"(i) a parent is under a duty to his young children (under
common law and also by the Children and Young Persons Act 1933
as mentioned above);
(ii) one who voluntarily undertakes the care of a helpless and
infirm person owes a duty to that
person (Nicholls (1874) 13 Cox
75);
(iii) members of a household in which a person becomes infirm
and helpless may
be held to have assumed a duty to that person
(Stone and Dobinson (1977) QB 354);
(iv) there may be a duty under a contract of employment where
omission to perform the duty is likely to endanger the lives
of
others whether or not they are parties to the contract (Pittwood
(1902) 19 TLR 37);
(v) where there is a right and the ability to control the
actions of others, there may be a duty to exercise that right
in
order to prevent the commission of a crime. This may result in
liability as a secondary party if the other is guilty
of an
offence, as in Rubie v Faulkner (1940) 1 KB 571, where the
supervisor of a learner driver failed to supervise the driver
and was convicted of aiding and abetting the driver
to drive
without due care and attention;
(vi) where the defendant has himself put a person in danger by
a wrongful
act, he is probably under a duty not to leave that
person in danger;
(vii) where the defendant holds a public office which
requires
him to care for others he has a duty to do so, as for example in
Curtis (1885) 15 Cox 746, where the relieving officer
for a
local authority was held liable for manslaughter by an omission
for neglecting to provide medical assistance to a destitute
person and Dytham (1979) 3 All ER 641, where a uniformed police
officer stood within 30 yards of a club from which a man was
being ejected and made no move to
intervene whilst the man was
noisily kicked to death in the gutter."
23. In the present case it was not suggested that a duty
to act arose simply
by reason of the fact that the appellants and the deceased lived together for
a short time in the same house.
The learned trial judge's direction in the
case of the appellant Lawford seems to be based on the assumption that the
deceased was
rendered unconscious by Lawford and therefore placed in a
dangerous situation in the house without assistance. The example given
in
para (vi) of the Criminal Law Revision Committee Report is close to the
circumstances of the present case, although the suggestion
that these facts
would give rise to a relevant duty has been questioned. (See commentary in 43
MLR 681 at 685) Nevertheless I am of the view that the principles discussed in
Taktak's case support the proposition that if Lawford was
responsible for the
deceased being rendered unconscious and placed in a dangerous situation as a
consequence, a duty to take positive
action to render assistance would arise.
But, of course, this is only one aspect of liability. The other elements of
the crime of
murder must be proved and the directions as to these elements
form the main focus of the arguments on appeal.
24. When discussing
Lawford's case in this respect the learned trial judge
directed the jury as follows:
"So far I have been merely directing my
attention to what
are no more and no less the first thrust, if you like, of what
Mr Millsteed says to you. There are in
fact two other secondary
bases of the Crown case which could lead you to a verdict of
guilty of the offence charged by somewhat
different routes, and
I will deal with those successively. We come back now to
paragraph 17 of your aide-memoire. This
is what I loosely
call, and as is loosely called in the legal text books, murder
by omission. The first route I have talked
about in there.
This is a bit of a mouthful but if you follow the aide-memoire I
think it won't be too bad to understand.
If you come to the
conclusion on the evidence that by her deliberate voluntary and
unlawful act, the accused Lawford rendered
Serbert into a state
of unconsciousness in circumstances whereby, due to the injuries
which he had received from whatever
source, and his condition of
nakedness in the cold environment in which he lay, she must have
appreciated that there was
obvious, serious and immediate risk
that he might die unless she initiated such steps as were in her
power, either perhaps
by means of her own actions, or by seeking
help from others - to lead to his resuscitation, or otherwise
prevent or minimize
any adverse consequences to him resulting
from her actions, he being unconscious of course and unable
himself to seek help
at that point, and she deliberately
refrained from doing so, intending him to die or sustain
grievous bodily harm, and the
risk thereafter eventuated by
Serbert's death as a result of his injuries and their effects in
the environment in which he
was left, then she is guilty of the
crime of murder. That is a great mouthful, but I think it is
clear enough is it not?
A similar end result would also be
reached if she recklessly so refrained, either because she just
did not give any thought
to what was a patently obvious risk of
the nature to which I have referred, or because she might have
recognised the existence
of that risk, she nonetheless decided
to take the risk, and decided to do nothing to assist Serbert."
25. The first criticism
which is made of this direction is that it did not
adequately deal with the aspect of causation, an issue which was the subject
of
conflicting evidence in the case. If any failure to act was to be relied
upon as an element of the offence of murder it was essential
that such failure
was an operating and substantial cause of death. (R v Hallett (1969) SASR 141
at 150). The only reference which might be said to relate to the element of
causation in the passage which I have quoted is the
comment "and the risk
thereafter eventuated by Serbert's death as a result of his injuries and their
effects in the environment in
which he was left". The "risk" relates back to
the earlier reference to the "immediate risk" that Serbert might die unless
the appellant
Lawford took steps to render or obtain assistance. The
reference to "immediate risk" was made in a part of the direction dealing
with
the appellant's state of mind and in my view there was room for confusion in
the jury's mind as to the relevance and importance
of causation in the context
of this part of the summing-up.
26. But a more obvious error is apparent in the learned trial judge's
direction on malice aforethought. It will be seen that after explaining that
the necessary intention would be established if the
appellant Lawford intended
Serbert to die or sustain grievous bodily harm his Honour went on to add the
direction which I have underlined.
The first limb of the direction in the
underlined passage which contemplates that the appellant's mind may not have
adverted to
the risk of death or grievous bodily harm is a serious
misdirection. It was also referred to in the aide-memoire which was given
to
the jurors to assist them in their deliberations. In that document the
alternative state of mind was expressed as: "Recklessly
refrained either
because no thought of patently obvious risk, or recognised risk but decided to
take risk."
27. On a charge of murder
the jury must be instructed that reckless
indifference can only be relied upon as constituting the requisite state of
mind if it
is proved that the accused knew that the act, or in this case the
omission, would probably cause death or grievous bodily harm and
that the risk
was consciously accepted. (Royall v The Queen [1991] HCA 27; (1990) 172 CLR 378 at 394; The
Queen v Crabbe [1985] HCA 22; (1985) 156 CLR 464; R v Matthews (1984) 36 SASR 503 at 508.) By
postulating circumstances in which the appellant Lawford might have acted
recklessly in not giving any thought to the
risk, the summing-up confused the
concepts of recklessness in the sense in which it is sometimes used in
directions on manslaughter
and conscious risk-taking of the type which can
constitute the state of mind required for murder. Furthermore, as the cases
referred
to above make clear, the alternate state of mind relevant to the
offence of murder is concerned with foresight of probable consequences.
It
follows that the summing-up is also defective in that by using the word
"might" in the passage cited above it suggests that possible
consequences are
sufficient.
28. Mr Jennings QC for the Director of Public Prosecutions quite properly
conceded that at least insofar
as the direction on recklessness was concerned,
the summing-up in relation to the appellant Lawford was defective. However he
argued
that no substantial miscarriage of justice had occurred by reason of
the error and that it was appropriate for this court to apply
the proviso to
s.353(1) of the Criminal Law Consolidation Act.
29. Some guidance in the application of the proviso was given in
the judgment
of Brennan, Dawson and Toohey JJ in Wilde v The Queen [1988] HCA 6; (1987) 31 A Crim R 331.
Their Honours said:
"Those authorities establish that where there has been a
departure from the requirements of a properly
conducted trial,
it cannot be said that there has been no substantial miscarriage
of justice if the applicant has thereby
lost 'a chance which was
fairly open to him of being acquitted' to use the phrase of
Fullagar J in Mraz [1955] HCA 59; (1955) 93 CLR 493 at 514 or 'a real chance of
acquittal' to use the phrase of Barwick CJ in Storey [1978] HCA 39; (1978) 140
CLR 364 at 376. Unless it can be said that, had there been no
blemish in the trial, an appropriately instructed jury, acting
reasonably
on the evidence properly before them and applying the
correct onus and standard of proof, would inevitably have
convicted
the accused, the conviction must be set aside: see
Driscoll [1977] HCA 43; (1977) 137 CLR 517 at 524; Storey (at 376); Gallagher
[1986] HCA 26; (1986) 160 CLR 392 at 412-413; [1986] HCA 26; 20 A Crim R 244 at 259. Unless
that can be said, the accused may have lost a fair chance of
acquittal by the failure to afford him the trial
to which he was
entitled, that is to say, a trial in which the relevant law was
correctly explained to the jury and the rules
of procedure and
evidence were strictly followed: see Mraz at 514. The loss of
such a chance of acquittal cannot be anything
but a substantial
miscarriage of justice. The question whether the jury would
inevitably have convicted falls to be determined
by the Court of
Criminal Appeal. It is a question which the Court of Criminal
Appeal must answer according to its assessment
of the facts of
the case."
30. Although the prosecution did not request a direction on "murder by
omission" and its case was
predicated upon the circumstances to which I have
earlier referred, this avenue for a conviction on the charge of murder was
left
to the jury as a clear alternative in both the body of the summing-up and
the aide-memoire. The learned trial judge returned to
the topic shortly
before the jury retired. Whilst not encouraging the jurors to proceed along
these lines he told them that the
concepts of murder by omission or
alternatively, by substantial or contributing cause "cannot be ignored".
31. Whereas the basis
upon which the Crown sought a conviction was explained
to the jury, the availability of this alternate route to conviction was
identified
and its relevance underlined. With respect to his Honour I think
it was an unnecessary complication bearing in mind the bases upon
which the
case was put by the prosecution and defended by the appellants. But it was
left as an option and it is not difficult to
see that a solution along the
lines of the impugned directions might well have had attractions for the jury.
It avoided the necessity
of considering some of the potentially difficult
problems of causation present in the case and it watered down the requisite
state
of mind. It also had the potential to focus attention on circumstances
outside the central area of debate between the prosecution
and defence.
Although I have taken into account Mr Jennings' submissions as to the
respective strengths of the Crown and defence
case I am of the view that this
is one of those cases in which the significance of the irregularity and not
the weakness of the defence
case is the primary consideration. (R v Couper
(1985) 18 A Crim R 1 at 5.) As Lawford's conviction may have been based on the
erroneous directions it cannot be said with confidence that she has not
lost a
chance which was fairly open to her of being acquitted and I would allow her
appeal on this ground, quash the conviction and
order a re-trial.
32. It is convenient at this point to deal with the argument advanced on
behalf of the appellant Van de Wiel that
the misdirection which I have been
discussing in relation to Lawford was carried over into the case against him.
The passage on murder
by omission which I have set out above is to be found in
a part of the summing-up dealing only with Lawford.
33. However, Mr Tilmouth
QC for Van de Wiel argued that when the trial judge
came to deal with the case against his client he gave the impression that the
same principles were applicable as an alternate route for convicting his
client.
34. In order to understand this argument it is
necessary to consider in more
detail the structure of this part of the summing-up. His Honour dealt first
with the case against
Lawford. He divided this discussion into what he called
the "Primary Crown Case" and the "Secondary Crown Case" against her. The
Primary Crown Case was based on the prosecution's assertion that Lawford had
strangled Serbert and that Van de Wiel had restrained
him at the same time.
It was against this background that his Honour defined the crime of murder in
terms of a deliberate and unlawful
killing accompanied by an intention to kill
or cause grievous bodily harm or, alternatively, forseeability of such harm
coupled with
a determination to proceed nevertheless. His Honour then dealt
with the alternative verdict of manslaughter which, he said, could
arise
either because of an unlawful and deliberate killing without the intention
necessary for murder or by way of provocation.
His Honour went on to leave
attempted murder and attempted manslaughter to the jury. I should add that in
my view Mr Jennings was
correct in agreeing with the suggestion put to him in
argument that these directions on attempt were unnecessary from a practical
viewpoint.
35. The learned trial judge then dealt with the "Secondary Crown Case"
against Lawford. This comprised the murder by
omission directions together
with the further alternative which his Honour labelled "murder by reason of
substantial or significant
cause". Then his Honour left as an alternative to
both murder by omission and murder by reason of substantial or significant
cause
verdicts of manslaughter based on either provocation or unlawful
killing.
36. At this stage the trial judge turned his attention
to the case against
Van de Wiel. Under the heading "Primary Crown Case" he explained the elements
of murder in the context of the
Crown allegation that Van de Wiel was a party
to the acts of violence including the beating with the iron bar and the
strangulation
allegedly inflicted by Lawford. He then dealt with the
alternative verdict of manslaughter available because of an unlawful killing
or through provocation.
37. His Honour then turned his attention to what was referred to in the
course of addresses as the "Griffin
Thesis" because it had been advanced by Mr
Griffin who was then acting for Lawford. It was based on the assertion that
the deceased
died as a result of blows inflicted on him by Van de Wiel. It
was at this stage of the summing-up that his Honour gave the directions
which
are relied upon by Mr Tilmouth as adopting, in the case of Van de Wiel, the
impugned directions on murder by omission which
were given in Lawford's case.
38. His Honour said:
"However, that having been said, this is a possible
scenario, the Griffin
thesis, to which you will have to give due
and careful consideration in the course of your deliberations.
The relevant principles
of law which I have explained to you
apropos the preferred Crown case apply equally to Mr Griffin's
thesis apropos Van de
Wiel. If you consider that it was Van de
Wiel who struck various blows to Serbert's head and thereby
caused, or substantially, or significantly contributed to his
death, then you would be entitled to find him guilty of murder,
if you are satisfied that this resulted from deliberate,
unlawful and voluntary acts on his part and that he either
specifically intended to kill Serbert or cause grievous bodily
harm to him or, alternatively, intentionally by his voluntary
unlawful acts struck Serbert, thereby ultimately causing his
death, foreseeing that death or grievous bodily harm would
probably result from his action, that is to say being reckless
as to that probable outcome. He, therefore, potentially could
be the subject of the same line of reasoning as that secondary
path that we talked about in relation to the accused Lawford."
39. Before dealing with Mr Tilmouth's argument it is helpful
to make some
general observations about the summing-up. The case gave rise to a number of
complex issues and it is clear that the
learned trial judge gave considerable
thought as to how they would be presented to the jury. The summing-up
occupied over 260 pages
of transcript. It was commenced on a Saturday and
resumed on the Monday morning. In order to assist the jurors to place the
alternative
bases of liability into appropriate categories his Honour used
descriptive labels of the type to which I have already referred.
These labels
were also used as headings in the aide-memoire provided to the jury. I
mention this because the labels and headings
acquired more significance than
might normally be the case and they were essential to the jurors' admittedly
difficult task of identifying
in their minds the various categories of
liability and the alternatives referred to in the summing-up.
40. It is against this background
that Mr Tilmouth argued that the reference
in the last passage which I have quoted to the "Secondary path that we talked
about in
relation to the accused Lawford" would have been interpreted by the
jury as an allusion to the "Secondary Crown Case" spoken of in
connection with
Lawford, namely, the alternative of murder by omission. If that were so then,
according to the argument, the misdirection
would apply equally to the case of
Van de Wiel.
41. There is undoubtedly some ambiguity in the underlined passage. As I have
said,
Mr Tilmouth contended that it referred back to murder by omission. Mr
Jennings argued that it referred to the category of "murder
by reason of
substantial or significant cause". A further alternative might be that it was
simply intended to describe foresight
of consequence and deliberate risk
taking as opposed to a specific intention to cause grievous bodily harm.
42. In my view his Honour
did not intend that the murder by omission
directions should apply in the case of Van de Wiel, but there is room for
concern that
the jury might well have attached particular significance to the
description "Secondary path that we talked about in relation to
the accused
Lawford" and associated it with the misdirection given under the heading of
the "Secondary Crown Case" against Lawford.
In the summing-up his Honour also
refers to the "two other secondary bases of the Crown case" against Lawford
before going on to
discuss murder by omission and murder by reason of
substantial or significant cause, but as murder by omission is one of these
bases
there is the danger that the jury considered that the earlier directions
on this topic applied also to the case against Van de Wiel.
There is the
further consideration that the term "reckless" is used in the underlined
passage and "recklessly" is used in the directions
on murder by omission
whereas neither word is used in the directions on murder by substantial or
significant cause, although the
concept of foresight of consequence is
referred to in the latter directions. Foresight of consequence was referred
to by his Honour
in the directions relating to Van de Wiel. However the
subsequent reference to "being reckless" coupled with the earlier direction in
Lawford's case that recklessness
could be established if an accused did not
give any thought to consequences and that this was an alternative state of
mind to that
involving foresight of consequence, gives rise to a serious
concern that the jury might have applied the earlier misdirection to
Van de
Wiel's case. The misdirection was not corrected by the time recklessness was
discussed in Van de Wiel's case or at all.
43.
Although the position is not as clear as it is in the case of Lawford, I
have reached the conclusion that the jury may well have
been misled in the
manner in which I have suggested. It cannot be said in my view that the jury
would have reached the same conclusion
if the summing-up in relation to Van de
Wiel had not been vitiated in this way and it follows that his conviction
should also be
set aside.
44. Although it is unnecessary for the disposal of the appeal, it is
nevertheless appropriate to deal with the only other
ground of appeal advanced
by the appellants. Both appellants complain of the fact that the trial judge
gave the jury the usual warning
concerning the danger of convicting on the
uncorroborated evidence of an accomplice. His Honour commenced his direction
on corroboration
by saying:
"In this case, the question immediately arises with respect
to the evidence of the accused Lawford in so far as
that
evidence seeks to implicate the accused Van de Wiel in the crime
charged. In technical terms, this evidence is to be
regarded as
that given by what is classified in law as an accomplice of Van
de Wiel. Conversely, a similar consideration
arises on the
Crown case in relation to evidence given by the accused Van de
Wiel which implicates the accused Lawford in
Serbert's death.
He is to be regarded, for present purposes, as an accomplice of
Lawford.
In legal parlance, the word
'accomplice' means one who is a
party to the actual crime committed, so it is said, and who is
chargeable with the same crime
as that with which the accused is
charged, and that is, of course, the Crown allegation in this
case. That being so, I am
required to point out to you that it
has been the experience of the courts over many years that the
evidence of accomplices
is frequently unreliable. Accomplices
sometimes seek to justify their own conduct. In doing so, it is
far from unknown
for them to seek to shift the blame, wholly or
partly, onto others, or to at least implicate them in some
fashion. In the
process, in practice, they have been known to
construct untruthful stories which tend to exculpate the guilty
and attempt
to implicate persons who could be innocent. For
that reason, it is incumbent upon me, and it is in fact a rule
of law, to
direct you that it is dangerous to convict an accused
person on the evidence of an accomplice unless that evidence is
corroborated."
45. He then went on to explain the nature of corroboration and to relate
these directions to the facts of the case. He explained
that the warning
applied to the evidence of each appellant insofar as it might be used against
the other.
46. The difficulties encountered
in giving warnings in cases involving the
evidence of an accomplice co-accused were discussed by this court in R v Webb
and Hay
(1992) 168 LSJS 256, a case decided well after the trial in the
present matter. After a review of conflicting authorities both in this court
and elsewhere
the Court of Criminal Appeal reached the view that the rule,
whether it be of law or practice, laid down in Davies v Director of
Public
Prosecutions (1954) AC 378 requiring a warning to be given in the case of
accomplice evidence should not be extended to witnesses who are not called by
the
prosecution. However the learned Chief Justice added:
"That does not necessarily mean that no caution should be
given in
relation to the evidence of an accused person which
inculpates a co-accused. The general principle enunciated by
Gibbs CJ
in Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315 at p.319 may
well apply: 'What is required, in a case where the evidence of
a witness may be potentially unreliable, but
which does not fall
within one of the established categories in relation to which
the full warning as to the necessity of
corroboration must be
given, is that the jury must be made aware, in words which meet
the justice of the particular case,
of the dangers of convicting
on such evidence. Where a warning is required as to the way in
which the jury should treat
the unsupported evidence of a
witness whose evidence is potentially unreliable, the question
is "Was that warning sufficient?
Did it in clear terms bring
home to the jury the danger of basing a conviction on the
unconfirmed evidence of the complainants?"
(1986) AC at p.141.
There is nothing formal or technical about this rule.' I
consider that in the generality of cases in
which an accused
person gives evidence inculpating a co-accused, it would be
necessary, or at least desirable, to advise
the jury to exercise
caution in relying upon that evidence alone to convict a
co-accused because of interests of his own
which the
implicating accused has to serve."
47. In the view of the Chief Justice and the other members of the court who
concurred
with his judgment a caution of this nature need not offend the
principles referred to in Robinson v The Queen [1991] HCA 38; (1991) 102 ALR 493, a decision
in which the High Court held that it was inappropriate for the jury to be told
that an accused person's interest in the
outcome of a case should lead them to
scrutinise his or her evidence closely. However the Chief Justice cited with
approval the
following passage from R v Henning (unreported judgment of the
Court of Criminal Appeal (NSW) delivered on 11th May, 1990):
"It
is essential in the interest of the accused who gives,
the evidence that the warning should be restricted in terms to
those
parts of the evidence which inculpate any co-accused. It
must be made clear to the jury that the warning is to be applied