Markby v The Queen

Markby v The Queen - [1978] HCA 29 - HCA 1978 case summary — Zoe

[9]

It was erroneous to tell the jury that the applicant could be found guilty of manslaughter only if Holden also was guilty of manslaughter and not of murder. When two persons embark on a common unlawful design, the liability of one for acts done by the other depends on whether what was done was within the scope of the common design. Thus if two men go out to rob another, with the common design of using whatever force is necessary to achieve their object, even if that involves the killing of, or the infliction of grievous bodily harm on, the victim, both will be guilty of murder if the victim is killed: Reg. v. Lovesey [1] . If, however, two men attack another without any intention to cause death or grievous bodily harm, and during the course of the attack one man forms an intention to kill the victim, and strikes the fatal blow with that intention, he may be convicted of murder while the other participant in the plan may be convicted of manslaughter: Reg. v. Smith [2] ; Reg. v. Betty [3] ; Reg. v. Lovesey [1] . The reason why the principal assailant is guilty of murder and the other participant only of manslaughter in such a case is that the former had an actual intention to kill whereas the latter never intended that death or grievous bodily harm be caused to the victim, and if there had not been a departure from the common purpose the death of the victim would have rendered the two participants guilty of manslaughter only. In some cases the inactive participant in the common design may escape liability either for murder or manslaughter. If the principal assailant has gone completely beyond the scope of the common design, and for example "has used a weapon and acted in a way which no party to that common design could suspect", the inactive participant is not guilty of either murder or manslaughter: Reg. v. Anderson; Reg. v. Morris [4] . If however the use of the weapon, even if its existence was unknown to the other party, is rightly regarded as no more than an unexpected incident in carrying out the common design the inactive participant may be convicted of manslaughter: Varley v. The Queen [5] .

[13]

It is the duty of the judge on the trial of a charge of murder to direct a jury that a verdict of manslaughter is open to them if there is a basis in the evidence for such a possible verdict: see Gammage v. The Queen [7] ; Varley v. The Queen [8] . Of course the judge's duty is to direct the jury in relation to the facts of the case, and he is not bound to invite them to consider a verdict which they could not properly return having regard to the evidence given. But in the present case the jury could properly have returned a verdict of guilty of manslaughter against the applicant even if they had found that Holden was guilty of murder. If the jury were satisfied that the two accused men had planned to rob Syrch and that a rifle should be carried but that no harm, or at least no grievous bodily harm, should be done to Syrch and that Syrch's death was, so far as the applicant was concerned, an unexpected consequence of the carrying out of the design a verdict of guilty of manslaughter would have been a proper one. It was submitted on behalf of the Crown that there was no basis in the evidence on which the jury could have taken such a view of the facts, because the applicant's own evidence at the trial was that he thought that there was to be a deal concerning drugs, and that he was never a party to any plan to commit a robbery. However if the jury rejected that evidence, as no doubt they did, they could not unreasonably have taken the view that the two men intended to rob Syrch but not to harm him and that at some stage Holden, unknown to the applicant, had changed his mind and formed an intention to shoot Syrch. On that view the jury should have found Holden guilty of murder but the applicant guilty of manslaughter. But the effect of the direction given by the learned trial judge was that a verdict of guilty of manslaughter was not open on that view of the facts. The jury may therefore have been led to return a verdict of murder when the proper verdict on the facts as they found them was manslaughter. There was a fundamental misdirection which was likely to lead to a miscarriage of justice. It was submitted on behalf of the Crown that the directions given in relation to common design would have properly shown the jury where their duty lay. However the directions on that issue were directed to the question whether a verdict of not guilty should be returned, and not to the question whether the case was one of murder or manslaughter. Nowhere in the summing up did the learned trial judge correct the erroneous direction that the applicant could only be found guilty of manslaughter if Holden also was found guilty of manslaughter.

[16]

At the trial there was tendered by the Crown, and admitted over objection by the applicant, certain evidence as to the involvement of the two accused men in previous transactions, described as "rip-offs", in which a person attempting to buy drugs was either cheated or robbed. The evidence comprised part of a record of interview recording answers given by the applicant in response to police questioning, and the oral testimony of two witnesses, Allan Browning and Roderick Greville. The transactions occurred about two months before November 1975. In one the accused were the victims; in another they were the perpetrators. According to the record of interview the applicant said that in endeavouring to buy heroin for Holden he had handed over $700 to a person who, having taken the money, went away pretending to get the drugs, but came back alleging that he had been "bashed over the head" after having obtained only a small quantity of the drug that he had promised. When the applicant told Holden what had occurred, the latter said that they would have to get the money back, "for the person who owned it", and suggested that they "rip-off" another man, later shown to be Allan Browning. Arrangements were made that Holden should offer to supply drugs to Browning, but should instead take his money. The applicant was to drive the car in which Holden was to make his escape after he had got the money. Holden took about $2,100 from Browning, but although the applicant waited as arranged Holden did not use the applicant's car. Nevertheless the applicant shared in the benefits; Holden used some of the money taken from Browning to pay for a holiday at the Gold Coast for the applicant and himself. Later, in retaliation, Browning and Greville assaulted the applicant, who was hit so hard that a tooth was fractured. It appears that Holden also was assaulted or threatened. The learned trial judge directed the jury that this evidence might be considered in relation to the question of motive. In the course of his summing up he said:

[22]

It is unnecessary for the purposes of this case to discuss the many decisions in which the principles stated in Makin v. Attorney-General (N.S.W.) have been expounded and exemplified. The most notable recent exposition is contained in the judgments of the House of Lords in Reg. v. Boardman [11] . The first principle, which is fundamental, is that the evidence of similar facts is not admissible if it shows only that the accused had a propensity or disposition to commit crime, or crime of a particular kind, or that he was the sort of person likely to commit the crime charged. The second principle, which is a corollary of the first, is that the evidence is admissible if it is relevant in some other way, that is, if it tends to show that he is guilty of the crime charged for some reason other than that he has committed crimes in the past or has a criminal disposition. The concluding words of the statement cited from Makin v. Attorney-General (N.S.W.) should be regarded only as giving examples of the second principle which is there stated; there is no "closed list of the sort of cases in which the principle operates": Harris v. Director of Public Prosecutions [12] . Moreover the words of that statement do not mean that the admissibility of the evidence depends on the line taken by the defence at the trial, that is, on whether the accused has raised or disclaimed a particular defence: Harris v. Director of Public Prosecutions [13] . It is often difficult to decide whether a particular piece of evidence is or is not admissible within these principles. However when in doubt a judge should remember that the admission of similar fact evidence is the exception rather than the rule. To be admissible the evidence must have "a strong degree of probative force" (per Lord Wilberforce in Reg. v. Boardman [14] , or "a really material bearing on the issues to be decided" (per Lord Morris of Borth-y-Gest [15] , citing Harris v. Director of Public Prosecutions [16] ; it may not be going too far to say that it will be admissible only if it is "so very relevant that to exclude it would be an affront to common sense" (see per Lord Cross in Reg. v. Boardman [17] ; and see per Lord Hailsham of St. Marylebone [18] ). The question is thus one of degree, and in answering it the judge must apply his experience and common sense. Although the judgment which the judge is required to make is to some extent discretionary, the rule of exclusion is a rule of law and not of discretion, and the principle allowing the admission of the evidence remains subject to the discretionary power to exclude it, even if legally admissible, where its prejudicial effect outweighs its probative value. In applying the test of admissibility to which I have just referred, practical assistance, in may cases, will be obtained by considering whether there is a "striking similarity" between the similar facts and the facts in issue (see Reg. v. Boardman [19] ).

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Judgment (31 paragraphs)

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