit and witness A remained in the car. The deceased was not in the unit but a man named Michael Small was. He gave evidence that Batcheldor had him contact the deceased by phone and she spoke to him, apparently asking him to return to the unit. Walsh and Karaoglu behaved in an intimidating manner towards Small, but did not hurt him. They searched the flat but did not locate any of the property they were looking for.
6. The deceased returned to the flat, where he was questioned about the property. Walsh did most of the talking and, according to Small, he and Karaoglu were aggressive towards the deceased but Batcheldor was not. The deceased denied any involvement in the break-in and said that he had been given the chain. He agreed to pick it up from the pawn shop the next day and return it to Batcheldor. He also gave Walsh and Karaoglu some prescription tablets, they calmed down and the three of them left.
7. The deceased had been driven back to his flat by a friend, Tini Eli, who remained in his car while the deceased went inside. Eli said that he heard "a lot of swearing and stuff" emanating from the flat which, he said, "was pretty loud." Later he saw the deceased, Batcheldor, Walsh and Karaoglu come out. As the deceased returned to the car, one of the men said, "Better get that fucking chain back, better get that fucking stuff back."
8. In the recorded police interview, Batcheldor made no reference to this incident. Rather, she said that the day after she visited the pawn shop she phoned the deceased and went to see him at his unit. He disclaimed any knowledge of the break-in but said that he had received the chain from a prostitute, who had herself got it from another man. He said that he did not know where the rest of her property was but would be able to find out. He agreed to recover the chain. The next day he rang to say that he could not find out anything about the man from whom the prostitute claimed to have received the chain. The following morning, they went together to the pawn shop, she gave him the money to reclaim it, and he returned it to her.

Beaton Park

1. It was the Crown case that the appellants and the deceased met at Beaton Park, Wollongong at about 12.30am on 23 January. There, it was alleged, he was detained in the Mazda wagon in which his body was later found and driven to the home of witness A at Dapto, where the detention continued. This was the conduct the subject of the first count, the intended advantage being to obtain information about the stolen property.
2. Phone records in evidence disclosed that between 20 and 23 January there had been regular phone contact between the three of them and, in particular, Batcheldor had phoned the deceased and sent him a text message very shortly after midnight on the 23rd. It was the Crown case that this series of calls related, at least in part, to the stolen property and that in the course of them Batcheldor arranged the meeting at the park.
3. In the police interview Batcheldor said that the deceased had asked her if she was interested in buying from him an Xbox and some internet cards, and that they had arranged to meet at the park for that purpose. They arrived there independently, the deceased driving his own car. When they met, she said, he showed her the Xbox but she did not buy it as she did not have the money for it. She also asked him whether he had found out anything about her stolen property. He said that he had not but he was still trying. They then parted, and she did not see where he went. She did not suggest that Walsh was present on this occasion but, as will be seen, she did place him there in her evidence at the trial.
4. There was in evidence a very different account of the encounter at the park, but it was admissible only against Walsh. This was the evidence of another witness whose name is suppressed, and was referred to as "witness B." He was a prisoner with whom Walsh shared a cell at the MRRC while he was in pre-trial custody. According to witness B, Walsh admitted to him that he had detained the deceased and killed him. Part of what Walsh is alleged to have told witness B could only be an account of what happened at the park. He said that he was in a car with the deceased and had taken him to a grassy area to question him about the break-in. The deceased got out of the car and tried to run away, but Walsh chased him, dragged him back to the car and "chained him up inside the car with dog chains." He then drove the car to the home of witness A.

Witness A's home

1. I turn, then, to the evidence of witness A about the events in the early hours of 23 January. This, of course, was admissible against both appellants. It was the Crown case that, after the deceased had been detained in the Mazda wagon, the appellants returned to witness A's home at Dapto, Batcheldor travelling in her own car. According to witness A, Batcheldor had rung her to say that they were on their way over. It should be noted that such a call does not appear in the phone records. Batcheldor knocked on the front door and was admitted by witness A. Batcheldor asked her to open the electronically controlled door of the downstairs garage, so that Walsh could drive the Mazda into it. Witness A went down the internal stairs to the garage and turned the power on for that purpose, but she did not see Walsh drive in. She returned upstairs. Batcheldor was still there and she remained there for about an hour.
2. Before Batcheldor left, according to witness A, Walsh came upstairs from the garage and said that he had the deceased in the car. He had a set of keys and a mobile phone which, as I understand the Crown case, were alleged to be those of the deceased. He said that he was going to go back down to the garage and speak to the deceased to find out what he knew about the stolen property. He went back to the garage and returned a short time later. He said that the deceased had told him everything that he needed to know. He asked witness A to pour two glasses of drink, saying that he was going to go back to the garage and give the deceased a drink because "he'd done the right thing and told him where everything was." He also said that he was going to let the deceased out of the car to "have a drink and stretch his legs." Witness A poured the drinks and Walsh returned to the garage.
3. It was around this time that Batcheldor left. After she left, witness A heard the sound of "banging" from the garage, of a car door opening and shutting, and more sounds "just like thudding bangs." Walsh ran up the internal staircase and pushed past witness A, saying, "The prick nearly got me." He said that he had blood all over him, and he ran into the bedroom and showered. He did not say in terms that he had killed the deceased, but witness A thought it obvious that he had. She affirmed in cross-examination that neither she nor Batcheldor had gone anywhere near the garage during the period that Batcheldor was at the home, and that Batcheldor had left after Walsh had come up from the garage to obtain the drinks for the deceased and himself and before she had heard any noises from the garage.
4. At this point it is convenient to return to the evidence of witness B, admissible against Walsh only. According to that witness, Walsh told him that he returned from the park to witness A's home with the deceased restrained in the car. Having arrived, he got himself a drink and returned to the garage. He "slapped" the deceased, who refused to tell him anything and threatened that he would kill Walsh and his family if he were not released. Walsh responded, "Well, now you've said that, I can't let you go."
5. He went upstairs to get the deceased a "last drink." When he returned, the deceased had freed one of his hands. Walsh kicked him in the face and, having knocked him out, he put a length of dog chain around his neck, put his feet on the back of the rear seat and pulled the chain back. He did so until he heard cracks in the deceased's neck and he stopped moving.

Subsequent events

1. Returning to the evidence of witness A, she said that after Walsh had showered he put the clothes he had been wearing, including his sneakers, into a plastic bag. At some time thereafter Batcheldor returned to the home. In her presence, Walsh told witness A that the dash of her car had been smashed. She was "obviously annoyed" that her car had been "wrecked" because it was the only one she had. Batcheldor said, "Don't be a spoilt brat, we'll get you a new car."
2. Also in Batcheldor's presence, Walsh told witness A that she would need to move the deceased's car from where it had been left, so that if anyone who knew that he had met Walsh and Batcheldor at the park would assume that he had just left in his car. He had witness A disguise herself and, in lieu of gloves, she put socks over her hands. Batcheldor then drove her to Beaton Park and pointed out the deceased's car. She got into that car and followed Batcheldor to a point near the Botanical Gardens. There she left the car and returned to Batcheldor's car.
3. The following evening, 24 January, witness A accompanied Batcheldor on a journey to Kiama, where Batcheldor obtained two masks from a friend of hers. She gave that friend a false explanation of why she needed them. Witness A described them as rubber masks with breathing holes in them. As I understand it, it was the Crown case that Walsh saw the need of a mask to cope with the odour emanating from the deceased's body during the process of disposing of it.
4. The two women then repaired to witness A's home. There Walsh told them that he was going to get rid of the Mazda by burning it. Apparently to provide witness A with an alibi, it was agreed that Batcheldor was to drive her to Wollongong Hospital, ostensibly to get syringes from a vending machine there. At the hospital witness A was to walk to a toilet area where her image would be caught by CCTV. Walsh told witness A that he would ring her to pick him up after he had set fire to the Mazda, and it was agreed that Batcheldor would organise a car for her to do so.
5. Batcheldor drove witness A to the hospital. Later witness A received a call from Walsh giving her directions about where to pick him up and, in the event, Batcheldor allowed her to use her car to do so. Her journey required her to negotiate the Macquarie Pass, from which she turned to find Walsh and the burning car.
6. At this point also it is convenient to turn to the evidence of witness B. According to that witness, Walsh told him that he covered the windows of the car so that the body could not be seen. He went back to the house and, when he returned to the garage, he noticed blood, faeces and urine from the deceased inside the car. He obtained a change of clothes, put on a facemask, and drove the car into bush. There he changed his clothes, threw the clothes and shoes he had been wearing into the car, threw fuel over the car and ignited it.
7. Returning again to the evidence of witness A, she said that after she picked Walsh up they returned to her home. There he showered and put the clothes he was wearing, together with two mobile phones that were in the bedroom, into a backpack. Witness A was to return Batcheldor's car to her, and Walsh told her to take the backpack with her, saying that it had to be burnt. Witness A drove to Batcheldor's home with the backpack in the boot. She told Batcheldor that her car had been burnt out, that the deceased's body was in it, and that the backpack containing Walsh's clothes needed to be burnt. Batcheldor rang her boyfriend, Mick Perman. He came over and Batcheldor asked him to dispose of the backpack. When he asked what was in it, she said, "Please don't ask questions, Mick, just can you do it for me, there's one thing I need you to do, that's that." He took the backpack to his own car, and witness A never saw it again.
8. There was in evidence a text message sent by Batcheldor to Perman, at 11.31pm on 25 January, which included the following: "I'm really sorry I got you involved but I do thank you very much for helping me. I would be fucked if you didn't and will never forget what you did for me … ."
9. Witness A also said that she had two English Staffordshire dogs, which were very strong and had to be restrained by substantial chains when they were outside her home. She had kept a set of chains in her Mazda wagon for that purpose.
10. Evren Agdiran gave evidence that in late January he had a conversation with Batcheldor in which she said, "Do you know if there's a website where you can check where there are CCTV cameras like at Macquarie Pass or Beaton Park because that's where we met him, at Beaton Park?" Mr Agdiran said that he did not know if there was any camera at either location.
11. In the recorded police interview Batcheldor gave a brief account of her visit to Kiama and to Wollongong Hospital on 24 January. She said that she did go, with witness A, to the general area in Kiama where she was alleged to have picked up the facemasks. She claimed, however, that that was for an entirely innocent purpose: to visit a friend of hers, Jason Alison, to confirm an arrangement for her to stay at his place for a few days. They then left and she drove witness A back to her home at Dapto.
12. She went on to say that she returned to her home at Albion Park. A friend of hers, Stacey Callaghan, visited her there that night to help her prepare her insurance claim for the stolen property. She received a call from witness A asking her to drive her to Wollongong Hospital. She did so, waiting in the car while witness A went in to get some needles. Witness A then drove back to Batcheldor's home, dropped her off, and retained the car to get herself home.
13. Stacey Callaghan could not be found at the time of the trial, and parts of a statement she made to police were read to the jury. This supported Batcheldor's account to the extent of confirming that she had gone to her home to assist with the insurance claim, and that she remained at the home to mind the children while Batcheldor went out for a period. However, she did not see witness A, who was known to her, that night.
14. This is a selective summary of the evidence of major witnesses and, of course, there was other evidence in the Crown case. What I have set out, however, is sufficient for the purposes of the appeal.

Batcheldor's case

1. Batcheldor gave evidence at the trial. There is no need to refer to her evidence concerning the break-in, her enquiries about it and her dealings with the deceased at that early stage. It is sufficient to focus upon those aspects of her evidence relevant to the appeal.
2. As to the meeting at Beaton Park, she maintained her account to the police that this related to the proposed purchase of the deceased's Xbox, but she expanded upon it significantly. She said that before the night of 23 January the deceased had rung her several times, asking her to meet him. She assumed it was because he had information about the break-in. She rang him just after midnight on the 23rd and he suggested the meeting at the park. Walsh was with her at this time.
3. She drove to the park in her car, accompanied by Stacey Callaghan. Walsh did not like the idea of the two women going by themselves, so he followed them in the Mazda wagon. The deceased arrived at the park in his own car, and they had the conversation about the Xbox. Walsh arrived, the two men shook hands, and Walsh asked the deceased to go with him so that they could talk about anything he knew concerning the break-in. The deceased was happy to do so, the two men got into the Mazda, and they drove off.
4. She said that she and Callaghan also left. They met up with Agdiran and the three of them drove to a hotel at Corrimal. However, by the time they got there it was too late for them to be admitted. She received a call from the deceased, who said that he and Walsh were near her home and that they intended to visit her. She set off with Callaghan, and she called the deceased when she reached home. He and Walsh arrived, and the deceased told her that he had found out that one Wayne Nelson, whom she knew, had stolen her property and buried it in his backyard.
5. The two men then left, saying that they were going to witness A's home to have a couple of drinks. That, she said, was the last time she ever saw the deceased. Callaghan left not long thereafter, and she decided to go to witness A's home herself as she was "freaking out" about the fact that her home had been broken into and she did not want to stay there alone.
6. She drove to witness A's home. After she arrived Walsh came upstairs. She did not see where he had come from and she did not go anywhere near the garage. Walsh told witness A to move the deceased's car and asked Batcheldor to give her a lift for that purpose. She did so, thinking that the deceased wanted his car moved because he and Walsh had been drinking.
7. As to the journeys to Kiama and Wollongong Hospital on the following day, she maintained the account she had given police in the interview.
8. As to the backpack which she asked Perman to dispose of, she confirmed that witness A arrived at her home with her car on the morning of 25 January. She was shocked when witness A told her that Walsh had burnt out her own car with the deceased in it, describing herself as "a mess." She confirmed that witness A said that there was a bag in the boot of the car which she wanted burnt. She did not see the bag and did not know what was in it, and said that she was not "getting rid of anything." She rang Perman and asked him to come over because she did not know what to do. She said that when he arrived he asked witness A what was in the bag, but she did not tell him. He then took the backpack away with him.
9. Generally, she said that she "never agreed with anybody to detain anybody", and "never wanted anybody to get hurt."
10. A statement made by Stacey Callaghan to Ms Batcheldor's solicitor was read. It confirmed that she had gone to Beaton Park with Batcheldor, and lent support to her account of events there. It also supported Batcheldor's account that thereafter they went to Corrimal, with Agdiran, and then returned to her home.
11. Jason Alison gave evidence that on 24 January Batcheldor arrived at his home at Kiama, enquiring whether an offer he had earlier made to her to stay at his home was still open.

Walsh's case

1. Walsh also gave evidence. For the purposes of the appeal, it can be summarised briefly.
2. In his case also there is no need to review the background of the break-in to Batcheldor's home and their initial contact with the deceased, except to note what he had to say about his visit to the deceased's flat with Batcheldor and Karaoglu. He said that, while there was no shouting, he was quite assertive and spoke to Michael Small in such a way that he had "every right to feel intimidated." When the deceased came to the flat, he said, Batcheldor spoke to him calmly but he demanded to know if the deceased had any information about his coin collection.
3. His description of the meeting at Beaton Park was consistent with that of Batcheldor. He confirmed that he also drove to the park because he did not think that Batcheldor and Callaghan should go there alone. When he arrived he heard discussion between Batcheldor and the deceased about buying "things". He again asked about his coins but the deceased said that he had found out nothing about them. He decided to offer the deceased drugs to persuade him to "do the right thing", an offer which the deceased accepted. The deceased locked his own car and willingly joined Walsh in the Mazda for a journey to witness A's home, where the drugs were to be supplied.
4. At the home Walsh drove into the garage, saying in evidence that he had opened the garage door with a remote control. He left the deceased in the car, telling him that he was going to get some clean syringes, some "gear" and some drinks. He went upstairs, obtained two clean syringes and drugs, and had witness A pour two drinks.
5. When he returned to the garage he saw the deceased crouching down near the door. He stood up, holding a screwdriver and demanded drugs. As Walsh moved towards the car, the deceased lunged at him and stabbed him on the left side of his waist with the screwdriver. They wrestled and Walsh put the deceased into what he called a "guillotine hold", a hold which he had not used before. They fell to the floor, the deceased's head striking it. Walsh released him, seeing that he did not move and appeared unconscious. He could not find a pulse.
6. Walsh picked the deceased up, put him into the front passenger seat and went upstairs. According to him, he said to witness A, "The prick nearly got me, I think I killed him." He dressed his wound and put his clothes, which were bloody, into a garbage bag. He returned to the garage, picked up the deceased's phone and removed his car keys from his pocket. He could get no response from the deceased and could tell that he was dead.
7. He put the deceased's phone and keys in the upstairs bedroom. He told witness A to call Batcheldor so that they could move the deceased's car. She did so and Batcheldor arrived.
8. On the following day he made the plan to dispose of the deceased's body. Having arranged for witness A to pick him up after he had set fire to the car, he set off on the Monday. He took tins of paint and lacquer to set fire to the car. He denied using a mask, or ever asking anyone to obtain a mask for the purpose of disposing of the body. He said that he coped with the odour of the body simply by winding down the driver's window. While driving up Macquarie Pass the body shifted in the seat. He stopped, and used the chains which were kept in the car to secure the body.
9. He drove to the end of a bush track, where he set the car alight. Before doing so he threw into it the screwdriver which the deceased had used to stab him. Asked in cross-examination why he disposed of that screwdriver, which might have supported his account that he was acting in self-defence, he said that he panicked and did not know what to do.
10. As to the evidence of witness B, he said that much of what that witness said was wrong. He did speak to witness B about what had happened, but he gave him the same account as he had given in evidence. Specifically, he denied telling witness B that he had choked the deceased in the car.

Batcheldor's appeal

1. In this court Ms Batcheldor was represented by Mr David Dalton SC. Neither he nor the Crown prosecutor in this court had appeared at the trial. Grounds of appeal had been filed for Batcheldor before Mr Dalton came into the matter. When he did the grounds were recast to some extent, and not all of those were pursued at the hearing. I shall not deal with them in order, but shall commence with the ground which I think is the most significant of them.

The directions as to constructive murder (ground 8)

1. The charge of murder against Batcheldor was founded upon what is loosely termed felony murder but has come to be known as constructive murder. It was alleged that she was complicit in an act of Walsh causing the death of the deceased done in the course of the commission by both of them of a crime punishable by imprisonment for 25 years: s 18(1)(a) of the Crimes Act. Specially aggravated kidnapping is such a crime. The ground, as refined in oral argument, was that the trial judge erred in failing to direct the jury as to the mental element required in Batcheldor's case, that is, that she contemplated the infliction of actual bodily harm upon the deceased as a possible incident of the kidnapping offence.
2. The trial judge did not give such a direction. He provided the jury with written directions as to the elements of each count against each appellant, upon which he expanded in oral directions. The written directions on the case of murder against Batcheldor set out as elements: 1. the death of the deceased at the relevant time; 2. that his death was caused by a deliberate act of Walsh; and 3. that that act was done by Walsh during the commission by him, or some accomplice with him, of a crime punishable by imprisonment for 25 years, namely, detaining the deceased for advantage in circumstances of special aggravation.
3. In oral directions his Honour repeated those elements, noting that it was the third element which might be the focus of their deliberations. As to that element, he emphasised that the jury would have to be satisfied of Batcheldor's involvement in what he described as the foundational crime. Accordingly, they could not find her guilty of the murder unless they also found her guilty of the first count.
4. The issue of the criminal responsibility of what I might term secondary parties in a case of constructive murder was considered by this court in the well known decision of Reg v Johns [1978] 1 NSWLR 282. That was the all too familiar case of an attempted robbery with tragic results. The involvement of the appellant, Johns, was as an accessory before the fact to that crime. Two other men, Watson and Dodge, set out to rob the victim, one Morriss. Watson was carrying a loaded pistol. When the two of them confronted Morriss there was a struggle and Watson fired the pistol, fatally killing him.
5. Watson was himself killed before the matter came to trial. Dodge and Johns were jointly tried for murder and for armed assault with intent to rob with wounding (s 98 of the Crimes Act). Dodge was classified as a principal in the second degree and, as I have said, Johns as an accessory before the fact. The leading judgment in this court was given by Begg J, Street CJ agreeing in a separate judgment and Lusher J dissenting. Begg J set out a lengthy extract of the summing-up of the trial judge (O'Brien J) at pp 292-5 of the report. O'Brien J had defined murder in two parts, the first being on the basis of an intent to kill or inflict grievous bodily harm and the second being constructive murder. His Honour had instructed the jury about common purpose and directed them, as to both bases of murder, how Dodge and Johns might be criminally responsible for the killing of Morriss.
6. For present purposes it is sufficient to set out what O'Brien J had to say about constructive murder (quoted at 294-5): "Under the second part of the definition, the Crown submits that there was a design to which Dodge and Johns gave their assent and encouragement by which Watson, armed with an offensive weapon, would assault Morriss with intent to rob him; that it must have been within their contemplation that Watson might, during the assault with intent to rob Morris, produce that pistol, or immediately after the assault he might produce it, [and] whether or not in pursuance of the common design and whether or not intentionally it might be discharged by him. The very fact that he was armed with an offensive weapon when he went to the robbery must, the Crown contends, have meant for them the possibility that in the course of it all somebody might get killed by the discharge of that pistol whether or not it was necessary for the purpose and done for the purpose and whether or not it was intentional or otherwise. If they were engaged in such a purpose of armed robbery, armed assault with intent to rob, and in the course of it Watson fired the pistol, whether or not accidentally and whether or not in furtherance of the common design, so long as it was a contingency which they had in mind, then the discharge of that weapon killing Morriss was murder in the first degree in Watson and to that murder Dodge was an accessory at the fact, or as it is now called a principal in the second degree, and Johns was an accessory before the fact. It is upon the Crown to prove each of these elements if it is to visit Dodge and Johns with complicity in murder by Watson under the second part of the definition."
7. In Johns, of course, the focus was on the complicity of an accessory before the fact, the issue being whether that complicity should be determined on the same basis as that of a principal in the second degree. Street CJ and Begg J held that it should. It was on that issue that Lusher J dissented. Relevantly for present purposes, however, Begg J (at 295) held that the directions of the trial judge "conveyed a precise and accurate indication of the issues which arose at the trial."
8. Street CJ, in his concurring judgment, examined the history of the law relating to an accessory before the fact, including the development of a subjective element in determining the ambit of the criminal responsibility of such an accessory. The Chief Justice concluded, in the following well known passage (at 290): "… I am of the view that an accessory before the fact bears, as does a principal in the second degree, a criminal liability for an act which was within the contemplation of both himself and the principal in the first degree as an act which might be done in the course of carrying out the primary criminal intention - an act contemplated as a possible incident of the originally planned particular venture."
9. This court's decision was affirmed by the High Court: Johns v the Queen (1979-80) 143 CLR 108. It is not necessary to examine the judgments in that case, except to note that the passage from the judgment of Street CJ quoted above received the express approval of Stephen J (at 122) and Mason, Murphy and Wilson JJ (at 130-1).
10. R v Sharah (1992) 30 NSWLR 292 was another case of a robbery in which a person was shot dead. The appellant in that matter was involved with a man named Attard in the robbery of a shop. Attard was armed with a loaded sawn-off shotgun. The victims of the robbery were members of a family and, for convenience, are referred to in the judgment by their Christian names. In the course of the robbery Attard wounded one of them, John, by striking his head with the barrel of the gun. Money was taken but there was a struggle, and as the appellant and Attard tried to flee from the scene Attard fired the weapon, killing Nick, who was John's son.
11. The two men were tried on two counts, the murder of Nick and the armed robbery with wounding of John (also s 98 of the Crimes Act). Here also, murder was left on the basis of intent and constructive murder. As to the latter, the Crown case was that the killing of Nick occurred during or immediately after the armed robbery with wounding of John.
12. It is not necessary to examine the grounds of appeal in Sharah. It is sufficient for present purposes to refer to the manner in which Carruthers J, with whom Gleeson CJ and Smart J agreed, set out the elements of constructive murder and armed robbery with wounding in respect of the appellant. As to constructive murder his Honour said (at 297): "As to felony-murder (upon the assumption that the foundational crime was the offence under s 98) it was incumbent upon the Crown to prove beyond reasonable doubt: (i) that there was a common purpose between the appellant and Attard in company to rob John whilst Attard was, to the knowledge of the appellant, armed with an offensive weapon, namely, a sawn-off double-barrelled shotgun; (ii) that during the course of the armed robbery Attard wounded John and during the course of such armed robbery with wounding or immediately thereafter, Attard discharged the gun causing the death of Nick; (iii) that the discharge of the gun by Attard during or immediately after the armed robbery with wounding of John, was a contingency which the appellant had in mind, whether or not the gun was fired intentionally and whether or not in furtherance of the common unlawful purpose." As to that third element, his Honour referred to Johns and, particularly, the directions of the trial judge set out in the judgment of Begg J at 294-5 (quoted above).
13. Applying these principles to the present case, to establish Batcheldor's complicity in the murder it was necessary to show that she contemplated the infliction of actual bodily harm, whether by Walsh or herself, upon the deceased as a possible incident of the kidnapping in which they were jointly involved. It appears to me that, in determining her criminal responsibility for the killing of the deceased, her position is no different from that of the man Dodge in Johns or the appellant in Sharah.
14. Rule 4 applies to this ground, as it does to most of the others. However, the Crown prosecutor in this court raised the decision in Sharah and properly acknowledged that leave under the rule should be granted. It is regrettable that at the trial neither counsel for Batcheldor nor the Crown prosecutor assisted the trial judge by reference to this authority. In this court the Crown prosecutor sought to meet this ground by reliance upon the proviso, to which I shall return.
15. In the course of oral argument there was reference to R v R & G (1995) 63 SASR 417, 79 A Crim R 191, a decision of a bench of five judges of the South Australian Court of Criminal Appeal. In that case the court examined the common law of felony murder, which applied in that State at the time of the incident the subject of the proceedings. The leading judgment was delivered by King CJ. The Chief Justice (at 420, 193) expressed the common law rule as it had been formulated in R v Van Beelen (1973) 4 SASR 353 at 403: that "it is murder to cause death in the commission of or in furtherance of the commission of a felony involving violence or danger."
16. The case at hand arose from a robbery by two men, R & G, both of them armed with knives. In the course of the robbery R fatally stabbed one of the victims. Both were found guilty of murder. The issue for consideration of the court was the basis upon which G might be found guilty of the murder under the felony murder rule.
17. Among the authorities referred to by King CJ (again at 420, 193) was R v Betts & Ridley (1930) 22 Cr App R 148, his Honour noting that it was held in that case "that a prinicpal in the second degree to a crime of robbery with violence was guilty of murder when the principal in the first degree, contrary to the accessory's expectation, inflicted violence to such a degree as to cause death." His Honour went on to refer to a passage in the judgment of Philp J in R v Solomon [1959] QdR 123 at 126-7: "By the common law if the victim of robbery, which is a felony involving violence, be killed in the course of the robbery all parties to the robbery are guilty of murder. The probability or possibility that homicide would or would not be done is irrelevant. The fact that the homicide occurred independently of the exercise of the will of one of the accomplices would not exonerate him."
18. The court rejected an argument by counsel for G that it should "place the criminal liability of a principal in the second degree or an accessory before the fact to felony, for a murder committed in the course of the felony, on the basis of the rule as to common purpose laid down in Johns" (referring to the High Court decision). King CJ said (at 421, 194): "Johns was decided in accordance with the law of New South Wales. The felony murder rule does not form part of the law of that State. An equivalent rule is enacted by s 18 of the Crimes Act 1900 (NSW) in relation to crimes punishable by penal servitude for life, but it is confined to the commission of the crime 'by the accused, or some accomplice with him' (emphasis added). Section 18 therefore had no application to the factual situation in Johns as the appellant in that case was not with the actual perpetrator but was an accessory before the fact. The restriction of the liability of the accessory to acts which were within his contemplation, has no application in South Australia to a murder committed in the course of the commission of a felony."
19. With respect, that was not the reasoning in Johns, either in this court or the High Court. The effect of Johns was to equate for this purpose the position of an accessory before the fact and a principal in the second degree, not to distinguish them by reference to the terms of s 18. Whilst acknowledging the persuasive force of a five judge decision of the South Australian Court of Criminal Appeal, the decisions in Johns and Sharah have settled the law in this State.
20. However, the issue does not end there. In Johns the focus was upon the complicity of the secondary parties, especially the accessory before the fact, in the murder. The judgments did not deal in terms with the foundational offence of armed assault with intent to rob with wounding. However, in Sharah Carruthers J did address the offence of armed robbery with wounding, as follows (at 297-8): "In relation to the s 98 count, it was incumbent upon the Crown to prove beyond reasonable doubt: (i) that there was a common purpose between the appellant and Attard in company to rob John whilst Attard was, to the knowledge of the appellant, armed with an offensive weapon, namely, a sawn-off, double-barrelled shotgun; (ii) that during the course of the armed robbery Attard wounded John; (iii) that the appellant contemplated that in the carrying out of the common unlawful purpose of armed robbery such wounding might occur."
21. This, of course, is in accordance with the statement of principle in the judgment of Street CJ in Johns which I have quoted above. To establish the appellant's guilt of the armed robbery with wounding it was necessary to establish not just that a wounding occurred, but also that the appellant contemplated a wounding as a possible incident of the criminal enterprise. Of course, if that were established his complicity in the murder (on the basis of constructive murder) would necessarily follow.
22. In many cases of constructive murder arising from an armed robbery with wounding, the wounding charged is the same act as that which caused the death. This was not the case in Sharah. The s 98 count was based upon the injury to John when he was struck by the barrel of the gun. The murder count was based upon the shooting of Nick. It may be for this reason that Carruthers J, in setting out the appropriate directions for constructive murder, included the element that the appellant had in mind the discharge of the weapon as a contingency of the armed robbery. However, it is not apparent that that additional direction was required. The complicity of the appellant in the s 98 offence through his contemplation that someone might be wounded, whoever that person might be, whether it might be one person or more than one, and by whatever means, was sufficient to establish his guilt of murder.
23. In my view, the same principle applies to the present case. An essential ingredient of the offence of specially aggravated kidnapping was the infliction of actual bodily harm upon the deceased. To establish Batcheldor's complicity in that offence, it was necessary to prove that she contemplated the possibility that actual bodily harm might be occasioned to the deceased, whether by Walsh or herself. Here also, if that were proved her complicity in the murder would be established.
24. I should say that this is an issue which arose in the course of oral argument in this court. The trial judge did not direct the jury in that manner, he was not asked to, and it was not the subject of a ground of appeal. Nevertheless, it is a matter which fairly arose in the course of discussion about Batcheldor's complicity in the murder and, in my view, should be determined.
25. Accordingly, the deficiency in his Honour's directions was not in relation to the elements of constructive murder but, rather, in his directions about Batcheldor's complicity in the specially aggravated kidnapping. Provided the jury had been directed as to the contemplation of harm necessary to establish her guilt of that offence, his Honour's directions on murder were sufficient. It is on this basis that I would grant leave under r 4 and uphold this ground.

The directions as to the element of "in company" in the first count (ground 6)

1. As I have said, the first count alleged an offence under s 86(3) of the Crimes Act. Section 86(1) provides for the basic offence of kidnapping, that is, detaining a person for advantage. Sub-section (2) provides for the aggravated offence, that is, that the offence was committed in company. The trial judge left both of those offences to the jury as available alternative verdicts.
2. As to the offence charged, specially aggravated kidnapping, his Honour set out in written directions the elements of the basic offence: "1. That the appellant detained the deceased; 2. that she did so knowing that he did not consent to that detention; and 3. that she did so with the intention of obtaining an advantage by that detention." The written directions explained that these were the elements of the basic offence and that, to establish the offence charged, two further elements would have to be proved: "4. that the appellant committed the offence in the company of Walsh; and 5. that actual bodily harm was occasioned to the deceased at the time of the detention."
3. In oral directions, his Honour explained the notion of being in company as follows: "If two or more persons are present, and share the same purpose, to detain the alleged victim for advantage, then they will be in company even if the alleged victim is not aware of that other person. So the fourth element is that you have to be satisfied that the offence was committed by the accused, Lauren Batcheldor, in the company of the accused, Richard James Walsh." After the jury had retired, his Honour gave a direction to the same effect in answer to a question from them seeking that the phrase "in company" be re-defined.
4. This ground complains that those directions were inadequate to convey the notion of being in company. Mr Dalton referred to FP v R [2012] NSWCCA 182 (reported in part in 224 A Crim R 82), in which RA Hulme J, with whom McClellan CJ at CL and Schmidt J agreed, considered the issue at [115]-[126]. His Honour reviewed authorities, including the leading judgment of Kirby J (with whom Heydon JA and Greg James J agreed) in R v Button and Griffen [2002] NSWCCA 159, 54 NSWLR 455. RA Hulme J set out the relevant principles from that case at [121]-[122] of FP. His Honour noted that Kirby J extracted from previous authorities certain propositions, and continued: "[121] … Relevantly, those propositions were: • the offenders must share a common purpose to commit the offence in question; • physical presence of one or more other persons is required; • participation in the common purpose, without physical presence, is insufficient; and, • 'The perspective of the victim (being confronted by the combined force or strength [of] two or more persons) is relevant, although not determinative. If two or more persons are present, and share the same purpose, they will be 'in company' if the victim is unaware of the other person'."
5. Relevantly to the present case, his Honour continued at [122]: "[122] Kirby J then turned to consider what 'physical presence' meant. He described this as 'an elastic concept' and proceeded to give two hypothetical examples. One was of a sexual assault in a large house involving a number of individuals. He said that it would not necessarily mean there was not the required physical presence if the victim was taken into a bedroom by one offender and the door closed; even if the bedroom was upstairs so that there was some distance separating the offender and the other members of the group. There were limits, however, and these were to be determined according to the following test stated by his Honour (at [125]): The test is the coercive effect of the group. There must be such proximity as would enable the inference that the coercive effect of the group operated, either to embolden or reassure the offender in committing the crime, or to intimidate the victim into submission."
6. FP itself was a case of sexual assault in which certain counts were alleged to have been committed in company. RA Hulme J expressed the directions required in that case at [126]: [126] "Having regard to these authorities, the direction that the trial judge was required to give to the jury in the present case in relation to [the relevant counts] involved the following components: 1. that the alleged co-offender…had sexual intercourse with the complainant without her consent, knowing that she was not consenting; 2. that the applicant shared a common purpose that this would occur; and 3. that the applicant was physically present when it occurred, such presence being sufficiently proximate if (a) it afforded encouragement to the alleged co-offender or (b) it operated to intimidate or coerce the complainant."
7. Mr Dalton submitted that a direction about physical presence to the effect of the third point in that paragraph should have been given, and should have been explained by reference to the evidence. He pointed out that, while Batcheldor acknowledged having been present with Walsh and the deceased at Beaton Park, there was no direct evidence admissible against her that at that point she was involved with Walsh in the detention of the deceased. Indeed, the only direct evidence - that of Callaghan, Batcheldor herself and Walsh - was to the contrary. The Crown sought to establish her involvement by inference, primarily from the evidence of witness A.
8. The evidence of witness A about the arrival of the appellants at her home might support the inference that they were together at the park when the deceased got into the Mazda, and her evidence of what occurred thereafter supports the inference that he was detained at that point. Her evidence clearly supports the inference that the deceased was detained in the garage while Batcheldor was upstairs at that home. On the other hand, it is clear from her evidence that Batcheldor was never in the garage. In these circumstances, a matter which the jury had to determine was whether her presence provided encouragement to Walsh or tended to intimidate or coerce the deceased.
9. The effect of the Crown prosecutor's submission was that that inference was readily available and that the issue of being in company was not central to Batcheldor's defence case, which was that she had not been involved in a detention at all. His submission was that, "in the rather idiosyncratic circumstances" of the case, the directions his Honour gave were adequate. I cannot accept that argument. A finding that the offence was committed in company was necessary to establish the first count, and the jury were not properly instructed about that matter. In my view, the direction for which Mr Dalton contended was essential.
10. Here also, his Honour was not referred to the authority which I have cited and no redirection was sought at the trial by counsel for either appellant or the Crown prosecutor. Rule 4 applies but, in my view, the matter is of sufficient significance to warrant the grant of leave. This ground is made out.

Unreasonable verdicts (ground 5)

1. Mr Dalton argued that the verdicts of guilty of both counts were, in any event, unreasonable. At the trial there were challenges to the credibility of major witnesses. Put shortly, both Karaoglu and Agdiran acknowledged problems with their memory because of drug use, while witness A received the benefit of an indemnity from prosecution for giving her evidence. However, Mr Dalton did not rely on those matters. His submission was that the evidence admissible against Batcheldor, taken at face value, was insufficient to establish her guilt to the requisite standard.
2. Also put shortly, Mr Dalton acknowledged the background of the theft of property from Batcheldor's home and her interest in finding out who was responsible for it. This might have provided her with a motive to join Walsh in questioning the deceased about the matter and, perhaps, using a measure of intimidation to extract answers from him. However, Mr Dalton argued, the evidence falls short of establishing her participation in the detention of the deceased, nor an anticipation on her part that Walsh might detain and/or assault him.
3. Mr Dalton relied upon the lack of any direct evidence that Batcheldor was involved in the detention of the deceased at Beaton Park, noting that the direct evidence was to the contrary. He also noted the absence of any entry in the phone records of the call which witness A alleged Batcheldor made to her saying they were on their way over. Accepting that the appellants arrived at witness A's home at the same time, he said that it was possible that Batcheldor asked witness A to open the electronically controlled door to the garage at the request of Walsh, who had found that he could not get into it.
4. Mr Dalton relied on the evidence that Batcheldor then remained upstairs in the house and did not enter the garage, and that she left before the incident which led to the death of the deceased. The fact that she was at the house for a period, he argued, fell well short of establishing that she was relevantly in company with Walsh and was insufficient to prove her complicity in the detention of the deceased, let alone his death.
5. Finally, Mr Dalton submitted that the evidence of Batcheldor's actions after the event in moving the deceased's car from Beaton Park, obtaining the masks, taking witness A to Wollongong Hospital, providing her car to witness A to pick up Walsh after he had set fire to the Mazda, and having the backpack disposed of, did not necessarily point to her having been involved in either offence as a principal. They were consistent with her being an accessory after the fact.
6. The Crown prosecutor in this court put the Crown case in this way:

• It was Batcheldor who initiated and pursued the enquiries into the break-in at her home, including the visit to the deceased's unit on 18 January and the phone calls thereafter.
• After the visit to the pawn shop, when she came to suspect the deceased of involvement in the break-in, she was obviously angry. She told Mr Agdiran that she was going to smash the deceased's place up and told the police that she wanted to go immediately to his house and punch him in the head.
• She went to the deceased's unit not alone, but in the company of Walsh and Karaoglu. The behaviour of the two men towards Mr Small was intimidating, and towards the deceased, when he arrived, was aggressive.
• On Batcheldor's evidence, her primary purpose in meeting the deceased at Beaton Park was to pursue her enquiries about the stolen property, not the possible purchase of an Xbox. The effect of the evidence of witness A was that the two appellants left the park, Walsh driving the Mazda in which the deceased was a passenger, and arrived at her home at the same time.
• Batcheldor remained at witness A's home for a period while Walsh and the deceased were in the garage. Witness A's evidence conveyed that she was there on the first two occasions that Walsh came upstairs, including the second occasion on which he said that he was going to let the deceased out of the car to have a drink and stretch his legs. This, the Crown prosecutor argued, clearly conveyed that the deceased was detained and was not free to leave.
• While it was accepted that Batcheldor had left the home at the time the deceased was killed, she returned. The Crown prosecutor argued that her departure was an interruption of her participation in the detention, not the termination of it.
• Thereafter she took various steps to assist in covering up the crimes. The Crown prosecutor argued that, while these steps of themselves were consistent with her being an accessory after the fact, they had to be viewed in light of the other evidence. Viewed in that way, they supported the conclusion that Batcheldor was involved in both crimes in the manner for which the Crown contended.
• Finally, the Crown prosecutor relied upon her enquiry of Agdiran whether there were CCTV cameras at Macquarie Pass and at Beaton Park, and her statement to him that it was at Beaton Park that "we" had met the deceased.

1. I am persuaded by the submissions of the Crown prosecutor that there was evidence supporting the verdicts. It was open to the jury to reject Batcheldor's evidence insofar as it was inconsistent with the evidence of relevant events in the Crown case. Viewed as a whole, the evidence was capable of establishing that she was a participant in the detention of the deceased, that she was relevantly in company with Walsh in doing so, and that she foresaw the possibility of the infliction of actual bodily harm upon the deceased during that detention. This ground is not made out.

The proviso

1. As I have said, the Crown prosecutor submitted that if ground 8 (relating to his Honour's directions on constructive murder) was made out, the court should find that no substantial miscarriage of justice resulted and apply the proviso. I reject that submission. The directions the subject of that ground, and of ground 6 (relating to the element of in company), were important and should have been given. Further, while I have found that the evidence was adequate to support the verdicts, it cannot be said that a jury, properly instructed, would inevitably have found her guilty.
2. The two successful grounds are sufficient to warrant an order that Batcheldor's convictions be set aside and a new trial be had. However, it is appropriate to deal briefly with the other grounds which were not abandoned, even though they were not strongly pressed by Mr Dalton. Rule 4 applies to all of them.

Other grounds

1. Ground 1, insofar as it was pursued, complained that his Honour failed adequately to direct the jury that the evidence of witness B could be used only against Walsh. The particular concern expressed was that the jury might have used that evidence to supplement any deficiency in the evidence admissible against Batcheldor concerning the meeting at Beaton Park. In particular, there was a passing reference in the witness' evidence which could have conveyed that Batcheldor had been in a car with Walsh at the park. The Crown prosecutor promptly interrupted the witness, so that no more was said about it. In the course of the witness' evidence in chief his Honour clearly directed the jury that his evidence was admissible only against Walsh, as he did again in summing up. No redirection was sought at any stage.
2. Ground 2 was that his Honour should have given a warning under s 165 of the Evidence Act 1995 about the evidence of Agdiran and Karaoglu, in the light of their admitted drug use and poor memory. However, these were matters affecting their reliability well within the understanding of ordinary people and they did not call for a judicial warning: R v Baartman [2000] NSWCCA 298, per Kirby J at [62] ff. No such direction was sought.
3. Ground 4 asserted a failure by the Crown prosecutor at the trial to observe the rule in Browne v Dunn (1894) 6 R 67 in cross-examination of Walsh. Put shortly, the complaint was that the Crown prosecutor at the trial had propounded a case that Batcheldor was in company with Walsh when the deceased was detained in Beaton Park without having cross-examined Walsh, whose evidence supported that of Batcheldor, about her involvement. Nor was any direction given to the jury about that matter. The Crown prosecutor in this court pointed out that he was cross-examined briefly on the topic, and that Batcheldor herself was cross-examined extensively about it.
4. This ground also complains of the failure of the Crown prosecutor to lead certain evidence from the crime scene officer, Sgt Debnam, relating to the issue of the Xbox. In the course of submitting to the jury that they should reject Batcheldor's account of meeting the deceased at Beaton Park for the purpose of purchasing an Xbox, the Crown prosecutor pointed out that Sgt Debnam had examined the deceased's car and there was no suggestion that there was an Xbox in it.
5. On appeal Sgt Debnam's statement was produced, and attached to it were photographs of items in the car, including bags said to be big enough to contain an Xbox. This evidence was not led in chief. Nor, however, was it elicited in cross-examination by Batcheldor's trial counsel. The Crown prosecutor in this court added that, while Batcheldor had told police in the recorded interview that the deceased had shown her the Xbox at the park, the effect of her evidence at the trial was that there was discussion about an Xbox but she did not say that one was actually produced.
6. No objection was raised about these matters, nor was any direction sought.
7. Ground 7 was that his Honour erred in failing to give a circumstantial evidence direction. Again put shortly, the argument was that the Crown case against Batcheldor was circumstantial, in that it relied upon inferences from the evidence: particularly, but not only, that of witness A. A question necessarily arose whether the conduct of Batcheldor proved by the evidence was susceptible of an innocent explanation, that is, an explanation consistent with her innocence of the crimes charged. Particularly was this so, it was said, in relation to her conduct after the detention and killing, which might be seen as demonstrating no more than her involvement as an accessary after the fact. The conventional circumstantial evidence direction, Mr Dalton submitted, would have enlightened the jury's approach to these issues.
8. In response, the Crown prosecutor pointed out that the Crown case plainly rested upon conclusions which might be drawn from the evidence, and that his Honour had given the usual direction in general terms about the drawing of inferences. This included the responsibility to determine carefully whether an inference adverse to the accused was justified by the evidence and, in particular, that an inference of guilt of a crime charged could not be drawn unless it was the only inference rationally available in the circumstances. Yet again, no further direction was sought.
9. None of these grounds is of sufficient substance to warrant a grant of leave under rule 4.

Orders

1. In Batcheldor's case, I would allow the appeal, quash the conviction of each count, and order a new trial.

Walsh's appeal

1. Walsh appeals against his conviction for murder only. Murder had been left to the jury in his case on the basis that he had strangled the deceased with the requisite intent or, alternatively, constructive murder.
2. The appeal relates to the trial judge's directions to the jury about constructive murder in his case. The only ground is that his Honour should have directed the jury that, to establish murder on that basis, they had to be satisfied that the act of the appellant causing the death of the deceased was done maliciously.
3. To understand this ground it is necessary to set out most of s 18 of the Crimes Act, providing relevantly: "[18] (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. … (2) (a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section. …"
4. "Maliciously" had been defined in s 5 of the Crimes Act until its repeal by the Crimes Amendment Act 2007. The section had provided: "'Maliciously': Every act done of malice, whether against an individual or any corporate body or number of individuals, or done without malice but with indifference to human life or suffering, or with intent to injure some person or persons, or corporate body, in property or otherwise, and in any such case without lawful cause or excuse, or done recklessly or wantonly, shall be taken to have been done maliciously, within the meaning of this Act, and of every indictment and charge where malice is by law an ingredient in the crime."
5. Nevertheless, s 18(2)(a) remains unchanged. Clause 65 of Schedule 11 to the Act provides: "The repeal of section 5 of this Act by the Crimes Amendment Act 2007 does not affect the operation of any provision of this Act (including a repealed provision) that refers to 'malicious' or 'maliciously' or of any indictment or charge in which malice is by law an ingredient of the crime."
6. In Chen v R [2013] NSWCCA 116, Button J noted at [62] the retention of the concept of malice in s 18(2)(a) even though the statutory definition has been deleted. His Honour added that he knew of no decision of this court as to what the paragraph should now be taken to mean. That is still the case, and this is not the occasion to address it.
7. The bearing of the requirement of malice under s 18(2)(a) on constructive murder was considered in Mraz v The Queen (1955) 93 CLR 493. That was a case of constructive murder, the allegation being that the appellant caused the death of a woman in the course of raping her. In a joint judgment, Williams, Webb and Taylor JJ recorded (at 505) that the trial judge had directed the jury that they had to be satisfied that there was a rape and that the victim's death had resulted from an act or acts of the appellant. His Honour then referred to s 18(2)(a) and the definition of maliciously in s 5, saying that the jury might take the view that "the act of sexual intercourse even against consent is not of itself a malicious act", it being open to the jury to "entertain the notion" that rape did not "necessarily connote an intent to injure" and might be directed only to the gratification of sexual desire.
8. This was held, both in the Court of Criminal Appeal and the High Court, to have been a misdirection. How that misdirection bore upon the outcome of the appeal is not a matter which need be considered for present purposes. What is relevant is the following passage from the joint judgment (also at 505): "If upon the evidence the jury was prepared to conclude that the crime of rape had been committed and that the acts of the appellant associated with or done in furtherance of his purpose had caused the death, it was unnecessary that they should embark upon an independent enquiry to ascertain whether those acts were malicious. The very fact that they were so associated or so done established beyond question that they were done 'of malice'."
9. The authority of that pronouncement has not since been called into question: see, for example, the affirmation of it by Toohey and Gaudron JJ in Royall v The Queen (1990-91) 172 CLR 378 at 428.
10. Walsh's case raised an issue of self-defence. In directing the jury on constructive murder, the trial judge explained that they would have to be satisfied that the death of the deceased was the result of a deliberate act of Walsh, not done in self-defence, during or immediately after the commission of the crime of detaining the deceased for advantage in circumstances of special aggravation. Before giving those specific directions, his Honour said: "… the rationale, or the purpose, behind that particular definition of murder is to include, within the crime of murder, any killing of a person, however caused, during the commission of another very serious crime … ."
11. In this court Walsh was represented by Mr Lange of counsel, who also had not appeared at the trial. In written submissions he argued that a direction that the act causing death had to have been done maliciously was required by s 18(2)(a). In oral argument he was questioned by the bench about the additional direction which should have been given. He said that the jury should have been told that the act of Walsh causing death had to be "associated with or done in the furtherance of his purpose" in the commission of the foundational crime. Those words were extracted from the passage in Mraz cited above.
12. Mr Lange pointed out that, putting aside the allegation of strangulation with the chains, the evidence could not identify what the act causing death was. As I have said, the post-mortem examination of the deceased was unable to determine the cause of death. He also noted that, in sentencing Walsh, the trial judge was not satisfied that the killing was by strangulation with the chains and sentenced on the basis that the death was the result of a deliberate act, without being able to reach any conclusion as to the precise nature of it.
13. Mr Lange argued that his Honour's direction, in the passage I have quoted, that constructive murder is established by "any killing of a person, however caused" during the commission of a requisite foundational crime was too broad. It had to be an act connected with the detention of the deceased, either in furtherance of it or associated with it. Indeed, he took us to the passage in the judgment of Toohey and Gaudron JJ in Royall (supra), in which their Honours referred to Mraz as "authority for the proposition that, in the case of the murder-felony rule, the commission of the felony satisfies any requirement of malice." That statement, Mr Lange said, is also too wide as it fails to specify the requirement that the act causing death be connected with the relevant felony.
14. In cases of constructive murder it is usually obvious that the act causing death is associated with or in furtherance of the foundational crime. Whether that connection is an essential element was not a matter that was fully argued, with reference to other authority, before us and I do not propose to express a concluded view about it. In the present case I have no doubt that the jury understood, by his Honour's reference to a deliberate act not done in self-defence, that the issue was an act causing death related to the detention of the deceased. Yet again, no such direction was sought by trial counsel for Walsh (or for Batcheldor or the Crown), no doubt because nothing in the evidence suggested that such a direction was required.
15. As to this ground, I would refuse leave under r 4. The appeal should be dismissed.
16. R A HULME J: I agree with Hidden J in relation to the disposition of these appeals in relation to both Ms Batcheldor and Mr Walsh and with his Honour's reasons.
17. I wish to add some observations about Johns and Sharah. The facts in each case have been summarised in the judgment of Hidden J and need not be repeated. Both concerned a prosecution case put on bases of extended joint criminal enterprise (referred to in the judgments as "common purpose") and constructive murder ("felony murder"). This may explain how a concept relevant to the former came to be imported into the latter, namely that an accessory to constructive murder (either an accessory before the fact or as a principal in the second degree to the foundational offence) must have foreseen the possibility of something occurring that resulted in death.
18. It is important to bear in mind that the foundational offence in Johns was armed assault with intent to rob with wounding (s 98 of the Crimes Act). The case is authority for the proposition that on the facts of that case an accessory before the fact, like a principal in the second degree, must be shown to have contemplated the possibility of the principal offender discharging his weapon in order to be liable for the foundational offence. If so, and regardless of whether the discharge of the weapon was intentional or accidental (but as to the latter, see Penza and Di Maria v Regina [2013] NSWCCA 21 at [167]), it would follow that a participant in either of those capacities would be liable for murder on a felony/constructive murder basis. Without foresight of the possibility of the weapon being discharged, the accessory before the fact and the principal in the second degree would not have foreseen the possibility of a wounding and would be not be guilty of the foundational offence, but merely of assault with intent to rob whilst armed (s 97), an offence that does not qualify as a foundational offence for constructive murder.
19. In Sharah, Carruthers J set out the elements of "felony murder". (Hidden J has quoted them out at [69].) His Honour cited the judgment of Begg J in Johns but added an element over and above those that were approved in Johns. He held that it was necessary for the Crown to prove all of the elements of the foundational offence and that the appellant foresaw a contingency that during or after the commission of that offence (including the wounding) that the gun would be discharged. For convenience I will repeat the third element (Sharah at 297F): "(iii) that the discharge of the gun by Attard during or immediately after the armed robbery with wounding of John, was a contingency which the appellant had in mind, whether or not the gun was fired intentionally and whether or not in furtherance of the common unlawful purpose."
20. The NSW Law Reform Commission has questioned how this additional element of knowledge in the accessory came to be accepted when it was not previously part of the common law: NSW Law Reform Commission, Complicity, Report No 129 (December 2010). The formulation of the elements of the constructive murder case set out by Carruthers J in Sharah was quoted and the report continued (at 148-149): "5.37 The third element in the constructive murder direction, which was approved in this case, appears to have imported an additional requirement for an application of the constructive murder rule to an accomplice. Previously the rule had, in relation to both the principal and accomplice, required only that the act or omission causing death be connected with the acts forming part of the foundational offence. It had not required any foresight or contemplation, on the part of the accomplice, that the principal would use a weapon in the course of committing or attempting to commit the foundational offence. 5.38 Judges in the NSW Court of Criminal Appeal have subsequently applied the directions approved in Sharah without criticism, and the Criminal Trial Courts Bench Book has also adopted them. In R v Spathis [R v Spathis [2001] NSWCCA 476 [315] (Carruthers AJ, Heydon JA and Smart AJ agreeing)] Acting Justice Carruthers observed that 'the critical question always must be whether the act causing death was within the contemplation of the accessory in his role as a principal in the original criminal enterprise'. The historical basis for this direction is unclear. It may be that it was thought appropriate to draw, by analogy, on the approach that had been developed, in relation to joint criminal enterprise liability; or perhaps, that the case was seen as one to which that form of liability applied." (Footnotes omitted)
21. The resolution of Ground 8 does not depend upon what was said in Sharah. Like Johns, this is a case in which proof of the liability of Ms Batcheldor for the foundational offence was all that was required to establish the mental element for constructive murder. The Crown conceded that there was a deficiency in the directions given as to the elements of the foundational offence. For the reasons given by Hidden J, I accept that this concession was well-founded.

Amendments 19 October 2015 - changed "RA Hulme" to "R A Hulme" in coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 October 2015