Markby v The Queen

The evidence showed that the two accused men met Syrch by arrangement near Centennial Park in the early morning of 23rd November 1975. At the suggestion of Holden, the applicant carried in a travel bag a dismantled rifle with a loaded magazine. According to the applicant the purpose of the meeting was to do a deal with Syrch, who hoped to buy from Holden a quantity of marijuana for $3,000. The Crown case was that the accused men intended to rob Syrch of the $3,000 and kill him. Syrch had driven to the meeting place in a panel van, and the two accused men left him there for a short time under the pretence of getting the drugs, but in fact to assemble the rifle. They returned to the panel van, Holden now carrying the rifle. The applicant began to speak to Syrch when the rifle which was held by Holden was discharged and Syrch was shot in the head at close range. The wound caused by the shot was capable of causing death, but it was a question for the jury whether it did so, and if so how long it took for Syrch to die. The accused men then drove to Matraville, taking Syrch with them. On the way four more shots were fired into Syrch's head. The applicant gave evidence at the trial, in the course of which he said that he drove the car, and that Holden fired the shots. Holden, on the other hand, in an unsworn statement, denied that he fired any of the shots except the first, which he said was accidental. The accused men left the body of Syrch at Matraville, after taking the $3,000 which they later divided between themselves.

There was ample evidence on which the applicant could have been convicted of murder and the contrary was not suggested before us. Two matters must however be noticed. The first is that although the jury might readily have inferred that the applicant was a party with Holden to a plan to rob Syrch, the inference that they had agreed to kill or injure Syrch was not nearly so strong. The shooting near Centennial Park may have occurred by accident or may have been done by Holden on the spur of the moment. The purpose of carrying the loaded rifle may have been only to protect themselves should Syrch offer resistance or to frighten Syrch if he refused to part with the money. The second thing to be mentioned is that the Crown did not advance, and indeed disclaimed, a case of what is often called felony murder - that is, the Crown did not ask the jury to find that the accused men were guilty of murder because the act done by Holden was done in an attempt to commit, or during or immediately after the commission of, a crime punishable with death or penal servitude for life: see s. 18 (1) (a) of the Crimes Act, 1900 N.S.W., as amended. Since the question was not argued, I express no opinion on whether it would have been possible to make out a case of felony murder against the applicant.

The first ground on which the present application is supported is that there was a misdirection in relation to the circumstances in which an alternative verdict of manslaughter was open.

In the course of a long and careful summing up the learned trial judge first gave general directions as to the law and then gave special directions applicable to the respective situations of Holden and the applicant. He dealt with the circumstances in which Holden could be found guilty of manslaughter. In relation to the applicant he discussed the question of common purpose, and explained that the applicant sought an acquittal on the ground that what Holden had done was outside the scope of any common purpose, and on the further ground that the applicant had withdrawn from any common enterprise before the shooting occurred. He then gave the following direction in relation to an alternative verdict of guilty of manslaughter against the applicant:

Mr. Traill also addressed you on the basis that there was an alternate verdict of manslaughter available to you in respect of the accused Markby. It seems to me that this verdict, if it is one you feel you should arrive at, could only be considered by you if the following findings were made: If the discharge of the shots into the deceased was carried out by the accused Holden in the course of and pursuant to a common purpose to rob but his act did not amount to murder in your view - in other words, Holden's act was not one done with intent to kill or to inflict grievous bodily harm on the deceased - and that his, Holden's, act which caused the death was unlawful and dangerous so in those circumstances your verdict in respect of Holden was manslaughter, not murder, and correspondingly, if you found that the accused Markby was a party to the common purpose in the manner I have put to you, then you could not find him guilty of murder and his finding would also be manslaughter. At the conclusion of the summing up counsel for the applicant asked for a redirection in the following terms: If the jury are satisfied that the co-accused were equipped with a weapon intending to frighten Syrch, that Markby did not have any murderous intention, that Holden fired the gun that killed Syrch, they may find a verdict of manslaughter as the enterprise envisaged some degree of violence and the death of the victim was a mere unforseen consequence of the possession of the gun. The learned trial judge declined to give the redirection sought, stating that he considered that there was no basis in the evidence for it.

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] .

1. [1970] 1 Q.B. 352, at p. 356. 2. [1963] 1 W.L.R. 1200, at p. 1205-1206; [1963] 3 All E.R. 597, at p. 601. 3. (1963) 48 Cr. App. R. 6. 4. [1970] 1 Q.B. 352, at p. 356. 5. [1966] 2 Q.B. 110, at p. 120. 6. (1976) 51 A.L.J.R. 243, at p. 246.

The relevant principle, in its application to a case similar to the present, was stated as follows by the Court of Criminal Appeal in Reg. v. Reid [6] :

When two or more men go out together in joint possession of offensive weapons such as revolvers and knives and the circumstances are such as to justify an inference that the very least they intend to do with them is to use them to cause fear in another, there is, in our judgment, always a likelihood that, in the excitement and tensions of the occasion, one of them will use his weapon in some way which will cause death or serious injury. If such injury was not intended by the others, they must be acquitted of murder; but having started out on an enterprise which envisaged some degree of violence, albeit nothing more than causing fright, they will be guilty of manslaughter. 1. (1975) 62 Cr. App. R. 109, at p. 112.

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.

1. (1969) 122 C.L.R. 444. 2. (1976) 51 A.L.J.R., at p. 245.

The applicant complained also of the directions given in relation to common purpose and aiding and abetting, but since I have reached the conclusion that the misdirection as to a verdict of manslaughter was such as to require a new trial to be had, I do not find it necessary to examine those criticisms, or to express any view on the correctness of the judgment of the Court of Criminal Appeal in relation to them. There is however a further question that must be considered, since a decision upon it would affect the evidence that may be given on a new trial.

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:

The Crown argued to you that in this case, in view of this operation by each of the accused before, so the Crown argued, a rip-off with force and armed with a rifle, each accused knew that retaliation was likely to follow a rip-off and that the only way to prevent retaliation or reprisal was by elimination of the victim. Later the learned trial judge said: It is part of the Crown case that each of those earlier episodes of "rip-off" afforded each of the accused ample knowledge of what was involved in a "rip-off", the type of people who were involved in a "rip-off", and the consequences likely to follow a "rip-off". Those are matters which are relevant to the subsequent operation in which they were engaged, namely the alleged "rip-off" of the deceased.

Further by way of argument, the Crown says that the earlier rip-off, or the two, indicated a snowballing effect, that at first it was only a small one of $700, that the next one involved $2,100 and this one involved a much larger sum. Gentlemen, you would look to these earlier episodes of rip-off for the purposes of judging what knowledge and experience each of the accused had in relation to a rip-off and to determine whether this experience provided some evidence of motive or intent. Those earlier episodes, so the Crown argued, would assist to explain their course of conduct on 23rd November.

You are not concerned with the fact whether there was a crime or not involved in those episodes. You would not decide this case on the basis that each or one of the accused was probably guilty of an earlier offence of stealing. That would not be the use you should make of it. The use that can be made of it is to explain their knowledge, their prior experience, and to give weight to their conduct on the particular relevant date.

The principles on which evidence of similar facts is admissible in criminal cases were authoritatively stated in Makin v. Attorney-General (N.S.W.) [9] :

It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused. If the evidence is admissible in accordance with these principles the trial judge still has a discretion to exclude it if its probable effect "would be out of proportion to its true evidential value": see Harris v. Director of Public Prosecutions [10] . 1. [1894] A.C. 57, at p. 65. 2. [1952] A.C. 694, at p. 707.

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] ).

1. [1975] A.C. 421. 2. [1952] A.C., at p. 705. 3. [1952] A.C., at pp. 705, 710. 4. [1975] A.C., at p. 444. 5. [1975] A.C., at p. 439. 6. [1952] A.C., at p. 710. 7. [1975] A.C., at p. 456. 8. [1975] A.C., at pp. 452-453. 9. [1975] A.C., at pp. 439, 441, 442, 452, 454, 462.

It is apparent that the evidence in question in the present case was not admissible in the way suggested by the learned trial judge, that is, as showing that the applicant was aware of the nature and likely consequences of an attempt to cheat or rob a person who was seeking to buy drugs, and in that way showing the applicant's motive or intent. No doubt a person who either commits, or is the victim of, a criminal act thereby gains some experience of the nature and consequences of such an act. To hold that evidence that a person accused of one crime had committed a similar crime is admissible because it shows his knowledge or experience would virtually destroy the fundamental exclusionary rule embodied in the first of the principles stated in Makin v. Attorney-General (N.S.W.) [20] . To say that evidence that the accused had been the victim of a similar crime was admissible for the same reason would be even less acceptable, because, without more, the evidence simply does not tend to support the case against the accused. Similarly, evidence that an accused person knew, from his previous involvement in a crime, that the victim of a robbery or of a deception, particularly if drugs are concerned, is likely to seek a violent revenge has no strong degree of probative force on the issues whether the accused had a motive to kill his victim and intended to do so. The fact that A was assaulted by X, whom he had robbed, has no material bearing on the issue whether A intended to kill Y after he had robbed him. The further argument that there was some significance in the "snowballing" of the amounts is utterly without substance.

In the Court of Criminal Appeal the admission of the evidence was justified on the additional ground that it showed an association between the applicant and Holden and also showed that the common purpose alleged by the Crown was more likely to have occurred because of the knowledge and experience gained by the two men in relation to these earlier episodes. Some of the evidence tended to show that the applicant had a criminal disposition, but the question is whether it was sufficiently relevant in some other way. It was not established that there was any close association in time, place or method between the plan to "rip-off" Allan Browning and the crime with which the applicant was charged or that there was any close or striking similarity between the two transactions in any other way. In my opinion the evidence was not relevant to any issue before the jury within the second of the principles in Makin v. Attorney-General (N.S.W.). It was in my opinion wrongly admitted.

For the reasons given I consider that special leave to appeal should be granted. I would allow the appeal and would quash the conviction of the applicant and order a new trial on a charge of murder.

I agree with the reasons for judgment of the Acting Chief Justice, would grant special leave and allow this appeal.

I agree with the Acting Chief Justice and cannot usefully add anything.

The direction that the applicant could only be found guilty of manslaughter if his co-accused, Holden, was also found guilty of manslaughter was erroneous. If Holden killed with intent to kill or inflict grievous bodily harm but this intention was not part of any common purpose shared by the applicant, then, despite Holden's conviction of murder, the applicant could properly be convicted of manslaughter, or acquitted entirely if what Holden did was sufficiently far removed from any common purpose (see Reg. v. Lovesey [21] ).

On this ground, special leave should be granted, the appeal allowed, the conviction set aside and a new trial ordered.

I agree with the reasons for judgment of the Acting Chief Justice and have nothing to add. Special leave should be granted and the appeal allowed.