Lambert and Stokes v Tasmania [2007] TASSC 76

Lambert and Stokes v Tasmania [2007] TASSC 76 | Case summary | Zoe

[11]

3 Had the learned trial judge completely failed to put to the jury during the course of his summing up the arguments raised by the accused, there would have been a fundamental error, sufficient to vitiate the whole trial process and consequentially there would be no room for the operation of the proviso enacted in s402(2). See Wilde v R [1988] HCA 6; (1988) 164 CLR 365 at 373. But there is no rule to the effect that the proviso cannot be applied in the event that the trial judge does not put every aspect of the defence case to the jury. This is made clear by the joint judgment in Wilde at 373, and by the court in the more recent decision of Weiss v R [2005] HCA 81; (2005) 224 CLR 300 at 317. It is a question of degree in each case whether a miscarriage of justice amounts to such a fundamental, or significant, denial of procedural fairness, that a new trial should be ordered even though the evidence of guilt, properly admitted, was overwhelming. This is not such a case because the learned trial judge did not wholly fail to remind the jury of the case of each accused. His Honour properly put the defence case with respect to the Crown contention that murder was committed in furtherance of a plan for the appellant Stokes to receive an inheritance, and he reminded the jury that the appellants' contention that murder was not a probable consequence of the prosecution of an unlawful plan to steal money. However, he failed to marshal in a cohesive way the appellants' reasons for the latter contention.

4 Accordingly, the issue arises whether that failure, being a miscarriage of justice, caused a substantial miscarriage to actually occur because if it did not, then the identified error will not result in an order for a retrial. In Weiss, the High Court re-examined the task of an appeal court when considering the common form of the proviso, enacted in the Code, s402(2). Past references to what the jury, or what a reasonable jury, would or might do, are to be avoided. The statutory provision casts an obligation on the appeal court to decide whether a substantial miscarriage of justice actually occurred. This obligation is "to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial", per Weiss at 315. This Court is required to survey the whole of the record of the trial, just as it is required to do when considering an unsafe or unsatisfactory ground. Having undertaken that task, the question is whether this Court, after making allowances for the limitations of proceeding only on the record of the trial, and bearing in mind the onus and standard of proof, is satisfied that "[each] accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict", per Weiss at 316.

5 For the reasons expressed by Blow J in pars55 - 57, the evidence of the guilt of each accused properly admitted at trial does prove beyond reasonable doubt that both appellants were guilty of both murder charges. In expressing that opinion, I take into account, of course, the fact that the record of the trial discloses the deficiency in the summing up that led to the conclusion that there was a miscarriage of justice.

6 Accordingly I agree with Blow J that the appellants should be granted leave (insofar as it is necessary) to appeal against convictions, but would dismiss the appeals. With respect to sentence, I agree with the reasoning and conclusion of Blow J and would join in an order of dismissal.

File No CCA 70/2005

[12]

7 Each appellant was convicted of the murder of two men, father and son, aged 84 and 62, at Penguin on 17 September 2004. The father, Lehman McHugh, was struck some 15 times with a tomahawk and his son Anthony, over 70 times. Each man suffered horrific and fatal head injuries, as well as receiving significant "defensive wounds".

8 Stokes, the first appellant, aged 35, had known both deceased for many years. Lambert, aged 29, was the former partner of Kylie Stokes, the sister of the first appellant and a significant prosecution witness at trial. Stokes stood to benefit from the death of Anthony McHugh, having been named as one of two beneficiaries to his estate. A further motive for the murders, as alleged by the prosecution, was Stokes' belief of the presence of a significant amount of money kept at the McHugh home. Evidence was led at trial that Stokes had previously attempted to persuade another person, Williams, to assist him in the theft of that money. It was the prosecution case that Lambert had agreed on the day of the killings to take part in the stealing of that money.

9 Stokes believed (correctly) that Anthony would be staying at his father's home on the evening of 17 September. The bodies were found on 18 September. Investigating police obtained a statutory declaration from Stokes on 21 September in which he suggested the names of two other persons as possible suspects. Lambert likewise provided a statutory declaration in which he falsely provided details of his movements at the relevant times which exonerated both Stokes and himself.

10 Stokes was further interviewed under caution as a suspect on 23 September about the inheritance, financial affairs and his relationship with each deceased. In that interview he told police that he had been given, some time previous, a key to the premises and knew of the existence of another hidden at the front of the building. He was asked about a man named Williams, a one time boarder at his home and who, at trial, gave evidence that Stokes had earlier asked him to assist in the burglary of the McHugh house. Stokes denied having gone to the McHugh house on Friday night or Saturday morning, having broken into those premises or having struck or killed either of the deceased.

11 There were significant differences between that material provided in the September statements and interviews and the version provided in a longer recorded interview conducted on 29 December 2004.

12 There was no dispute at trial that Stokes and Lambert had gone to the McHugh house, nor that at least one of the accused had killed the two men. There was no issue that the conduct or acts which had caused death constituted murder. No questions of accident, unintended consequence of a single blow, mistaken identity or self-defence were raised by the evidence. The number and form of the blows struck were themselves compelling evidence of intentional murder.

13 The prosecution case was that there had been a pre-planned killing and that Lambert had struck both deceased with the tomahawk at the instigation of Stokes, who was present at the scene, even if not physically present in the room for all of the time during the course of the murders. The primary case was that each accused was a principal, by virtue of the Criminal Code, s3, to murder as provided for by s157(1)(a). The prosecution advanced as an alternative basis for conviction that the appellants had entered into an unlawful purpose of the robbing of, stealing from, and/or harming the McHughs whilst each was armed, and that the murders were a probable consequence of the carrying out of an unlawful purpose or combination thereof. The alternate case permitted recourse to the Code, ss4 and 157(1)(b), (d) and (2).

14 The case for the prosecution was overwhelming. Both deceased were known to Stokes, who had a close relationship with the younger. Stokes had a strong motive for the killing of Anthony McHugh (De Gruchy v R [2002] HCA 33: (2002) 132 A Crim R 453). Stokes believed there to have been a large amount of money secreted in the house, a matter established by the later finding of $39,000 on the premises. Both appellants had gone to the scene armed with a tomahawk and knife respectively. Neither man had evidenced any fear of recognition or identification since any visit could be regarded as innocuous and on the prosecution case there would be no surviving eye witnesses. Both deceased had been killed in their bedrooms, suggesting a quick attack by a person familiar with the layout of the house and its surrounds. The admitted presence of both appellants at the scene of the murders, the form of the killings, and the correlation of the nature of the injuries with the weapons taken by the assailants, taken together with the above non-contested matters were, without more, sufficient to safely ground verdicts of murder.

15 Additional compelling evidence was led which strengthened the prosecution case, but which is said to have been weakened by cross-examination and inconsistency, which the appellants claim would warrant the upholding of these appeals since the directions associated with those matters were insufficient.

16 The grounds of each appellant are identical, claiming that:

[44]

BL Kitchen, a silver handled knife out of the kitchen block and Darryn grabbed the block, the tomahawk out of the back, of the back yard, just inside the back gate. And we went over there, went to the back door like Darryn had said in his interview. Went to the front door. Darryn ended up going inside to the, to the, into the place and come back out half hour, oh not that, ten minutes I suppose, he come back out and said come in and help me find where the money is. And before that he said the money was supposed to be underneath one of the bedroom, underneath one of the bloke's beds. So I went in there, had a look in the bedroom, the first bedroom to your right. And there was a fellow laying in the corner with his head facing down. And that's when Darryn went over and hit him again with the, with the tomahawk. And that's when I took off out of the place and ran back to, on the way back to running back to the door I'd put the knife that I'd had underneath the bush on the way out, underneath a bark tree bush. To where the car was. And then I hopped in the car and sat there and waited for a good ten twenty minutes for Darryn to turn back up. So obviously he must have been still looking for the money or whatnot. And then when he did turn up he'd um threatened me with the block bust, with the, with the axe, the tommy axe, saying that if I had have said anything to the police that I would have been murdered meself. And then we left there, went to my cousin Robbie's house in Queen Street and when we got to there, I said to Darryn we may as well swap clothes 'cause then the clothes that you're wearing, if I go in and say to my cousin Robbie that I've just been bashed, you know been in a fight down the street of, um, Ulverstone that he'd you know let me burn the clothes there. So I went, went in there and said to Robbie that you know I just got into a fight down in Ulverstone and can I burn me clothes here because if I get pulled in by the police I'll go to jail, which you know I burnt the clothes, I had a shower because where Darryn had put the tommy axe to me, full on me face there, that's where he'd um left blood over me. I had blood over me arms where I've put his clothes on, and then went to the, had a shower, then we hopped in the car, went back to Darryn's house, told Kylie what went on, and that's about it."

[75]

"Now, was there, well I'll come to the 17th, let's go back to the earlier discussions. During those earlier discussions about the stealing of money when nobody did take you up on it, was there ever any discussion about anyone being harmed in (inaudible)?..........No.

Okay, on the 17th of September was there ever any mention of someone being killed?.......The only mention of any of that came out of Kylie's mouth. Kylie said -

After you've decided that you're going?.....Yeah, yeah.

Because he doesn't know Penguin?......Yeah.

What happens, tell the jury?.........Well we select clothes I suppose and Kylie someone wearing a red jumper and she says, 'If you get recognised Darryn, you're going to have to kill 'em.'

Okay, and did Bradley say anything?........Bradley, 'If it has to be done, it will happen.'

And did you say anything?........I said, 'Don't be stupid, I'm not even going inside, so I won't be recognised.'

Okay, and did you have any belief as to whether either Tony McHugh or Lehman McHugh had ever once in their lives set eyes on Bradley Lambert?.........Not to my knowledge, no.

So wouldn't know him?.........No, wouldn't know him.

Okay, obviously know you?......Oh yeah.

And your plan is, don't go in?.....Oh yeah I wasn't going in.

Okay, now we know weapons were taken, why?.........To scare 'em, well Brad had a tomahawk to scare 'em if they woke up, and I don't know why I took a knife, but I just, I suppose because he had one, I took a weapon because he had one.

...

Okay. When you left that house to go, did you have any suspicion that anyone was going to be physically harmed?..........No, none whatsoever.

...

Where'd you go first?...........Down to, well Brad went down around to the back door. And he was making a bit of noise so I went round to the back door. I'd waited out the front, but then I went around to the back door and said 'If the back door's locked, you'd better try the front'

Okay. And after telling him to try the front, did you-? Where did you go?.........Well he went to the front door and I headed back toward the car.

...

Okay, where did you actually meet each other again?.....In the door.

Right, and did either of you say anything to the other?.......I said, 'What have you done?' because he had a, what looked like a lot of blood on him.

Okay, did he ask anything of you?.......He said, 'Where's the money?'

Okay, just tell the jury how it happened from there?........Well he said, 'Where's the money and -'

Did you ask him what had happened?........Yeah I said, 'What have you done? What have you done?' and he just started walking back inside and he was kicking a suitcase along in front of him. I said, 'What's happened?' and he said, 'Oh the young wouldn't, wouldn't die.' And I said, 'What you fuckin' killed 'em?' and I said, 'I'm out here, I'm getting out here, I don't want any money, I don't want nothing, I'm going.'

So you're out?.......Yeah, gone.

Right, did you go into any of the bedrooms?........No."

[101]

45 Each appellant adopts the critique advanced by the other. Each chooses to select a portion of the evidence proffered by the prosecution and contends that either the learned trial judge failed to enhance any discrediting of that evidence, or advance a reason why such evidence should be rejected. Four lines of attack were advanced.

46 The first was that Kylie Stokes, the sister of one appellant and the former partner of the other, was not a credible witness since she had encouraged the appellants to undertake the enterprise, stood to gain by assisting the prosecution, and was afraid of Lambert. The learned trial judge had given the jury an "accomplice" direction and no specific claim of error is made on the appeal.

47 The second line is that the evidence of Corey Stokes was no more than "echo" of his mother, for whom he would lie, and that any inconsistencies were but a product of fabrication. Consistency likewise can be claimed as proof of fabrication.

48 The third basis of critique involves the untenable proposition that because the event involved horrific killings, failed as a commercial venture and involved the use of the vehicle of one of the actors, it was unplanned. Many criminal enterprises are less than successful, result in unexpected consequences, and lack the hallmarks of competent planning. But they cannot be said to be "unplanned". On the version provided by both appellants, a plan to go to premises was discussed on the day of the killings, and each knew the other to be armed.

49 The fourth proposition is that death was not a probable consequence of the plan of burglary and stealing. But it was open for Stokes to attempt a theft at a time when he knew the premises to be vacant. He knew the occupants. He knew the son to be present on that evening. The jury was entitled to infer that a search by two armed men for hidden or secreted money was likely to awaken the occupants. The jury was entitled to conclude that detection would result in violence.

50 The written submissions of each appellant set out a series of criticisms of the evidence of Kylie and Corey Stokes, and those criticisms were elevated to failures by the learned trial judge to properly put the respective defences. The written submissions repeat the arguments put in the closing speeches of each counsel and complain of the failure by the learned trial judge to repeat those closing speeches, or at least incorporate them into his summing up.

51 The Code, s371(j), provides:

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52 The learned trial judge was required to summarise the respective cases for the prosecution and defence, RPS v R [2000] HCA 3; (2000) 199 CLR 620. The evidence of Kylie and Corey Stokes was relevant and cogent, but it cannot be said that the prosecution case was dependent upon acceptance of that evidence. The evidence of Robbie Breadmore, also the subject of criticism, may have had greater import on the identification of the actual killer as Lambert because of the presence of blood on his clothing and the burning of those clothes.

53 But significantly the accounts of Kylie and Corey Stokes and Breadmore were independently corroborated. The knife was found in the bush and the axe recovered from the Leven River. The presence of blood and the burning of the clothes was consistent with the information originally provided by the witnesses. The account of Lambert about swapping the clothing with Stokes before burning would itself give credence to any contrary version. Both appellants had lied to police and given Kylie Stokes as an alibi, a matter demonstrably false. The admissions of each appellant in turn corroborated the accounts of Kylie Stokes and her son given soon after the killings and lessened any possibility of concoction. A considerable amount of money was later found secreted in the house.

54 The learned trial judge provided the jury with a detailed memorandum of the law and properly directed the jury as to the law. He had invited counsel to seek any redirections or identify matters overlooked (Crampton v R (200) 176 ALR 369) and no objection was raised as to any failure to properly state the defence position (Le Fontaine v R (1976) 136 CLR 62). He was not required to deal with in minute detail every comment made or contention advanced by counsel (Brown v R [1972] Tas SR 57; R v Ali (1981) 6 A Crim R 161).

55 It is not necessary to repeat the summing up in detail. It dealt fully with the cases as advanced on behalf of each appellant. It is wrong to state that the "summing up of the defence cases was exceptionally brief".

56 The transcript of the summing up runs to some 86 pages. The summing up was given on 3 October, immediately following the closing address of Ms Jago, counsel for Lambert, and on the same day as that of Mr Richardson, counsel for Stokes. Mr Coates SC had concluded his address on 29 September, some four days previous. His Honour had interrupted his summing up on more than one occasion to entertain submissions from counsel as to additional or varied directions. The learned trial judge continued with his summing up on 4 October.

[105]

"Each Counsel have addressed you. They're all experienced capable practitioners and you've heard what they've said. What they say of course is not evidence. You will of course have, as I say, listened carefully to what they've said and you'll give their comments such weight as you think appropriate. Now as Miss Jago said, the accused Lambert did not give evidence. He is under no obligation at law to do so. He's entitled to remain silent and require the Prosecution to prove its case beyond a reasonable doubt. It's the right of every accused person not to give evidence. And the failure to do so cannot fill gaps in the Prosecution case. While you've been deprived of the opportunity of hearing his version tested in cross-examination, you must not assume that he's guilty because he's not given evidence. And the mere fact that he does not do so proves nothing. One thing or the other. One way or the other. It does nothing to establish his guilt on the one hand. On the one hand rather it does nothing to explain rebut or contradict the evidence presented by the Prosecution. Now I've already said that he doesn't need to give evidence or call people to support his case. Mr Stokes did give evidence and that he's done so you must not assume that he has taken it upon himself a responsibility to prove his innocence. Prosecution has that burden of proving each of the elements beyond a reasonable doubt. But whereas here there is Defence evidence, usually one of three possible conclusions is suggested. The first one, you may think that the Defence evidence, and in this case from Mr Stokes, is credible and reliable and that it provides a satisfying answer to the Prosecution's case. And if so, your verdict in each case would be not guilty. Or you may think that although the Defence evidence was not convincing, it leaves you in a state of reasonable doubt as to what the true position was. If so, your verdict would be not guilty. Or you may think that the Defence evidence should not be accepted. However, if that is your view, be careful not to jump from that view to an automatic conclusion of guilt. If you find the Defence evidence unconvincing, set it to one side and go back to the rest of the evidence and ask yourself whether, on a consideration of such evidence as you do accept, you are satisfied beyond a reasonable doubt that the Prosecution has reached each of the elements of the offences in question. Remember I said that we have two trials going on together here. You'll recall I told you how to approach the fact that Mr Lambert did not give evidence and Mr Stokes did. While what Mr Stokes said while giving his evidence may be used not only for or against him, but also for or against Mr Lambert, that is, the evidence he gave in the courtroom. However on the trial of Lambert, to the extent to which the evidence of Stokes implicates Lambert in the offences, you must look at that evidence with great care. There is a danger that in implicating Mr Lambert, Mr Stokes may have been concerned to shift the blame. Now this warning that I give you is restricted only to the evidence, - those parts of his evidence which you might think incriminate Mr Lambert in the offences. It doesn't apply to the evidence as it relates to his own case, on this trial if you can follow that. So where he gives evidence in the witness box against Mr Lambert, you look at that carefully, for obvious reasons that he may well be trying to shift the blame, but not where he gives evidence which does not necessarily implicate Mr Lambert. Now these two accused have been tried together, as I said, you're hearing two cases at once, you must approach the case against each accused as a completely separate trial, and you use only the evidence which I tell you is admissible against him on his own trial. What one accused says outside the courtroom, is no evidence at all against the other, that is for the common sense reason that people often try to get out of a charge, by laying the blame on someone else behind their back. What one accused tells you, as I said, on his oath in this courtroom is evidence against the other, because it's not said behind his back and it can be challenged, as it was challenged. Now there's some evidence against one and not the other, and some evidence against both in this particular trial obviously, and you've already heard reference to some of those parts of the evidence. What Mr Stokes said, in his record of interview or records of interview with the police is not evidence against Mr Lambert and vice versa. There is an exception to that, where it could be said that perhaps they have told a, and the words 'common lie' has been used, for instance the evidence of initially said to police each of them about not leaving home on the night of the 17th of September. There was other evidence that each of them told police that this Mr Sharman might have been a person who was possibly involved. You can use that evidence to, - as evidence that they had some authority in each other to pursue a common purpose, they had in fact, some joint purpose in telling those particular pieces of information to police. Now those pieces of evidence as I see it, are the only pieces of evidence out of the courtroom that would be admissible, one against the other. Now it's important to consider the guilt of each separate, as I said, if you find one guilty, it doesn't mean that you have to find the other guilty as well and conversely.

...

The first one that I want to talk about is the evidence of Kylie and Corey Stokes. This is a matter, as I said, which has been referred to. It is suggested that these two persons may be involved in some way in these offences, Corey by being present at some conversations, and I don't think anyone has mentioned it, but there is evidence of him - Mr Richardson might have - of taking Mr Lambert's watch at some stage. And of course there is some evidence of suggestions being made by Kylie Stokes shortly prior to the two accused men leaving the house on the evening of the 17th of September. Now of course, I am conscious that she denied those allegations, but anyway. You should approach your assessment of Kylie and Corey Stokes with caution. A person who has been involved in some way with an offence, may have reasons of self interest to lie or falsely implicate others in the commission of the offences. The evidence of such persons, is of its nature, potentially unreliable, and therefore necessary for you to scrutinise - it is therefore necessary for you to scrutinise the evidence carefully before acting on it. Kylie at least, having been involved in the discussions prior to the offences is likely, you might think, to be a person of bad character. For this reason, her evidence, and Corey's too, may be unreliable and untrustworthy. Moreover at least, Kylie may have sought to justify her conduct, or at least to minimise her involvement by shifting the blame wholly or partly to others. Perhaps each has sought to implicate the accused men, and to give untruthful evidence, because some gain might be achieved by doing that. Whilst it is possible to identify some reasons which they may have for giving false evidence, there may be other reasons for giving false evidence, which are known only to them. Their evidence, if not truthful, has an inherent danger. If it is false, in implicating the accused, it is nevertheless - it nevertheless may have a seeming plausibility about it, because they are familiar at least, with some details of the crimes. The defence points to this evidence in support of the proposition that Kylie and Corey are not telling the truth of course. On the other hand, the State says that they are truthful and reliable witnesses, and relies on their evidence of what they said - was said, prior to Lambert and Stokes leaving for Arnold Street, and that what Mr Lambert said on his return. They also give evidence of course, about the weapons, and what Kylie said of what Lambert was wearing on his return, and what he said on his return. In view of what I - in view of what I have said to you, it would be dangerous to convict the accused on the evidence of Kylie and Corey Stokes, unless you find that their evidence is supported in a material way, by independent evidence implicating the accused in these offences. Now, as Mr Coates said to you, he says there is such evidence. Such independent evidence, corroborative evidence from an independent source, which is capable of supporting their evidence in a material way. It's a matter for you, of course, whether you accept that evidence, but if you do, it's a matter for you whether you think it supports Kylie and Corey Stokes' evidence in this way. That independent evidence is this; and in relation to Mr Stokes, includes the evidence of, - if you accept it, Mr Stokes' lies to police, and you've had those enumerated, pointed to, the admissions he made about what was said at Allambie Crescent, prior to leaving. The evidence of the tomahawk and the knife. The talk of killing the McHughs if identified, and Mr Stokes admits that that was said. Conversations concerning the knife with the loose handle. Mr Breadmore's evidence confirms a change, if you accept it, concerns a change in Lambert's clothing that was noticed, which is evidence again, of independent evidence outside what Kylie and Corey Stokes say. The actual scene, that they did go to 4 Arnold St. Kylie said it was a planned killing, you could find that there was no search for money on the evidence, and you could conclude from the scene that that's precisely what it was, you could. She said that she was told the knife was thrown under a bush, and in fact it was found under a bush. Against Mr Lambert, you could find evidence independent of the evidence of Kylie and Corey Stokes, that he lied to police about where he'd been that night. That ultimately that he admitted to police that he was there, and ultimately he admitted that he had taken a weapon as in fact, Kylie and Corey Stokes said he had. The evidence of Mr Breadmore is independent evidence outside Kylie and Corey Stokes' evidence, which if you accept it, could be taken to confirm the proposition that Mr Lambert, for some reason or other, changed his clothing. There is the video evidence of Mr Stokes trying Mr Lambert's clothes on, which is independent evidence to support a, - well a change in clothes, and the State would say, an inability of Mr Stokes to do that. In fact it was a lie. I've been asked to give you a direction about motive. This direction is in relation to each of the accused. If you're satisfied on the evidence admissible against either accused, that they have a motive to commit the crimes charged, that is a piece of evidence, along with the other evidence that you may use to show that the accused committed the crimes, it's just a piece of evidence. Although by itself, without other evidence, it does not show that the accused committed these crimes. However, you should take care before giving any great weight to motive because many people who have powerful motives to commit crime, never do so. As I've said, you'll consider it along with all the other evidence to show if the accused committed the crime. Remember use the evidence of motive with great care and consider the evidence admissible only against each accused separately on his own trial. The next specific direction I need to give you is, concerns evidence of violence. Evidence of allegations of violence against Mr Lambert. It's very important direction this one. It relates, obviously, to the trial of Mr Lambert. You've evidence that he may have committed a number of assaults on Kylie Stokes and threatened other persons. Whether you accept that evidence is a matter for you, but I direct you that as a matter of law, that the sole permissible use of that evidence is that it goes to the issue of whether or not Kylie Stokes had a motive to lie about his involvement. That's the use of it. I'm not suggesting that she has that motive, that's a matter for you but my direction to you is that it would be quite wrong to use that evidence to show that Lambert has a tendency to commit the crimes of which he's charged.

...

The accused Stokes, you will recall, gave evidence of which was not challenged by the State that he had no prior convictions for offences involving violence. It's agreed that I direct you that when considering the case against Stokes and the evidence admissible against him that you can accept that. That, in other words, he has no prior history of violence.

...

This is a matter for you, but it seems to me, you could be satisfied beyond a reasonable doubt that whoever struck the fatal blow or blows, committed a voluntary and intentional act. It is a matter for you obviously, in the sense that the acts were intentionally done."

[107]

"... the State need to prove concerning the mental element of murder, when you are dealing with this allegation of instigation. Obviously, that is an allegation against Mr Stokes only, and that evidence against him would include the evidence of Kylie and Corey Stokes as to what was said prior to the leaving for the McHugh's residence, going to the deceased's home, entering the home, or remaining close by while Bradley Lambert went in to carry out the agreement. Driving away from the scene of the murders afterwards, and attending at Breadmore's house with Lambert, throwing the tomahawk away en route. Throwing the knife away. You will consider the evidence he gave in the witness box, and what was in his interview. I will come to deal with that in some detail later. But that is the evidence basically against Mr Stokes, so far as instigation is concerned. And if you are satisfied beyond a reasonable doubt that Stokes instigated Lambert to murder within the terms I've outlined. It's a matter for you whether you believe that at some stage he told Lambert to cease, not to go on. If Stokes instigated Lambert to murder the McHugh's or one of them, and he proceeded with that, Stokes remains criminally liable for the murders. Unless he countermanded or withdrew his instigation with such action as he could reasonably take to undo the effect of his previous instigation and participation. You should ask yourselves what action, if any, did Stokes take to undo the effect of his previous instigation which you consider he ought reasonably to have taken.

...

Obviously if you don't accept the evidence of Kylie Stokes or Corey Stokes about what they say was said, you may not be satisfied beyond a reasonable doubt, about what the common intention was. And what the plan was, but remember you can infer a plan from all the circumstances. If you're not satisfied beyond doubt that murder was a probable consequence, and I'll examine this in a moment, you will not convict either of murder on that basis. The evidence against Mr Lambert in relation to common purpose seems to me to be the evidence of what Kylie and Corey Stokes said they said, prior to leaving, what he Mr Lambert told the police, what Mr Stokes said in the witness box the plan was to steal. The fact that he, Mr Lambert, took a tomahawk, if you accept the evidence of Kylie and Corey Stokes, and I think the evidence of Mr Stokes, what Kylie says Mr Lambert said afterwards as to what happened. What Corey said he overheard him say afterwards. The evidence of Mr Breadmore that he burnt his clothes, and later as against Mr Lambert, that Mr Lambert rang or at least had a phone conversation with Mr Breadmore about what he, - Mr Breadmore ought tell the police about whether or not he'd been to his house, you might recall that tape recording. That he gave his watch to Corey Stokes, and that Corey said, that he Mr Lambert had said 'You'd better not be stuffing me around', before they left to go. That is evidence or a piece of evidence about that.

...

That's the State's case at its highest. Obviously the accused say no, no, that wasn't the plan at all. And if you're not satisfied beyond a reasonable doubt about what the plan was, obviously then you'll have trouble going down the line to probable consequence. If the plan was only to steal you may, obviously, be not satisfied beyond a reasonable doubt that death with the attendant states of mind was a probable consequence. I hope you understand that as I've taken you through it. And I'll go back to it with the memo later. Now I remind you that we have two separate trials going on. And I want to remind you of some evidence which seems to me to be important. And the evidence against Mr Stokes is evidence I want to look at now. Obviously, I'm not going to deal with this evidence in minute detail. Some I will refer to specifically, but in general it seems to me important evidence against Mr Stokes on behalf of the State is that what Kylie said he said to her in the weeks prior to the murders. We're dealing with the case against Mr Stokes where he gave evidence on his trial which is admissible against him, not against Mr Lambert. You will recall that Kylie said that he'd said to her in the weeks before that he'd talked about this money. No evidence Mr Lambert was about at that time. The evidence of Mr Walter Williams at the suggestions that they rob is obviously evidence against Mr Stokes, not Lambert, but it's evidence against Stokes."

[111]

"Now, before you can take - before you can use this evidence against Mr Stokes, you must be satisfied of a number of matters. And unless you are satisfied of all these matters you can't use the evidence against Mr Stokes as being evidence probative of his guilt. Obviously, if a witness - anyone lies, I would have thought that credibility is an issue anyway. It is what you can do with that evidence in addition, to simply not believing them I suppose, or having some difficulty in believing them that is the approach here. First, you must be satisfied that Stokes has told a deliberate untruth, a deliberate untruth. Now in some cases he had admitted to doing that. There is a difference between the mere rejection of a person's account of events and the finding that a person has lied. In many cases where there appears to be a departure from the truth, it may not be possible to say that as deliberate lie has been told. The accused may have been confused, there may be other reasons which would prevent him, prevent you from finding that he had deliberately told an untruth. He may be confused. He may be panicked. It's a difficult circumstance being interrogated by police. Giving evidence in a court room. They're all stressful situations. Secondly, you must be satisfied that the lie is concerned with some circumstance or event connected with the offences. So they must be linked to the offences in some way. If you tell a lie about the colour of a car which has got nothing to do with the offence, it may be completely irrelevant. So you can only use a lie against Mr Stokes if you're satisfied having regard to those circumstances and events that it reveals knowledge of the offences or some aspect of them. Thirdly, you must be satisfied that the lie was told because the accused knew that the truth of the matter would implicate him in the commission of the offences and not of some lesser offence. In other words, it's really got something to do with the allegations. The accused must be lying because he's conscious that truth might convict him. There may be reasons for the lie apart from the realisation of guilt. People sometimes have an innocent explanation for lying. For example, out of shame, out of a wish to conceal embarrassing or disgraceful behaviour. They may be panicked or confused. Or he might be protecting someone else. These could all be explanations for the telling of a lie, if you found that some of these were lies. Finally, in this case the State says that the alleged lies by Mr Stokes are a critical part of the evidence against him. Before you can use those lies against him, you must be satisfied beyond a reasonable doubt not only that he did lie, but also that he lied because he realised that the truth would implicate him in the offences. Now I'm not going to take you through each and every lie that's been admitted to have been told, but there are a number of specific exchanges and as I said, before you can use any lies you must be satisfied. This is against Mr Stokes, you must be satisfied beyond a reasonable doubt the evidence of this lie or in this case that he's admitted to it."

[117]

"She denied that her reaction was that she was interested in the money. She was criticised for allowing conversations of this type to go on in the presence of her son, well you know, you make of that what you will I suppose, that's the evidence, you make of it what you will. She agreed that her car was used, she admitted lying to the police, and admitted encouraging her son to do the same. She conceded that Lambert said to her before they left, that no-one would be harmed, this is to Mr Richardson. She said, that afterwards, Lambert was shaking and admitted the killings. She was cross-examined about that, you remember the evidence, I refer to when she was questioned by Mr Coates about that. She said that she had lied to police about - to protect Lambert, even though of course the suggestion was that she was somewhat fearful of him. She denied that she was lying because Stokes had threatened her. She told us of the assaults - committed upon her. Now remember, this evidence doesn't go, as I said to you before, to show any tendency to commit the crimes alleged, it doesn't go anywhere near that at all. It - it, it as I said to you yesterday, it's use is, that you may have some motivation for exaggerating his involvement to escape the relationship in some way. Um, she said she went to Queensland with him because she still loved him, you remember that. Incidents occurred there, that saw her ultimately return, and leading up to the 24th of December when apparently she made a complaint to the police about some other allegation, and Lambert was arrested. She maintained her untruthful position that she had no knowledge of what had happened, but began to use Mr Richardson's word, to 'hint' that Lambert's involvement, you might remember that exchange. She denied lying to police because of her involvement, and she admitted encouraging the two men to go off and steal the money, but not to kill or hurt. Cross-examination to Ms Jago, she admitted that Lambert had taunted her over an affair, you might recall that exchange. Motivation, you might think for her to exaggerate his involvement. She denied that she had suggested that Lambert go with Stokes to get the money. She denied that she made up the allegation that Lambert had threatened her and she denied, that Lambert had said Darryn killed them. Of course, that is Lambert's case of course. And it was put to her that in fact, that is what he said, and she said no. She maintained that he admitted to her that he killed them. She maintained that he disposed of his boots, you remember the evidence about that. The way that he said he had. It was put to her that none of her evidence about the conversations was true, and she said it was. Now, to complete this part, I am going to refer to some cross-examination of Corey Stokes, that you might think are interesting - all a matter for you of course, and you will recall evidence of - his evidence. About parts I refer to don't mean to exclude those others. He admitted that he'd lie to help his mother. Mr Richardson asked him that and he admitted dropping hints to the police on the 24th of December about Mr Lambert's involvement. He denied that he and his mother had discussed what they would tell the police and you've heard comments about that. That their disclosures to police were remarkably similar you might think. Well it's a matter for you what you make of that. He maintained that both the accused said that they could open up a bank account and hide the money in the spare tyre of a car. He said the spare tyre idea was Lambert's idea. He said he heard some things said that his mother didn't speak of. And one of those he said was when they said that the only way to do it is to kill them, get the money and go. In some explanation he said perhaps his mother didn't believe that they would go on with it. So whether he was trying to protect her in that I don't know. He'd not mentioned someone wearing a red top before. But he did say that in evidence, and you might think. The suggestion always is if someone hasn't said something before that they're making it up on the spot, that's what the suggestion is. It's a matter for you whether you think that. To Miss Jago he maintained that Lambert had threatened him and that he'd heard a discussion to kill people. And that he was not saying what he was saying because his mother had put him up to it. Now obviously that evidence is important. Obviously it is. It's up to you what you make of it. The State say of course that it's evidence of a plan to rob and murder. In relation to the question of common purpose, it's relevant as to what is a probable consequence. The State's case is the probable consequence is death, murder. The accused say no that's not right at all. If you don't accept the evidence of Kylie and Corey Stokes of course. You may not be satisfied beyond a reasonable doubt of any planned intention to kill at all, any common plan to kill at all. If you don't accept their evidence. If you think it's so unreliable you don't accept it. You may not be satisfied beyond a reasonable doubt about it."

[119]

"Ladies and gentlemen, I want to move on now, to the evidence of Mr Breadmore. I think you will recall that he said the two accused came to his home in the early hours of the morning, he noticed a little bit of blood on Mr Lambert. Evidence against Mr Lambert obviously. You will recall what Ms Jago said about the blood. And you might be of the view of the forensic material - think that there might have been (inaudible) anyway. And of course as Miss Jago said, there is no evidence that that stain in fact, whatever it was, was blood, anyway. Mr Breadmore said that Lambert burnt his clothes. You could use that evidence, if you accept it. To assist you in whether or not you are satisfied beyond a reasonable doubt that Lambert went to the house, and he had some contact with the deceased at some stage at Arnold Street. The evidence of the phone conversation, and of course Mr Breadmore's evidence about what Lambert said had happened, he had been in a fight, and Mr Stokes had said that he had beaten up the other person, I think the word he used was 'flogged'. Is evidence against them in relation to lies of course. The evidence of the phone conversation between - and you heard the tape recording of that, is evidence against Mr Lambert on his trial of course. As the State says, that he was asking Mr Breadmore to lie. You could use that evidence if you accept it, in assisting you to come to a conclusion beyond a reasonable doubt of common intention, common purpose, and of course Lambert's involvement generally, in relation to these matters. Video tape of Mr Stokes trying to get into Mr Lambert's clothing, well you use that evidence if you make of it I suppose, to assist you in deciding whether Lambert changed clothes as he said he did. On the evidence of his trial. And if he burnt his clothes, why would he do that. And if he didn't burn Mr Stokes' clothes, he burnt his clothes you might find that that was a lie and again I'll come back to that. The evidence of the weapons. There doesn't appear to be any dispute when Mr Stokes gave evidence of the weapons that were taken. The State says that the two accused men selected weapons. That evidence would be relevant of course to the question of intention. Common purpose as well of course. Go to steal, why take weapons? The Defendant, Mr Stokes of course said that it was to scare them. And you'll remember Mr Lambert's interview when he said that the weapons were taken to scare them and that his version is that they were simply to be punched and no more than that. Now I'll go through the forensic evidence, then I want to take you back to the memo against Mr Stokes and then I'll go on to deal with the evidence against Mr Lambert. Dr. Lawrence said the time of death was difficult to estimate. That probably won't trouble you here I don't think. It was difficult to determine who died first.

...

Anyway as Kylie and Corey Stokes were present during discussions prior to the two accused travelling to 4 Arnold St, and afterwards they admitted initially lying to police, their evidence may be unreliable. You remember what I told you about that. It would therefore be dangerous to convict on the uncorroborated evidence, unsupported evidence, of Kylie and Corey unless you scrutinise it with great care. And having scrutinised the evidence with care you are satisfied of the truth of the evidence. Corroboration is evidence independent from Kylie and Corey Stokes which tends to confirm their account as to a material particular as being true, and implicates the accused in the crimes charged. You remember we went through it earlier today. The list of that evidence which could amount to that. Evidence from somewhere else which supports what they say. And there's the lies section again. Our lies, as we've already noted, have had a prominent part of the discussions in this trial. Generally a lie only affects the credit of the accused. Well you simply don't believe it. A lie may be used as evidence of guilt or to corroborate other witnesses but only in the following circumstances."

[125]

"You'll consider the evidence of Kylie and Corey Stokes. You'll consider the evidence of what Mr Stokes said in his interview. You'll consider the evidence of what Mr Stokes said in the witness box. As to whether or not you're satisfied beyond a reasonable doubt that he instigated it. Now the accessory after the fact situations. And you'll look at Mr Lambert's memo. At 2.6 and 2.7. I would think you would be looking there at the evidence of, well so far as Mr Lambert is concerned, the evidence of what Mr Stokes said he did. The evidence or the material in the interview. The evidence of what Mr Breadmore said happened at his house. And the evidence of the lies to police. As far as Mr Stokes is concerned, again the evidence of Kylie and Corey. His evidence in the witness box. His interview. What Mr Breadmore said he did. Now I don't think I need talk to you much more about accessories after the fact. I just want to briefly summarise the Defence situation. The Defence situation in each case. Mr Stokes gave evidence. He doesn't have to of course. You've heard what I've told you about that. He said he was a good friend of Tony McHugh's. He repaid the loans. You remember the loan, there was some evidence about a loan. He, Tony had told him he said, that there was between a hundred and fifty to two hundred thousand dollars in the house. Said he told him that a number of times. He admitted stealing the money, or talking about stealing the money with Williams, just alcohol talk. On the 17th of September, he said that he, Lambert and Kylie and Corey were at the house, he suggested taking the money again, and this time someone took him up on it. He gave Lambert the address as he wasn't going. He eventually decided that he would go, said there was no discussion about harming anybody. He said that Kylie said 'well if you get recognised you'll have to kill them. And Bradley said, 'if it has to happen, it will happen'. Stokes said that he wouldn't be going in, that wasn't part of his plan at all. Weapons were taken to scare them. He took his knife because Lambert a weapon, he says. 'Lambert took a weapon', he says. He said that when he left the house he had no suspicions that anyone was going to be harmed, not a probable consequence as far as he was concerned, not part of the plan. Kylie got Lambert's clothes for him and selected them for him. He showed Lambert where to go. Lambert said he needed some gloves, and they got them from Tony McHugh's. They went to the car park, they both got out, eventually got to the backdoor, it was locked. Stokes said to Lambert, 'try the front door'. He Stokes, went back to the car, while Lambert went to the front door. Stokes heard the glass breaking, he had some cigarettes in the car, he was sitting there, he thought that Lambert was taking a long time to find the money, heard some banging. He went back towards the house, he threw the knife under the, under a bush. He went to the house and he saw Lambert in the doorway. He said, 'what have you done'. You remember that exchange I read out from his interview, 'what have you done', - from his evidence rather. He saw blood on him, Lambert asked him where the money was, they both went inside. He said Lambert kicked a suitcase and said the young one wouldn't die. And then Mr Stokes says that he said, 'what have you killed them? I'm just going, I don't want nothing'. He said he went back to the car and Lambert came back shortly after, and he was very, - he was upset, he was upset rather when Stokes where he'd hid the knife. They go to Breadmore's house, and the clothes are burnt, he subsequently admitted that he wasn't completely frank with the police afterwards as to his involvement. His case obviously is that harm was not part of the plan, it was limited to stealing. Don't forget he doesn't have to prove anything, it's not a matter for him to prove anything, that's his case, and remember the approach, as I said to you yesterday, to his evidence when he gives evidence on his own behalf, you just, - you assess that, give it what weight you think is appropriate, you consider the evidence against Mr Lambert that Mr Stokes gave with some care for the reasons I told you yesterday. And Mr Lambert's case is in his interview really. He says that well, Mr Stokes did the killing, he was there - killing was not part of the plan. I have just gone through the interview with you. Mr Lambert says, so far as he was concerned robbery was the plan. He admits going there. He says that he had his knife for protection. Took his car because it was quieter. Stokes threatened him, you remember after the incident in the interview, he suggests that - or he said that Mr Stokes put the knife - or not the knife - the tomahawk up against his face, put some blood on him. They changed clothes he said. He said, and I have read this from the interview, that Kylie told them to go and bash them, to punch them. In his interview he denies that weapons are to be used. He admits assisting Stokes by suggesting a change of clothing. So his case again, is that Stokes was acting independently of any plan obviously, and this wasn't part of the plan as far as he was concerned. He doesn't have to prove anything of course. The State have to prove his guilt beyond a reasonable doubt. That is his case he says. Well, you know of this [sic] was planned. They are the Directions and the matters in the evidence to which I want to make reference. I will just see whether counsel want me to make any clarification of anything that I have said to you, or to refer to any matters that I haven't referred to. Mr Coates?"

[140]

77 At the trial it was agreed to be a fact that Lehman McHugh, by his last will, left the whole of his estate to Anthony McHugh, except for a legacy of $5,000. It was also agreed to be a fact that Anthony McHugh, by his last will, left the whole of his estate to the appellant Stokes and Stokes' former wife. There was evidence that Stokes and Anthony McHugh had been lovers; that their relationship had ended; and that Stokes knew of the provisions of both wills. There was evidence of rumours in the Penguin community that Lehman McHugh had a lot of money in his house; evidence that Stokes had told others that he believed there was a large sum of money in the house; and evidence that police officers found $39,010 in the house after the killings.

78 There was evidence that a window in the front door of the house had been broken. The Crown contended that the appellants had broken it to gain entry. There was evidence that the investigating police found no sign of any search for the money having occurred in the house. There was evidence that Anthony McHugh had been struck some 73 times, and that his wounds could have been caused by a tomahawk. There was evidence that Lehman McHugh had been killed in his bed, having been struck at least 15 times, and that his wounds also could have been caused by a tomahawk. The Crown contended that both men were deliberately killed; that both appellants formed the intention to kill them before arriving at the house; and that they took no steps to disguise themselves or keep their entry quiet because they intended that their victims would not be alive to incriminate them.

79 The appellant Stokes has a sister named Kylie Stokes. She and her son Corey Stokes both gave evidence for the Crown. At the time of the killings, Kylie Stokes was cohabiting with the appellant Lambert. They and Corey Stokes were staying temporarily with the appellant Stokes at his home. Lambert, Kylie Stokes and Corey Stokes were planning to travel to Queensland some days after the night in question.

80 Kylie Stokes gave evidence of a discussion on the night in question, to the following effect. The appellant Stokes had previously told her and Lambert that there was a large sum of money at the McHugh residence. The two men discussed going and getting the money. Stokes said that, to get that money, they would have to kill the McHughs. Lambert was keen to go. Stokes said that Lambert would have to kill them, and that "the old man would have to go first" so that what he had would pass to his son, and then to Stokes. Stokes armed himself with a knife. Lambert armed himself with a tomahawk. The two appellants left for a few hours. When they returned, Lambert had different clothes on. Lambert said that he had changed clothes at his cousin Robbie Breadmore's house. He also said he "did it". The next day Lambert said that, after leaving the McHughs' house, he went to Breadmore's house, where he burnt his clothes and had a shower. He said that he and Stokes had thrown the tomahawk into a river. The appellants told Ms Stokes to say that they had watched the football, gone to bed, and not left the house on the night in question.

81 Corey Stokes gave similar evidence to that of his mother. He said the appellant Stokes had told him that he had left a knife in the bush. Mr Breadmore gave evidence for the Crown. He said that the appellant turned up at his place; that Lambert had blood on his clothes; and that Lambert had a shower and burnt his clothes before leaving. There was evidence that the tomahawk was found in the Leven River near the bridge at Ulverstone.

82 The Crown contended that both appellants had lied to the police, and that their lies indicated that they had colluded together to create an alibi for each other, and to blame others. There was evidence of Stokes telling the police that he had stayed home all night on the night in question, watching football with Lambert and Kylie Stokes; that he did not know Lehman McHugh had money in the house; that no car left his residence; that people named Sharman might have been responsible for the murders; and that he did not discuss money with Lambert on the evening in question. There was evidence of Lambert telling the police that he had watched football on the night of the murder with Stokes and his sister, and suggesting that the Sharmans might have been responsible for the murders.

83 There was evidence of a police interview on 29 December 2004 when Stokes admitted his presence at the time of the killings. He said that he and Lambert had discussed getting the money from the house; that they drove to Penguin together; that Lambert smashed the door; that he (Stokes) had a knife, and meant to go inside, but could not; that Lambert killed the two men; that Lambert had a tomahawk; that they did not search for money; that Lambert told him that "the young one wouldn't fucking die"; that the tomahawk was thrown off the Leven River bridge; that they went to Breadmore's place; that they told Breadmore that Lambert had been in a fight; and that there had been a discussion before they went to Penguin about the people in the house dying. Referring to a conversation with Lambert before the killings, he told the police, "Bradley said, if it comes to it, if it comes to it, if it happens they'll die." He said Lambert had given him a knife and said, "Take this and if I don't, if something happens and they have to be killed and when I hit 'em and it doesn't work, you finish it." He agreed with a police officer that he and Lambert "planned to go and rob the house". When asked by a police officer whether he accepted that two people might have to be killed, he responded, "... yeah I suppose I'll have to ...". A little later in the interview he agreed that he knew that it was a very real prospect that the men would be killed. A little later he agreed that he was well aware of the fact that the two men were possibly going to die. He said, "I couldn't go through with any of it so I stayed outside." He admitted that he had thrown the knife under a bush near the scene.

84 There was evidence of admissions made by Lambert in his police interview on 31 December 2004. He told the police that Stokes "had been talking about going to bump, like going to rob these two blokes over in Penguin." Early in the interview, he said that Stokes went into the house while he stayed outside; that Stokes came back out and asked him to come in and help him find where the money was; that he saw a fellow lying in a corner of a bedroom with his head facing down; that he saw Stokes go over and hit him with the tomahawk; that he ran back to the door; that he put the knife under a bush; that he waited ten or twenty minutes for Stokes to return; that they went to Breadmore's house; that he changed into Stokes' bloodstained clothes before going inside; and that he had a shower and burnt those clothes there. The interviewing officers took him through his version of events again, slowly and in detail. He told them that Stokes said there was a lot of cash at the house; that he had thought that he was going into the house to bash the men up; that Stokes took the tomahawk to the house; that he took the knife; that they were going to knock the men out and look for the money; that he thought Stokes would go in first to knock the men out, and that they would then look for the money; that Stokes told him to wait at the front door, and said that he would go in and knock the men out; that Stokes entered the house by hitting the front door with the tomahawk; that Stokes threw the tomahawk over the bridge; that he and Stokes changed into each other's clothes outside Breadmore's house before going inside; and that he told Kylie Stokes, "We did it. Darryn murdered 'em." There was a discussion with one of the police officers about the probable consequences of knocking out an 84 year old man. Lambert said that he did not think about the possibility that knocking out the man could kill him, but conceded that that was a probable consequence, and that he had gone to Penguin with full knowledge that there was a strong possibility that one or both of the two individuals would die.

85 There was evidence that on 3 January 2005 Stokes, in the presence of police officers, attempted to put on the trousers Lambert had been wearing on the night in question, but that they were much too small for him. A videotape of his attempt to put on the trousers was tendered as an exhibit.

86 The Crown also relied on some of the evidence given by Stokes. He gave evidence that, before he and Lambert set out for Penguin, Kylie Stokes said to Lambert, "If you get recognised Darryn, you're going to have to kill 'em." He said that Lambert replied, "If it has to be done, it will happen." He said that Lambert took a tomahawk and that he took a knife. He said that, at Penguin, Lambert came out of the house with what looked like a lot of blood on him. He said Lambert told him at the scene that the younger man "wouldn't die".

[179]

114 Immediately after the learned trial judge had summarised the principal factual contentions of each appellant, he asked defence counsel whether they wanted him to clarify anything or add anything to his summing up. Each defence counsel replied in the negative. There was a little further discussion, as a result of which his Honour took the jury through a list of possible verdicts that appeared in his memorandum. At a later stage, a supplementary direction was given by his Honour as to certain admissions being admissible only against one appellant or the other. However, neither defence counsel sought any supplementary direction to remind the jury of any of his or her arguments.

115 When a question arises as to whether a summing up has been so defective that a miscarriage of justice has resulted, one relevant consideration is the reaction of defence counsel to the hearing of the portion of the summing up that has been criticised: La Fontaine v R (1976) 136 CLR 62 per Barwick CJ at 72; Lee v Tasmania [2006] TASSC 92 at pars38 - 40. The Crown relies on those cases and contends that the silence of defence counsel should be taken as an indication that they considered that their clients' cases had been adequately put to the jury. Counsel for both appellants submitted that that should not be inferred in this case since the arguments they relied on were referred to at so many different stages during the summing up that it was difficult for them to make an assessment, immediately upon its conclusion, as to whether any important arguments had been missed. I accept that such an assessment would have been very difficult. However defence counsel should not have had any difficulty noticing that the learned trial judge's summaries of their clients' cases covered only their clients' factual contentions, and not their arguments. It is perhaps surprising that no submissions were made about that state of affairs.

116 The fact that neither defence counsel asked the learned trial judge to summarise their principal arguments is a factor that weighs in favour of the Crown. It suggests that the summing up seemed fair and adequate when it concluded. But that factor is no more than a factor that has to be taken into account in deciding whether the summing up, taken as a whole, was so defective that a miscarriage of justice resulted.

[181]

117 In a short and simple criminal trial, it might be sufficient for the trial judge, when putting the defence case to the jury, simply to remind the jury of the accused person's principal factual contentions, without reminding them of defence counsel's arguments. This was a three week trial of two accused with the Crown case prosecuted on a number of alternative bases. In my view it would have been preferable for the learned trial judge, in the part of the summing up that he devoted to the putting of the defence cases, to have reminded the jury of defence counsel's principal arguments as well as the appellants' principal factual contentions. That would not have taken long. It would have helped the jury, and it would have been a fair thing to do. But did a miscarriage of justice result from him not doing that?

118 In my view the learned trial judge adequately put to the jury the principal defence arguments against the contention that the two victims were killed as part of a plan by the appellants for Stokes to receive an inheritance. That contention was based substantially on the evidence of Kylie and Corey Stokes. His Honour repeatedly warned the jury about Ms Stokes' possible reasons to incriminate Lambert, and to exculpate herself, and of the criticisms made by defence counsel of her son's evidence. He also referred to the argument that a lack of precautions and planning suggested that the appellants were intending only to steal, and not that anybody was to be killed.

119 But, in other respects, I think that the putting of the arguments of defence counsel was inadequate. Whilst his Honour made it clear that it was the case of each appellant that the other was solely responsible for the killings, he said very little as to the arguments advanced by counsel for each appellant as to why the other appellant was more likely to have been the killer. In relation to the proposition that, if the appellants intended only to steal cash from the house, the murder of each victim was not a probable consequence of the prosecution of that purpose, his Honour reminded the jury three times that defence counsel contended that murder was not a probable consequence. However he said almost nothing as to the arguments relied on to support that contention He mentioned once the evidence that the victims were expected to be asleep, and not to wake up because of deafness and the use of sleeping pills, but he did not relate that evidence to any argument. Similarly, he reminded the jury of Stokes' evidence that the tomahawk and the knife were taken to Penguin to scare the McHughs, without relating that piece of evidence to any argument.

120 For these reasons I think that, in relation to each appeal, the ground relating to the convictions is made out.

[182]

121 The Crown relies on the Criminal Code, s402(2). It contends that, even if the learned trial judge did not adequately put the defence case to the jury, "no substantial miscarriage of justice has actually occurred" in relation to either appellant, and that the appeals should therefore be dismissed.

122 In order to determine whether a substantial miscarriage of justice has actually occurred, this Court must consider the whole of the record of the trial and the fact that the jury returned guilty verdicts; and must also consider whether the evidence properly admitted at trial proved, beyond reasonable doubt, the guilt of both appellants in relation to both charges: Weiss v R [2005] HCA 81; (2005) 224 CLR 300 at 317.

123 In my view the Crown's strongest argument at trial was that each of the deceased was murdered in the prosecution of a common unlawful purpose of the appellants, and that each murder was of such a nature that its commission was a probable consequence of the prosecution of that purpose. Stokes admitted in his evidence that they went to the house for the purpose of stealing cash. Lambert made a similar admission in his police interview. Each admitted that, between them, they were armed with a tomahawk and a knife. Stokes made admissions in both his police interview and his evidence indicating that he contemplated that both men might be killed. Lambert admitted to the police that he had gone to Penguin with full knowledge that there was a strong possibility that one or both of the men would die. On the evidence most favourable to the appellants, this was a domestic burglary during which an intruder was armed with a tomahawk. In such circumstances, a peaceful outcome is far from inevitable. A burglary victim might unexpectedly be awake, might wake up, might get a good look at the intruder, or might even try to fight him. In such a tense situation, the intruder might panic or over-react. An intruder armed with a lethal weapon could use it and inflict fatal injuries, perhaps to overcome resistance, or perhaps to eliminate a risk that the victim would identify him to the police.

124 Taking into account the whole of the record of the trial including the guilty verdicts, I think that a number of conclusions are inevitable. Having regard to the extent of the injuries to both victims, I think it must be concluded that both men were deliberately killed. Having regard to the admissions of both appellants, I think it must be concluded that no-one but the appellants could have killed them. I think it must also be concluded that both appellants went to the house in Penguin for the purpose of prosecuting a common unlawful purpose - either to steal from the house, or to kill the men so that Stokes could receive an inheritance. If the former purpose was being prosecuted, the killings were no doubt carried out in the prosecution of that purpose, and probable consequences of its prosecution. If the appellants intended only to steal, I think the only rational hypothesis is that the victims were killed in order to facilitate the intended stealing, either to overcome their resistance, or to prevent them from identifying the appellants to the police. In my view, if the appellants' intention was to steal, there is no other likely reason for either of the appellants to have killed either of the deceased. It is true that nothing was stolen, but it would be understandable if the appellants abandoned their plan and simply fled after two horrific killings.

125 Having regard to the whole record of the trial, but to those matters in particular, I think it should be concluded that the evidence properly admitted at the trial proved, beyond reasonable doubt, the guilt of both appellants in relation to both murder charges.

126 Counsel for each appellant made a submission to the effect that there is always a miscarriage of justice when a trial judge has inadequately put an accused person's case to a jury. Counsel for Lambert relied on R v Schmahl [1965] VicRp 95; [1965] VR 745 at 748 - 749, where Winneke CJ held that the defence case had not been properly put to the jury; that that made it dangerous to allow the verdict to stand; and that it was the duty of the Full Court to hold that a miscarriage of justice had occurred. However the trial judge in that case had failed to put the defence case only in the sense that he had not explained to the jury the limited way in which they could use evidence of a prior inconsistent statement by the accused. It by no means follows from that case that, however strong the case against an accused person, a failure to put his or her case adequately to the jury must always result in a miscarriage of justice.

127 In Weiss (supra) at 317, the High Court said the following:

[184]

128 That passage identifies two different kinds of defects in criminal trials, namely a defect resulting in "a significant denial of procedural fairness", and a defect amounting to a "serious breach of the presuppositions of the trial". I think those categories must overlap. I think it is also clear that questions of degree are involved in relation to each type of defect. A denial of procedural fairness will result in a miscarriage of justice only if it is a significant denial. A breach of the presuppositions of the trial will amount to a miscarriage of justice only if it is sufficiently serious. The latter type of irregularity must "go to the root of the proceedings": Wilde v R [1988] HCA 6; (1988) 164 CLR 365 per Brennan, Dawson and Toohey JJ at 373. The irregularity would need to be "a fundamental one" or "sufficiently serious to warrant the conclusion that the accused has not had a proper 'trial' at all": R v Hildebrandt (1963) 81 WN (Pt 1) (NSW) 143 at 148; Conway v R (2002) 209 CLR 203 per Kirby J at 241. An unbalanced summing up, in which a jury was not reminded of the accused's arguments, was regarded by the Queensland Court of Appeal as contributing to a significant denial of procedural fairness in R v Zurek [2006] QCA 543.

129 In this case, the learned trial judge went a long way towards discharging his duty to put the defence case to the jury. He reminded the jury of each appellant's principal factual contentions. He reminded the jury of the most important arguments of defence counsel relating to the primary basis of the Crown case. Having regard to the authorities that I have referred to, I do not think it can be said that the inadequate putting of the defence case was so serious or fundamental a breach of the presuppositions of the trial as to deny the application of s402(2). I accept that such an irregularity in a summing up constitutes a denial of procedural fairness, but in my view the irregularity in this case was not so significant as to have resulted in a substantial miscarriage of justice.

130 I think it would be appropriate for each appellant to be granted leave to appeal against his convictions, but the convictions must stand.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (188 paragraphs)

Lambert and Stokes v Tasmania [2007] TASSC 76 (26 September 2007)

Parties

Cases Cited (15)