DPP v Fielding

The accused faces 1 count of arson (CC2023/2392) and 1 count of damage property (CC2023/2421).

The prosecutor opened his case on the basis that the guilt of the accused would be established in relation to both counts on the indictment by reliance on joint commission or in the alternative that he was knowingly concerned.

The question becomes in those circumstances whether the jury should be directed that to find the accused guilty of either count they must be unanimous as to which of the alternative pathways relied upon by the prosecution have been established beyond reasonable doubt.

The conduct relied upon by the prosecution is entirely the same conduct for each pathway by which criminal responsibility is said to be extended.

The counts relate to an incident at the prison when several detainees set fires and damaged property in an accommodation unit of the prison. The conduct engaged in by the accused said to make him liable for the commission of the offences was particularised as: (a) together with another detainee taking plastic bags of rubbish out into a courtyard area which provided material for a fire to be lit; (b) arming himself with a metal pole and used it to strike multiple doors; (c) pouring liquid onto the floor; (d) throwing toilet paper to another detainee to be used as debris for fire; and (e) retrieving a mattress from his cell and throwing it to the same detainee to be used as more material for fire.

The prosecution alleged that a person they nominated to be the accused was captured engaging in that conduct on CCTV footage.

The prosecution put their case to the jury in this way. That the accused engaged in those acts under an agreement made with other detainees to engage in a joint criminal enterprise, or in the alternative if the existence of an agreement cannot be established, that the accused, by virtue of those same acts, involved or connected himself to the extent that he was knowingly concerned in the commission of the substantive offences.

The alternative pathways rely on the establishment of the conditions contained in s 45A of the Criminal Code 2002 (ACT) for joint commission and s 45 of the Criminal Code for knowingly concerned, in order that the accused be taken to have committed the substantive offences of arson and damage property.

The accused did not give or call any evidence. There was no challenge to the evidence which demonstrated that the offence of arson and the offence of damage property were completed by other detainees during the incident.

The accused contended that an extended unanimity direction as to the alternative pathways should be given to the jury. That is the jury should be directed that they must be unanimous in a determination of whether the prosecution have proved joint commission or knowingly concerned beyond reasonable doubt before they can find the accused guilty. As I understood it, the accused submitted that an extended unanimity direction was warranted to avoid confusion, for certainty and to secure the requirement that the jury return a unanimous verdict.

The prosecution submitted that in the circumstances of this case an extended direction was unnecessary. I was taken to AKB v R [2024] NSWCCA 169 which involved an appeal against conviction for a charge of murder on the basis that a direction given to the jury was insufficient where the prosecution relied on alternative pathways or routes to a verdict. The majority of the Court per Gleeson JA (Walton J agreeing) concluded that a direction given to the jury to the extent that it directed on extended unanimity was sufficient. Dhanji J whilst agreeing that the appeal should be dismissed, found that an extended unanimity direction was neither given nor necessary in the circumstances of the case. Gleeson JA identified at [56] the principles concerning unanimity including the necessity for each ingredient of an offence to be established to the satisfaction of each member of the jury and that each juror need not follow the same evidential route to arrive at a unanimous decision as to the verdict.

Of course, there the court was considering an offence quite different to those on this indictment but in my view the analysis as to the circumstances which might warrant an extended unanimity direction is apposite and no submission was advanced to the contrary.

Gleeson JA identified at [58] that “where there are different pathways or routes to determine guilt, a direction may be required that the jury must be unanimous in finding which one of several particular facts occurred to establish criminal liability of the accused for the offence charged” and further observed at [59] that “a distinction has been recognised between alternative legal formulations of liability based on the same or substantially the same facts and alternative factual bases of liability”.

As to the first kind of case “such as where the prosecution relies upon the same facts to allege either murder or manslaughter, there is generally no need for an unanimity direction” (at [59] in AKB, citing R v Cramp [1999] NSWCCA 324; (1999) 110 A Crim R 198 at [65] (Barr J, Sully and Ireland JJ agreeing)).

The analysis drew on R v Walsh (2002) 131 A Crim R 299; [2002] VSCA 98 in which two kinds of cases were similarly distinguished, the first being one where alternative legal bases of guilt are proposed by the Crown that depend on substantially the same facts and the second being where one offence is charged, such as obtaining property by deception but a number of discrete acts relied upon as proof and any one of them would entitle the jury to convict. The court in Walsh as with AKB determined that the first kind of case would generally not demand an extended unanimity direction whilst the second kind of case might.

In the second kind of case, the Court in Walsh observed at [57] that “in this type of case much will depend upon the precise nature of the charge, the nature of the prosecution’s case and the defence and what are the live issues at the conclusion of the evidence”.

In this case the alternative pathway to extend criminal responsibility, namely knowingly concerned, is relied upon should the prosecution fail to prove that there was an agreement made by the participants to jointly commit the offences.

This is the only distinction between the alternative formulations of criminal liability.

There were two issues in the trial. First, the identification of the accused as the person who engaged in the acts particularised by the prosecution and the extent to which those acts provide a basis for an inference to drawn with respect to the existence of the agreement necessary to establish joint commission or an inference with respect to involvement in or connection with the commission of the offences necessary for the accused to have been knowingly concerned.

This is not a matter where the alternative pathways present mutually exclusive conclusions (see R v McCarthy (2015) 124 SASR 190; (2015) 256 A Crim R 338 per Kourakis CJ at [5]). Indeed, as the prosecutor pointed out a determination that the prosecution had established joint commission beyond reasonable doubt in this matter would necessarily comprehend a finding in relation to his being knowingly concerned; satisfaction with respect to joint commission would necessarily rely on the acts alleged against the accused said to make him ‘knowingly concerned’. The only difference between the two alternative pathways to criminal responsibility is proof that the acts were done pursuant to an agreement.

There is a temptation to delve into the effect of s 45 (8) of the Criminal Code. There was an interesting point as to whether that subsection provided a basis for the jury, should they be unable to reach a conclusion on knowingly concerned, to nonetheless find the accused guilty via s 45A of the Criminal Code. On closer analysis I am not persuaded that it is the way the subsection operates. Noting neither the parties nor I have the opportunity for careful consideration I think the work for the subsection to do is likely in circumstances where a jury may be unable to determine whether an accused was an accessorial participant or a principal offender. That is not this case. The prosecution conceded in their opening address that the accused was not a principal offender, and the prosecutor sensibly disavowed any reliance on the subsection in this matter. The question as to the operation of s 45(8) of the Criminal Code and relatedly the absence from s 45A of the Criminal Code of an equivalent provision can await determination in an appropriate case. A consideration of which was touched upon by Baker J in Inglis v Adamson [2024] ACTSC 4 but likewise unnecessary for her Honour resolve.

As the accused accepted, uncertainty as to which pathway underpinned any finding of guilt made by the jury in the circumstances of this case will have no bearing on the capacity for him to be properly sentenced, there being no difference in the conduct relied upon and the extent of his involvement via either route to his guilt.

In addition to the same acts underpinning both routes to guilt, whilst the conditions necessary to establish criminal responsibility under s 45 and s45A are different, in either alternative the purpose and result of the accused’s conduct was materially the same. That is, intentional conduct meant to bring about involvement with the commission of the offences; the only difference being, as I have already recorded, the existence of an agreement prior to or as the conduct was engaged in.

The accused suggested the circumstances of this case raised the problem identified in S v The Queen (1989) 168 CLR 266; [1989] HCA 66. I do not agree. This is not a matter where the failure to give an extended unanimity direction would result in uncertainty as to the conduct the jury were satisfied the accused had engaged for the reasons I have already identified.

In my view, this matter is in the category of cases which do not warrant an extended direction on unanimity. If I am wrong about that and it is in the category of cases which might warrant it, I do not consider, in the circumstances of this case, that it is necessary. Drawing upon the analysis in Walsh endorsed in AKB, the nature of the case against the accused, the manner in which it has been defended and the issues that arise as a result do not warrant an extended unanimity direction.

In this matter, I am satisfied that there is no prejudice to the accused by the absence of such a direction.

Accordingly, the jury will be directed that in order to find the accused guilty they need not be unanimous as to which pathway to criminal responsibility the prosecution have established beyond reasonable doubt but that they must all be satisfied beyond reasonable doubt before the accused could be found guilty that one of the alternative pathways has been established.