Macfarlan JA, Hulme J, Adamson J, Matthews AJ, MacFarlan JA
Catchwords
[1952] HCA 3
Azzopardi v The Queen (2001) 205 CLR 50
[2001] HCA 25
Bullard v The Queen [1957] AC 635
Edwards v The Queen (1993) 178 CLR 193
[1993] HCA 63
Gilbert v The Queen (2000) 201 CLR 414
[2000] HCA 15
Gillard v The Queen (2003) 219 CLR 1
Source
Original judgment source is linked above.
Catchwords
[1952] HCA 3
Azzopardi v The Queen (2001) 205 CLR 50[2001] HCA 25
Bullard v The Queen [1957] AC 635
Edwards v The Queen (1993) 178 CLR 193[1993] HCA 63
Gilbert v The Queen (2000) 201 CLR 414[2000] HCA 15
Gillard v The Queen (2003) 219 CLR 1[2003] HCA 64
Huynh v The Queen [2013] HCA 6(2013) 87 ALJR 434
James v The Queen (2014) 253 CLR 475[2014] HCA 6
Johnston v The Queen [2007] NSWCCA 133
McKey v The Queen (2012) 219 A Crim R 227[2012] NSWCCA 1
Mehajer v R (2014) 244 A Crim R 15[2014] NSWCCA 167
Miller v The Queen (2016) 259 CLR 380[2016] HCA 30
R v Baden-Clay (2016) 258 CLR 308[2016] HCA 35
R v Button (2002) 54 NSWLR 455[2002] NSWCCA 159
R v Cook [2004] NSWCCA 52
R v Jackson [1993] 4 SCR 573
R v Nguyen (2010) 242 CLR 491[2010] HCA 38
R v White [1998] 2 SCR 72
R v Wilson (2005) 62 NSWLR 346[2005] NSWCCA 20
Restricted Decision [2018] NSWCCA 246
Spies v The Queen (2000) 201 CLR 603[2000] HCA 43
White v The Queen (2016) 261 A Crim R 302
[2016] NSWCCA 190
Wilson v The Queen (1992) 174 CLR 313
[1992] HCA 31
Zoneff v The Queen (2000) 200 CLR 234
Judgment (27 paragraphs)
[1]
Applicant)
Regina (Respondent)
Representation: Counsel:
G Bashir SC with C McGorey (Applicant)
T Game SC with S Howell (Applicant)
M Cinque SC (Respondent)
[2]
Solicitors:
F McGowan (Applicant)
S Alexander (Applicant)
Director of Public Prosecutions (Respondent)
File Number(s): 2015/251812; 2015/251805
Decision under appeal Court or tribunal: Supreme Court
Jurisdiction: Common Law Division
Citation: [2017] NSWSC 1659
Date of Decision: 12 December 2017
Before: Matthews AJ
File Number(s): 2015/251812; 2015/251805
[3]
Judgment
MACFARLAN JA: In March and April 2017 Mr Wade Martinez and Mr Jake Tortell stood trial in the Supreme Court at Sydney before a judge and jury on an indictment alleging against each that he:
"Count 1: On the 14th of February 2015, at Bossley Park in the State of New South Wales, did murder Gewargis Garmo.
Count 2: On the 14th day of February 2015, at Bossley Park in the State of New South Wales, wounded Gewargis Garmo with intent to cause grievous bodily harm."
The trial judge also left to the jury the statutory alternative to Count 2 (under s 35(3) of the Crimes Act 1900 (NSW)) of reckless wounding in company.
After a trial lasting nearly six weeks, at which the Crown called some 47 witnesses, they were each convicted on the murder count and Mr Martinez was also convicted on the statutory alternative to Count 2. Mr Tortell was acquitted on Count 2.
On 12 December 2017 the applicants were sentenced to (in the case of Mr Martinez, an effective total of) imprisonment with a non-parole period of 16 years and a balance of term of 6 years ([2017] NSWSC 1659).
Mr Martinez appeals, or alternatively seeks leave to appeal, against his conviction on the following grounds:
"Ground 1: The trial judge erred in failing to leave to the jury an alternative verdict of manslaughter, on the basis of a joint criminal enterprise with an agreement falling of short of intentional infliction of grievous bodily harm.
Ground 2:
(A) The trial judge failed to identify for herself or direct herself as to the necessary legal principles informing necessary directions on consciousness of guilt, and failed to give necessary directions on this issue, and/or
(B) The trial miscarried as the directions given on consciousness of guilt at the trial were erroneously inadequate.
Ground 3:
(A) The trial judge failed to identify for herself or direct herself as to the necessary legal principles informing the directions on the appellant's silence at trial and failed to give necessary directions on this issue, and/or
(B) The trial miscarried as the directions given on the appellant's silence at trial were erroneously inadequate.
Ground 4: The jury's verdict that the element 'in company' was proven beyond reasonable doubt on the alternate Count 2 was unreasonable or alternatively there was a miscarriage of justice given the verdict of the jury acquitting Tortell on both Count 2 and the alternate to Count 2.
Ground 5: The trial on the alternative offence to Count 2 miscarried on account of error of law in the direction to the element of the offence of being 'in company'."
Mr Tortell appeals, or alternatively seeks leave to appeal, against his conviction on the following ground:
"The trial judge erred in her directions on manslaughter and erred in failing to leave (or leave in any meaningful way) the alternative of manslaughter by unlawful and dangerous act upon the basis of joint criminal enterprise to injure or harm the deceased falling short of an agreement to kill or inflict grievous bodily harm."
[4]
The initial altercation in Dashmere St
On the evening of 14 February 2015 the applicants ("Wade" and "Jake") were visiting the home of Tracy McVerry at 29 Dashmere St Bossley Park. Tracy has twin daughters, Jade and Krystal. Wade and Jake had gone there to give a pet duckling to Jade's child. Tracy was out at the time and Richard Cook, her partner, was at 29 Dashmere St babysitting Jade's child. Wade and Jake arrived in Jake's black Lexus vehicle which he parked in the driveway. During the evening, whilst still at 29 Dashmere St, Wade telephoned Krystal and asked her to pick up some fast food for them. Krystal did that with Jade and their friend Cristian Younan in Cristian's Toyota Camry, which Krystal drove. When they arrived in Dashmere St, shortly after 10pm the deceased, Gewargis Garmo ("George") and his girlfriend, Nicole David, happened to be walking past. George and Nicole crossed the road to speak to Krystal and Jade who were still seated in the Camry.
Nicole gave evidence that George was told that Wade was inside the house. As she and George turned to walk away, she heard footsteps behind her and saw Wade, who started fighting with George. Wade had a knife with which he cut George's second finger on his left hand. George then ran down Dashmere St towards Mimosa Rd. Nicole got into the Camry to seek help. She was panicked and crying.
According to Krystal's evidence the "scuffle" occurred on the opposite side of the street to 29 Dashmere St. She did not see a knife but she saw George run on foot towards Mimosa Rd and Wade and Jake chase him. After Nicole got in the Camry, Krystal drove it around looking for George. Nicole was "in hysterics".
According to Jade's evidence, she told George to run when she saw Wade come out of the house. She saw Wade holding something "shiny" and then "a bit of movement" across the road. Jade indicated that "it looked like they were fighting". Then "one of them took off, running" and Wade and Jake jumped in their car and headed in the same direction that George had run.
Cristian gave evidence that he saw Wade and Jake run after George. He didn't see what then occurred as he was the front passenger in the Camry facing in the other direction. He saw Wade come back to the Lexus holding a "kitchen knife" about 30 centimetres long.
Joseph David, who lived at 24 Dashmere St gave evidence that he looked outside the window of his house and saw a "guy just running for his life and two guys" chasing him.
[5]
Rimfire Close
Nicole rang George's mobile soon after leaving 29 Dashmere St in the Camry. George told her that he was in Rimfire Close which ran off Dashmere St. Krystal collected him from there in the Camry. Police later found a blood trail left by George in Dashmere St and houses near Rimfire Close and adjacent streets.
According to Krystal, she saw the Lexus as she was driving the Camry out of Rimfire Close into Dashmere St. The Lexus was travelling in the opposite direction to the Camry but did a u-turn and started to follow closely behind it. Nicole said that whilst the Lexus was following the Camry, she looked back and saw Wade through the Lexus' front windscreen holding "a knife leaning across on the steering wheel".
[6]
Mulligan St
Krystal drove the Camry from Dashmere St to Mimosa Rd and then on to Mulligan St where the Lexus overtook the Camry, stopping on the road in front of it and forcing the Camry to stop. This occurred near the intersection of Mulligan St and Barrington St.
Krystal gave evidence that she had been travelling in excess of 50 kilometres per hour when the Lexus overtook her and skidded to a halt, positioned partly sideways across the road. She told George to get out and run, which he did. He ran back along Mulligan St towards Mimosa Rd. (This was the fourth side-road further along Mulligan St, there being two entrances to Lofty Crescent and one to Gambier St before Mimosa Rd). She did not see Wade or Jake get out of the Lexus but the Lexus started moving without them in it and Wade returned to it to put its handbrake on. Jade and Cristian got out of the Camry to make sure that George was okay. Krystal then drove the Camry around the Lexus, and went back to pick up Jade and Cristian. Not having found George, they dropped Nicole home.
Jade gave evidence that when the Camry stopped, George got out and ran down Mulligan St towards Mimosa Rd with Wade and Jake chasing him. When the Lexus started rolling, she saw Wade run back to put the hand brake on. She started running in the same direction as George and saw him and Jake, who was running behind George, turning into a side street (which is likely to have been Lofty Crescent). Cristian caught up to her, as did the Camry into which they both got.
Cristian gave evidence that the Lexus "braked in front" of the Camry and "barricaded us off". George got out of the car but Cristian lost sight of him. He saw Wade and Jake running in the direction that he had last seen George, but at some point saw Wade return to the Lexus to stop it rolling. He did not see anything in Wade or Jake's hands.
A local resident who lived at 45 Mulligan St gave evidence that he saw two males running along Mulligan St in the direction of Mimosa Rd, a few metres apart. He did not see anyone carrying a knife.
Nicole gave evidence in cross examination (but not in chief) that she recalled that when Wade got out of the Lexus he had a knife with him, like the one she had seen him holding when the Lexus was driving behind the Camry. She agreed that she had not mentioned this in either of her witness statements.
[7]
George's death
George was found dead on the driveway of 8 Garnet St at 11:20pm, about an hour after the events referred to above. As Wade submitted on appeal, there was "a strong circumstantial case" that the following had occurred:
1. George ran along Mulligan St, turning into the second entry to Lofty Crescent, and then into the yard of 1 Lofty Crescent;
2. he jumped the back fence into 8 Garnet St and made his way towards the front yard of the property, which was fenced off from the back yard but could be accessed via a gate;
3. as he opened the gate he was stabbed numerous times with a bladed instrument (that was never recovered);
4. he moved a short distance onto the driveway of 8 Garnet St before collapsing and dying; and
5. his fatal injuries were inflicted by at least 10:12 pm when Jade's call to his mobile went unanswered (as did all subsequent calls).
A forensic pathologist, Professor Johan Duflou, performed an autopsy and gave evidence that the direct cause of George's death was some eight stab wounds to his body. He found wounds to George's trunk, neck and arms, including lethal injuries to his left lung, heart and aorta. He observed a number of injuries on George's upper limbs and left hand which he considered might be defensive injuries. Professor Duflou believed that all the wounds were caused by a knife. Injuries to George's left hand were superficial relative to other injuries but would likely have caused bleeding, without being life threatening.
DNA that was statistically consistent with both George and Jake's DNA was recovered from one of George's fingernails. DNA recovered from the Lexus was similarly consistent with that of George and Jake's DNA.
[8]
The alleged threat to Jade on 21 May 2015
Jade gave evidence that on 21 May 2015, a little over a month after George's death, Wade said to her, at a shopping centre, "[m]ake sure you keep your mouth shut. I'm watching". The occurrence of the conversation was captured on CCTV. The Crown alleged that the film showed Wade pointing in a way that may have been consistent with the alleged threat, whilst Wade's counsel alleged that there was no body language evident which supported Jade's evidence.
[9]
Police evidence
Police Sergeant Barnes gave evidence that there had been "drive by" shootings at Wade's family home in Bossley Park on 27 May and 31 May 2014, about 9 months before George's death. He said that police had concluded that George was involved in both of them.
[10]
Wade's case
Wade did not give evidence but called a friend, Nathan Young, to say that George had said to him in relation to Wade "fuck that cunt. I'll get him". Young reported this to Wade and that he had seen George with a gun.
[11]
Jake's case
Jake gave evidence that he and Wade had been at 29 Dashmere St for four to five hours on 14 February 2015. He said that he had been drinking and recalled that he was "pretty drunk". At one stage he heard noise outside and, on checking, saw Wade, who had left the house without his knowledge, "getting belted", with another man swinging punches at him. He said the Camry parked outside looked like it had four men inside.
He said that he then crossed Dashmere St and got in between the two men but was hit by the other man, who he realised was George, on his left temple and eye. George threw him to the ground but he got up and George chased him. Wade then pulled up in the Lexus. Jake said that he was in shock, "a bit dazed" and felt petrified. He did not know how it came about but there was almost a collision between the Lexus and the Camry. When the Lexus came to a stop, Jake got out and ran in the opposite direction to that in which it had been heading, but was not sure where he was. The last time he saw George was when George was chasing him in Dashmere St. Shortly after, Wade picked him up in the Lexus and took him home.
In cross examination Jake said he did not see Wade grab or hold a knife. He denied that he ran after George and that, earlier, Wade had had a knife in his hand during the scuffle in Dashmere St. He denied that he was involved in George's murder.
[12]
The Crown
In final address, the Crown admitted that it was most likely Jake who stabbed George, although there was a "slight possibility" that Wade did so. He submitted that it did not however matter who did it because the evidence proved that they were acting jointly "with the desire to cause serious harm to this man, [George], and that was what was done".
The Crown submitted that the jury would not accept Jake's evidence that after getting out of the Lexus (in Mulligan St) he ran straight down Mulligan St to Gambier St where he was picked up by Wade driving the Lexus. He submitted that that evidence conflicted with the CCTV evidence from the corner of Mulligan and Gambier Streets and that, instead, Jake must have turned right off Mulligan St and run into Lofty Crescent, before going through the yard of a house in Lofty Crescent and then into the Garnet St backyard where George was later found dead. The Crown submitted that both Wade and Jake had "motive, means and opportunity" but "[u]ltimately Mr Tortell had the best opportunity because the prosecution's submission to you is he was the one who followed, had the best opportunity to follow into Lofty Crescent and follow into Garnet Street". He referred to their "joint action to do serious harm" to George.
In relation to the alleged threat made by Wade to Jade on 21 May 2015, the Crown said:
"Now there was one other matter that I should refer to in the case of Mr Martinez and that is what occurred on the 21st of May 2015. Do you recall that evidence? The meeting at the supermarket or the running into at the supermarket. You would expect the defence submission to say, well, it's just irrelevant there was some so contact, nothing untoward; you have seen the CCTV footage. Well, have a look at the footage. Have a look the finger [sic] that goes out and have a look at the way in which at that point in time there seems to be something fairly, something being said that you might conclude matches what Jade McVerry is saying. Because what her evidence was is that she is told: "Make sure you keep your mouth shut. I'm watching."
Now, a man has been killed. These gentlemen were involved in an incident with this man earlier that evening without doubt in Dashmere Street, Clearly they were also involved in something occurring in Mulligan Street. So when it seems that this Mr Martinez has the opportunity on the 21st of May to speak to Jade McVerry what he says to her is fairly close to what he said to the sister on the night. And that is: 'Make sure you keep your mouth shut. I'm watching.' That, ladies and gentlemen, is a threat. And that in the submission of the prosecution was said because Mr Martinez knew very well what his role was in the killing of the deceased. That is why he said it."
[13]
The closing addresses for Jake and Wade
Counsel representing Jake and Wade made vigorous and detailed responses to the Crown's case but, save as follows, it is unnecessary for the purposes of this appeal to refer to what they said.
In her summing up, the trial judge summarised the effect of the final address on behalf Jake as follows:
"Then Mr Chapple addressed you and he emphasised that Jake Tortell was never seen at any stage during this night with a knife in his hand. In order to get from where he was, where the car was in Mulligan Street, to where the deceased was stabbed, he would have had to go over a number of fences. He could not possibly have done all of this if he had been carrying a knife.
Also you look at the phone records. They show that Jake Tortell was simply not at 8 Garnet Street at any time that night. He said that there were three no's. Jake Tortell had no motive to harm Mr Garmo, he had no criminal convictions and he had no knife. So he simply could not be guilty of the stabbing."
The trial judge referred to parts of the final address on behalf of Wade as follows:
"As to the matter of the joint criminal enterprise, [counsel] submitted that it was only after the cars had stopped in Mulligan Street that the two accused realised that George Garmo was in the Camry. So there was simply no opportunity for any agreement relating to a joint criminal enterprise to be reached.
Finally, as to the meeting in May of 2015 between Wade Martinez and Jade McVerry at the Greenfield Shopping Centre, she said look at exhibit N, which shows the two of them talking. There is nothing threatening in his body language. It was simply a friendly conversation. [Jade] is making that up."
[14]
The trial judge's summing up
Prior to the commencement of her Honour's summing up, a discussion occurred, in the absence of the jury, between her Honour and counsel concerning directions to be given to the jury in relation to the evidence of the telephone threat of 14 February and the shopping centre threat of 21 May. After the Crown acknowledged that he had submitted to the jury that the threat (or threats) showed a consciousness of guilt, her Honour said:
"Well, I was only going to specifically, I wasn't going to refer to it in terms of lies. I was going to refer to it in terms of that particular episode, that if they accept Jade McVerry's evidence that this happened and that it related to the incident on the 14th of February then they can, they don't have to, but that they can use it as a basis for inferring that the reason for doing it is because of a consciousness of his own guilt. That is the [w]ay I was going to leave it."
Her Honour then said that these observations related to the two conversations in May to which Jade deposed. Counsel for Wade indicated that she was "happy with the direction your Honour proposes".
After discussion of their contents with counsel, the trial judge provided written directions to the jury.
Relevantly, the directions instructed the jury to consider in relation to both Wade and Jake whether George's injuries were inflicted "pursuant to a joint criminal enterprise between them to kill or really seriously injure" George, and, if the answer was yes, to convict them of murder.
In relation to Count 2 against Wade, the issue of self defence was put before the jury for consideration but there was no explanation of the "in company" element of the offence.
In relation to Count 2 against Jake, the jury was required to consider whether he "was present, encouraging and assisting" Wade in wounding George.
In her summing up, which occupied 94 pages of transcript, the trial judge said the following concerning Wade's absence from the witness box:
"I come to say something about the right to silence which is a fundamental part of our criminal justice system, namely, that every person accused of a criminal offence has a right to remain silent at all times and no adverse inferences whatsoever can be drawn from the fact that an accused person has elected that right. It would be an empty or a non-existent right, if such an inference could be drawn. When you think of it as a matter of logic, if you got the right and exercise it, clearly no adverse inference can, or should, be drawn. In this case, of course we know Mr Martinez has chosen to exercise that right and not to give evidence. You can draw no adverse inference whatsoever from that fact. As I said, it would be undermining a very significant part of our criminal justice system and making it into a non-existent right if you were to do so. That is a very important matter, members of the jury."
[15]
Ground 1: Failing to leave to the jury the possibility of an alternative verdict of manslaughter on the basis of a joint criminal enterprise involving an agreement falling short of intentional infliction of grievous bodily harm
[16]
Wade's submissions
Wade's senior counsel first pointed out that although the trial judge left the alternative of a manslaughter verdict to the jury, she did so on a limited and presently irrelevant basis (see [49] above). A manslaughter verdict was said to be appropriate on that basis if the jury found that the person who inflicted the fatal stab wounds on George "did not intend to kill or really seriously injure him, maybe because of intoxication", but the jury found that the stabbing was nevertheless an unlawful and dangerous act. A finding that the assailant lacked that intention was not a realistic possibility.
Senior Counsel submitted that the jury should instead have been instructed to return a verdict of not guilty of murder but guilty of manslaughter if it:
1. was satisfied that the deceased died as a consequence of the injuries he sustained from an act committed by Jake;
2. was satisfied that at the time Jake committed that act, an agreement existed between Wade and Jake to unlawfully and dangerously assault the deceased, or assault him to occasion actual bodily harm or serious injury falling short of really serious injury; and
3. was not satisfied that Wade's agreement was for the acts committed by Jake to be committed with an intention to cause death or really serious injury even if it was satisfied that when Jake acted he did in fact have an intention to kill or inflict really serious injury on George.
She then submitted that the evidence rendered a verdict of manslaughter on this basis viable, for the following reasons:
1. By its verdict on Count 2, the jury demonstrated that it was not satisfied beyond reasonable doubt that Wade intended to cause grievous bodily harm during the first altercation, when he had a knife and ample opportunity to inflict such harm.
2. The jury may not have been satisfied that Wade knew George was in the Camry, or that the chasing and forcing of the Camry to pull over was motivated by that belief. Even if it was so satisfied, the jury may not have been satisfied that Wade was aware that Jake had a knife when he got out of the Lexus on Mulligan St. No one saw Jake holding anything when he commenced chasing George. It is not known what happened to the knife that Wade had earlier, or whether the knife used by Jake to inflict the fatal injuries was the same as that used by Wade earlier, or some other knife. The pathologist's evidence suggested that one wound was by an instrument that was double-sided. Counsel submitted that that must have been a different knife to the one Wade had had earlier.
3. It was not clear at what point Wade and Jake got out of the Lexus relative to George exiting the Camry. It was possible that Wade only became aware that George was fleeing the scene shortly before he separated from Jake (to stop the Lexus rolling back).
4. There was minimal opportunity at that point for Wade and Jake to have agreed to cause George grievous bodily harm.
5. As found by her Honour on sentencing, the evidence established beyond reasonable doubt that Jake inflicted the fatal injuries. The evidence also established that Wade was in the Lexus and was not therefore present at the time. Whilst her Honour was satisfied on sentencing that Jake had intended to kill George at that time, she made no such finding in relation to Wade.
6. It was open to the jury to infer that the savagery of Jake's stabbing went (well) beyond what was intended by Wade at the time he became separated from Jake, particularly when (as stated above) the jury was not satisfied that Wade had such intention during the first altercation and given that Jake had no known history of animosity towards George before that night (such as to alert Wade to the possibility of Jake inflicting the wounds that he did with either an intent to inflict grievous bodily harm or to kill).
[17]
Jake's submissions
In his oral address, senior counsel for Jake first emphasised that the case was left to the jury as a joint criminal enterprise matter as the Crown left open the possibility that it could have been either Jake or Wade who inflicted the fatal injuries. Because the Crown "couldn't exclude the possibility that [Wade] did it in the case against" Jake, the Crown "were driven to joint criminal enterprise".
Counsel for Jake said that the Crown suggested to the jury, expressly or implicitly, that because the stabbing was violent, there must have been an earlier agreement for that level of violence to be committed. He submitted that identifying what the assailant did was however of little assistance in this regard and that the directions of the primary judge were incorrect because they mistook liability for both Wade and Jake as "based upon the intention of the assailant". He submitted there was a real possibility that, if given the opportunity, the jury might have returned a verdict of manslaughter on the basis that the Crown had not proved beyond reasonable doubt that any agreement between the applicants did not relate to a lower level of violence. On the evidence, an alternative basis for manslaughter liability, grounded on an agreement to inflict harm short of grievous bodily harm, was thus reasonably open.
Counsel submitted, consistently with what the Crown seems to have implicitly acknowledged to the jury, that the evidence did not allow the jury to be satisfied beyond reasonable doubt that Jake inflicted George's injuries and was therefore guilty of murder because of his direct action. Counsel submitted that on the evidence there was in fact a reasonable possibility that Wade was the assailant. He referred in this regard to the following:
1. the background of grave animosity between Wade and George;
2. the absence of any such background between Jake and George;
3. the initial confrontation on Dashmere St being between Wade and George, during which Wade was armed with a knife, swung the knife at George and wounded him;
4. following the confrontation on Dashmere St, Wade drove the Lexus in an apparent pursuit of George;
5. whilst driving, Wade was seen still to be in possession of a knife;
6. On Mulligan St, Wade caused the vehicle in which George was travelling to stop its forward motion by pulling the Lexus in front and applying the brakes;
7. Wade was seen still to be in possession of a knife as he got out of the Lexus on Mulligan St;
8. Jake was seen to run down Mulligan St in the same direction as George but was not seen to be in possession of a knife or a weapon;
9. after initially running down Mulligan St in the same direction as Jake and George, Wade returned to the Lexus and applied the handbrake, before getting into the car and driving in the direction that Jake and George were seen to go;
10. the events in and around 8 Garnet St which resulted in the death of George were not known; and
11. the Crown's suggested timeframe in which the killing took place did not definitively resolve the issue of who had inflicted the fatal injuries.
[18]
The Crown's submissions
The Crown submitted that a manslaughter verdict, on the basis of an agreement for the infliction of a lower level of injury than grievous bodily harm, was not viable on the evidence. In respect of the six matters referred to at [58] above, the Crown submitted (using the same subparagraph numbers as in that paragraph):
1. There was no reason to conclude that Wade's earlier intention (held at Dashmere St) remained the same when he reached Mulligan St and exited the Lexus (although compare (4) below).
2. There was ample evidence that Wade knew that George was in the Camry and Wade was seen to have a knife in his hands as he was driving the Lexus. As to whether Wade was aware that Jake had a knife and that the knife Jake used may have been different from that used by Wade during the altercation in Dashmere St, the Crown pointed out that Dr Duflou's evidence was simply that it was possible that the knife that caused one of the injuries to George was double-edged. The knife used by Wade, a kitchen knife, was not doube-edged. The Crown submitted that it was highly unlikely that the assailant used two large knives and that it was most likely that Jake took with him the knife that Wade had already used and had had with him in the car. The Crown also pointed out that in light of Dr Duflou's evidence, infliction of the stab wounds would likely have left blood on the assailant and that the non-assailant, whether Wade or Jake, would have seen blood on the other and probably guessed what had occurred. If the stabbing had not occurred pursuant to a joint criminal enterprise, it was unlikely, the Crown submitted, that the applicants would in these circumstances have spent the next two and a half hours together.
3. The Crown submitted that the obvious point of the applicants' chase of the Camry was to "get at the deceased" and Wade would have been focussed on what George was doing after the two cars stopped.
4. The Crown pointed out that it was not its case that there was "a meeting of the minds" when the cars stopped in Mulligan St. Rather, its case was that the joint criminal enterprise had commenced when George was first wounded by Wade in Dashmere St. It also referred to the evidence of the local resident who saw two men (Wade and Jake) who chased another (George) in Dashmere St and then stopped for a brief discussion before returning to the Lexus.
5. The Crown submitted that there was "absolutely no reason for Mr Tortell to stab the deceased with a 'savagery' which 'went well beyond what was intended by Mr Martinez'". It referred in particular to Jake's absence of motive to harm George, and Wade's strong motive to do so. Further, it said that the limited nature of Wade's stabbing of George in Dashmere St, in front of a number of witnesses, said little about his intention after the chase into Mulligan St.
[19]
Legal Principles
The following authorities are of particular relevance to the issue raised by this ground of appeal.
In Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 the appellant drove the victim and his two co-accused, who included his brother, to a remote place. The victim died as a result of a brutal assault, probably by the appellant's brother. The appellant's case at trial was conducted on the basis that he was not present when the assault occurred and that all that he knew beforehand was that his brother intended to assault the victim. The appellant was convicted of murder but it was common ground in the Court of Appeal of Queensland that manslaughter should have been left to the jury as a possible verdict. The Court of Appeal however held that the appeal should be dismissed on the ground that no substantial miscarriage of justice had occurred. The High Court reversed this decision.
The majority of the High Court (Gleeson CJ and Gummow and Callinan JJ) held that a rational jury, properly instructed, could have failed to reach the state of satisfaction necessary for a conviction of murder, thereby rendering the possibility of manslaughter open on the evidence. In doing so, Gleeson CJ and Gummow J referred with approval to the following observation, cited in R v Jackson [1993] 4 SCR 573 at 593, of Lord Tucker in Bullard v The Queen [1957] AC 635 at 644:
"Every man on trial for murder has the right to have the issue of manslaughter left to the jury if there is any evidence upon which such a verdict can be given. To deprive him of this right must of necessity constitute a grave miscarriage of justice and it is idle to speculate what verdict the jury would have reached."
In Gilbert, Gleeson CJ and Gummow J observed at [13]-[17] that whilst courts assume that juries understand and follow directions given by a trial judge, it should not be assumed that juries' decision-making is "unaffected by matters of possible prejudice". Thus, their Honours indicated that an appellate court must not "assume, on the part of the jury, a mechanistic approach to the task of fact-finding, divorced from a consideration of the consequences". Whilst a jury may "hesitate to acquit" it may be "glad to take a middle course which is offered to them" by the availability of a manslaughter verdict.
In Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64, the appellant remained in a car whilst his co-accused got out of the car, walked into a workshop and shot and killed two men. The appellant and his co-accused were convicted of murder.
[20]
Determination
It was open to the jury not to be satisfied beyond reasonable doubt as to the identity of the assailant. In the case of Wade, his arguable lack of opportunity to assail George in Garnet St was an obvious basis for that lack of satisfaction. The evidence clearly established that around the time of George's death, Wade was driving the Lexus. If he had an opportunity to kill George, it was a very limited one indeed.
Even allowing for a 90 second period between the two appearances of the Lexus driven by him on the CCTV cameras, it seems unlikely that within that period he could have driven along Gambier St to Garnet St, got out of the vehicle, stabbed George eight times, returned to the vehicle and driven it from Garnet St back along Gambier St to its intersection with Mulligan St. Although Wade had a strong motive to attack George, and such an attack would arguably have been consistent with the preceding events in Dashmere and Mulligan Streets, it is improbable, although possible, that Wade had the opportunity to do so.
On the other hand, the evidence at least arguably pointed to Jake as the assailant. It was he who chased George along Mulligan St, seemingly into Lofty Crescent, and had the opportunity to stab George at 8 Garnet St. The DNA evidence indicated that he had George's blood on his clothing and that his DNA was on George's finger nail.
Nevertheless, as Jake's counsel submitted on appeal, there were reasons why the jury might not have been satisfied beyond reasonable doubt that Jake was the assailant. These reasons were:
1. There was no evidence of any prior animosity between Jake and George, whereas there was such animosity between Wade and George.
2. On the evidence, the only possible motive that Jake therefore had to kill George was that he may have wished to give effect to the animosity of his friend Wade towards George. The jury may however have taken the view that a savage attack on George involving eight stab wounds was an extreme and therefore unlikely manner for Jake to achieve that vindication, particularly when there was no evidence that Jake knew of that animosity until at most a few minutes earlier (that is, when the altercation occurred in Dashmere St).
3. It was Wade rather than Jake who showed aggression towards George in the period leading up to George's death and it was Wade who wounded George with a knife in Dashmere St, who drove the Lexus in apparent pursuit of George in the Camry, who was, on Nicole's evidence, still in possession of a knife when driving, who swung the Lexus in front of the Camry to cause it to stop and who, again on the evidence of Nicole, was seen to have a knife in his hand when he got out of the Lexus in Mulligan St.
4. There was no direct evidence that Jake was at any time in possession of a knife.
5. The evidence that Jake was the assailant was purely circumstantial, there being no direct evidence of the events that occurred in Garnet St.
6. The Crown did not exclude beyond reasonable doubt the possibility that Wade had the opportunity to assail George. The CCTV camera evidence (see [64] above) indicated that there was about a minute or perhaps a minute and a half between the Lexus driven by Wade turning into Gambier St and then returning along Gambier St to Mulligan St. It is possible that Wade stabbed George in that period.
[21]
Ground 2: Failing to give appropriate directions concerning consciousness of guilt evidence
In his closing address, the Crown referred to Jade's evidence of what Wade said to her on 21 May 2015 (see [27] above) as a threat, made because Wade "knew very well what his role was in the killing of the deceased" (see [35] above). He also made it clear to the jury that Wade's alleged statement on 14 February 2015 to Krystal to "keep [her] mouth shut" was in the same category (at [36] above). Later in his address, he referred again to the 21 May 2015 statement and suggested that the jury could use it as assisting to prove either or both charges, that is, the murder and wounding counts on the indictment.
In her summing up, the trial judge instructed the jury that if it accepted Jade's evidence as to what Wade said on 21 May 2015 it could use it as evidence that he "had a consciousness of his own guilt at that time in relation to the events of 14 February" (see [41] above).
In the absence of the jury, the Crown submitted that fuller directions should be given concerning the evidence relied on as manifesting a consciousness of guilt. Wade's counsel did not make any relevant submission and her Honour did not give the jury any further directions on that topic.
On appeal, Wade submitted that a full direction in accordance with Edwards should have been given.
[22]
Relevant legal principles
Edwards was concerned with lies allegedly told by the accused when giving evidence at his trial. The majority made the following observations (at 210-1):
"A bare direction that consciousness of guilt is required does not provide sufficient guidance as to what matters indicate its presence. Unexplained, such a direction allows the jury to decide, in the light of all the evidence, that a lie was told with a consciousness of guilt and then to use that finding to corroborate some part of the evidence that led to the finding of a consciousness of guilt.
A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg. v. Lucas (Ruth), because of 'a realization of guilt and a fear of the truth'. Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation (for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect".
[23]
Ground 3: Failing to give appropriate directions concerning the absence of evidence from Wade at the trial
Jake gave evidence at the trial but Wade did not. In her summing up, the trial judge made two references as follows to the absence of evidence from Wade. In the first, quoted at [47] above, her Honour instructed the jury that it was not to draw any adverse inference "whatsoever" from Wade's exercise of his right to silence. Her Honour repeated that later, in the passage quoted at [48] above.
Wade's trial counsel did not request any further direction and, on appeal, the Crown relied on r 4 of the Criminal Appeal Rules to contend that Wade should be precluded from complaining of the absence of any further direction.
In Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25, the Crown tendered at trial the transcript of a police interview in which the accused denied the allegations against him, but the accused did not give evidence. The trial judge inappropriately suggested to the jury that the fact that the accused did not give evidence was a reason to find him guilty of the offence charged. The Court found that the direction contravened s 20(2) of the Evidence Act 1995 (NSW) which is in the following terms:
The judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned.
Further, the majority of four judges stated the following at [51]:
"In the course of argument of the present matters it was suggested that if a judge said nothing to the jury about the fact that an accused had not given evidence, the jury may use the accused's silence in court to his or her detriment. Plainly that is so. It follows that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused's silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt. It by no means follows, however, that the judge should go on to comment on the way in which the jury might use the fact that the accused did not give evidence."
[24]
Ground 4: Whether Wade's conviction on the statutory alternative to Count 2 was unreasonable, particularly in light of Jake's acquittal on Count 2
[25]
Ground 5: Failing to give an appropriate direction concerning the meaning of "in company" on Count 2
Wade was convicted on the statutory alternative to Count 2, namely, reckless wounding "in company". The trial judge did not give any directions to the jury as to the meaning of "in company" other than to say, after referring to that element of the offence, "obviously the company would be Jake Tortell" (see [52] above).
As the Crown accepted on appeal, an offence is only committed "in company" if the person in whose company the offence was committed was physically present and shared a common purpose with the accused to commit that offence (R v Button (2002) 54 NSWLR 455; [2002] NSWCCA 159 at [120]; White v The Queen (2016) 261 A Crim R 302; [2016] NSWCCA 190 at [15] and [82]-[91]). In this context a person shares a common purpose with the principal offender if the person is a party to a joint criminal enterprise with the principal offender to commit the offence or if the person, being present when the crime is committed, aids and abets its commission by assisting or encouraging the principal offender. The trial judge's instruction to the jury at [52] above implied that the presence of Jake when Wade committed the wounding was sufficient. This was incorrect. Accordingly Wade's conviction for wounding "in company" must be quashed. The misdirections identified in Ground 2 and, arguably, 3 provide additional reasons for taking that course.
Wade also submits on appeal that his conviction of that offence should be found to have been unreasonable, with the consequence that no new trial should be ordered and that he should be acquitted of the offence. He submits in this regard that a conclusion of unreasonableness is the consequence of the jury's acquittal of Jake on Count 2 and its statutory alternative.
Wade submits, in my view correctly, that, bearing in mind that the Crown did not contend that Jake himself wounded George, the jury's acquittal of Jake on Count 2 must mean that it was not satisfied that Jake was "in company" with Wade for the purposes of Count 2. The acquittal cannot be attributed to any inadequacy of the trial judge's directions concerning Count 2 against Jake because her Honour properly instructed the jury, in writing and orally, that to find Jake guilty on Count 2, it would have to find that Jake was "present, encouraging and assisting" Wade when he wounded George, the Crown not having alleged that the wounding occurred pursuant to a joint criminal enterprise. The jury verdicts at the joint trial thus conclusively determined that Jake was not acting "in company" with Wade at the time of the wounding. It follows that they also established the corollary, that Wade was not "in company" with Jake. The conviction of Wade of reckless wounding in company was therefore unreasonable. As a result Wade cannot be retried for an offence involving the "in company" element and a verdict of acquittal should be entered.
[26]
Orders
For the above reasons, I propose the following orders:
1. Grant the appellants leave to appeal to the extent necessary.
2. Allow the appeals.
3. Quash both the appellants' convictions of murder (Count 1 of the Indictments).
4. Direct retrials of the appellants on the charges of murder on which they were convicted.
5. Quash Wade Martinez's conviction of the offence of reckless wounding in company (the statutory alternative to Count 2 in the Indictment against him).
6. Acquit Wade Martinez of that offence of reckless wounding in company.
7. The matter is listed for mention in the Supreme Court Arraignments List on 12 July 2019 or such other date as directed by the Criminal List Judge.
R A HULME J: I agree with Macfarlan JA.
ADAMSON J: I agree with Macfarlan JA.
[27]
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Decision last updated: 18 December 2019
Krystal gave evidence that at some point of time after the Lexus stopped the Camry in Mulligan St, Wade spoke to her on her mobile and told her to "keep [her] mouth shut". Evidence of mobile phone calls showed that Wade's phone made a 30 second call to Krystal's phone at 10:14pm.
CCTV camera evidence showed two cars moving at speed along Mulligan St towards Barrington St at the time these events occurred. The Crown contended that this was the Lexus following the Camry. About 50 seconds later the same camera recorded a car, which the Crown alleged was the Lexus, returning back along Mulligan St and turning right into Gambier St (which led to Garnet St which is parallel to Mulligan St and behind Lofty Crescent).
The same camera filmed a car, which the Crown alleged was the Lexus, coming back along Gambier St (from the direction of Garnet St) and turning right into Mulligan St about 60-70 seconds later. The Crown contended that Wade, in the Lexus, had picked up Jake in Garnet St before returning along Gambier St. It also argued that the detection of mobile phone signals from Wade and Jake's phones suggested that they were together for the following two and a half hours.
Later, he again linked the evidence of this incident to that of Wade's 10:14pm telephone call to Krystal on the evening of 14 February 2015:
"It is the case that [Jade's] evidence also indicates [Wade] takes the phone and wants to have a conversation with somebody who is ringing Jade at that stage. Just have a look at the footage. Look at the evidence of Jade and you might just conclude that this why [sic] he did use the words, 'Make sure you keep your mouth shut, I'm watching.' You need to consider, with this piece of evidence, whether it assists you in your determination whether it proves the charge of murder, because there are two allegations here.
…
So, this comment, 'Make sure you keep your mouth shut, I'm watching,' you will need to consider whether this is something that you take into account in relation to both counts or one count alone. The prosecution submission to you is the concern of this gentleman at this time would have been in relation to the suspicion that he was involved in the death of Mr Garmo and that is an inference you would draw from the comments he is making, 'Make sure you keep your mouth shut, I'm watching.' No doubt there will be defence submissions to the contrary and her Honour will give you directions about that."
The Crown concluded his address as follows:
"It is alleged in relation to both accused on Count 1 that on the 14th day of February 2015 at Bossley Park in the State of New South Waled they did murder Gewargis Garmo. It is submitted by the prosecution that ultimately the evidence establishes that it was Jake Tortell who was the stabber, the murderer. It is a submitted [sic], however, that both men were acting together as a party of the joint crime, that both were chasing after him, that both wanted to get this man, Mr Garmo, and one of them got him. On the basis of the way in which the law operates that they were contacting jointly [sic], that both are therefore, if you are satisfied beyond reasonable doubt that they were, that both are liable for the acts of [the] other in these circumstances. In other words, Mr Tortell stabbed this man, Mr Garmo and did so in circumstances where he was in effect acting, Mr Tortell was acting for Mr Martinez. Mr Martinez was nearby, if you accept that Mr Tortell was the stabber. In fact the evidence would suggest very nearby, within seconds as it [sic] turned into Gambier Street and then would have gone into Garnet Street and then picked up the gentleman, that is Mr Tortell afterwards. There is less chance that Mr Martinez was the stabber. But at the end of the day if you are not satisfied which one was the prosecution submission to you is, it does not matter as each is liable for the acts of the other. So it is being submitted in this trial beyond reasonable doubt that the charge of murder has been proved against both Wade Martinez and against Jake Tortell."
Her Honour added in relation to Wade's right to silence:
"So we go to the defence case in relation to Mr Martinez. As I have already said to you, both accused have absolute right to silence. No adverse inference whatsoever, I must emphasise this, can be drawn from the fact that Mr Martinez c[h]ose to exercise his right and not to give evidence before you. It is crucial."
Her Honour said the following concerning the possibility of the jury returning a verdict of not guilty of murder but guilty of manslaughter:
"There is only one count in the indictment against each of the accused relating to the death of Mr Garmo, namely, that the accused in question murdered him. But I have to tell you that, as a matter of law, it is always open to a jury in a murder trial to bring in a verdict of not guilty of murder but guilty of manslaughter.
In the circumstances of this trial, in the questions you have been given, there is one basis upon which you could do this, namely, if you found that the person who inflicted the fatal stab wounds on Mr Garmo, did not intend to kill or really seriously injure him, maybe because of intoxication, but that it was an unlawful and dangerous act, which I will be saying more to you about tomorrow. In that event, as the questions tell you, you would be entitled to find person not guilty of murder but guilty of manslaughter.
Just assuming for the moment that it was Jake Tortell you made that finding in relation to and you had found joint criminal enterprise, it goes without saying that the other accused could not be guilty of a more serious offence than the person who actually committed it. But, as you will see, there is only one charge in the indictment, namely murder."
Her Honour said the following concerning the meaning of "grievous bodily harm":
"The actual section in the Crimes Act refers to 'grievous bodily harm' and I think counsel have referred to that phrase a few times, but it means exactly the same as really serious injury. Really serious injury is a more meaningful phrase somehow than grievous bodily harm. So we come then to what does amount to really serious injury. By and large the words mean exactly what they say. It doesn't have to be a life-threatening injury or even a permanent one to be a really serious injury. But obviously it has to be much more than a minor injury. It will be for you as the judges of the facts to determine what constitutes really serious injury. It is of course for the Crown to prove that this was the perpetrator's intention at the time of inflicting the fatal injuries."
Her Honour went on to say:
"… if you have … found that there was a joint criminal enterprise between them to kill or really seriously injure Mr Garmo then it matters not which of them did in fact inflict those injuries, both of them would be guilty of the same offence".
As to the "in company" element of the Count 2 offence of wounding with intent to cause grievous bodily harm, her Honour simply said that if "the accused in question, who was clearly Wade Martinez, was in company at the time… obviously the company would be Jake Tortell". In relation to Count 2 against Jake her Honour instructed the jury that the Crown did not rely upon the joint criminal enterprise alleged in relation to the murder charge but asserted that at the time of the wounding Jake was "present, encouraging and assisting Wade Martinez in the commission of the offence".
In relation to the conversation between Jade and Wade at the shopping centre on 21 May 2015, her Honour instructed the jury as follows:
"[Jade] gave evidence that in May of 2015 she bumped by chance into Mr Martinez when they were out shopping, and he said, and this is quoting her evidence: 'Make sure you keep your mouth shut. I'm watching'.
Now I have to say just a couple of things as a matter of law about this evidence. First of all, it really goes without saying that this evidence is only available against Mr Martinez. Mr Tortell was nowhere near, so it cannot be used as any evidence in the case against Mr Tortell.
The second thing is that if you accept that this was said by Mr Martinez, and that it related to the events of 14 February, then you are entitled to use it as evidence of the proposition that the accused, Mr Martinez, had a consciousness of his own guilt at that time in relation to the events of 14 February. You don't have to, but that is … an inference that you are entitled to draw from that evidence if, as I said, you accept that it was said, and that it related to the events of 14 February that it denoted consciousness of guilt on his part."
In the absence of the jury the Crown suggested to the trial judge that she give a fuller direction concerning consciousness of guilt (by inference, the directions identified in Edwards v The Queen (1993) 178 CLR 193; [1992] HCA 63) and distinguish between the two alleged threats. Counsel for Wade did not however seek any further directions and her Honour did not give any.
Her Honour made the following observations to the jury concerning Nicole's evidence:
"Now as you will recall, members of the jury, she was extremely vague in relation to a number of matters and she initially said, you will recall, that all of this started at about 5 o'clock in the evening. In other words, she was out by quite a number of hours in relation to her timing. She eventually, eventually agreed that she must be wrong on the timing. But it does show it that she was pretty vague about timing. That is an illustration you might think of an honest witness, it is a matter for you, but just simply being mistaken about observation of things that happened under stress and that happened very quickly and unexpectedly."
Counsel then referred to relevant authority in the High Court and submitted that r 4 of the Criminal Appeal Rules (NSW) was inapplicable, notwithstanding that Wade's trial counsel did not submit that the possibility of a manslaughter verdict should be left to the jury upon the additional basis referred to in [57] above.
In written submissions in reply, Wade's counsel attacked Nicole's evidence that she had seen Wade with a knife when he got out of the car in Mulligan St. Wade's counsel pointed in this regard to a number of unsatisfactory features of Nicole's evidence, including that she gave this evidence in cross examination without having earlier mentioned it in her examination in chief.
In relation to the last listed matter, counsel submitted that the CCTV evidence demonstrated that there was more than a minute, perhaps nearer to one and a half minutes, from when the Lexus driven by Wade turned right from Mulligan St into Gambier St and then reappeared turning right from Gambier St back into Mulligan St and that this would have been sufficient time for Wade to inflict the fatal stab wounds on George in or near Garnet St, into which Gambier St led.
The High Court held that the appellant's conviction should be set aside on the ground that the jury was deprived of the opportunity to consider the intermediate position of manslaughter, notwithstanding that the appellant's counsel opposed the trial judge giving any direction to the jury as to manslaughter. The Court held that there had been a viable case of manslaughter to be left to the jury. Gleeson CJ and Callinan J observed at [27] that:
"Gilbert decides that it is not an answer to the appellant's argument to point out that, since the jury were properly (albeit conservatively) instructed on the elements of murder, and since they convicted the appellant of murder, there is, on that account alone, no miscarriage of justice. … The jury were wrongly deprived of an opportunity to consider an intermediate position."
Hayne J (with whom Gummow J relevantly agreed) observed at [128] that if the jury concluded that "the common purpose of the parties extended to the pointing of a loaded and cocked firearm at one or more of those in the workshop … and if the prosecution failed to establish its principal contention, that the appellant had contemplated the deliberate use of the weapon to kill or do grievous bodily harm, the appellant would, nonetheless, be guilty of manslaughter by unlawful and dangerous act".
In R v Nguyen (2010) 242 CLR 491; [2010] HCA 38, the High Court set aside the appellant's conviction for murder because the possibility of an alternative verdict of manslaughter on the basis identified by the High Court was not left to the jury, even though, as in the present case, the possibility of a manslaughter verdict on different basis had been left. The Court stated at [49]:
"If [the appellant] was party to an agreement, or had a contemplation, or provided assistance directed to some lesser assault than one intended to kill, it would have been open to the jury to conclude that, although he was not guilty of the charge of attempted murder, a verdict of manslaughter should be returned in respect of the count charging him with murder. The trial judge's directions did not admit of that possibility".
In Nguyen, as in Gillard, the Crown contended inter alia that there had been an extended joint criminal enterprise. That it did not do so in the present case does not affect the relevance to the present case of the principles concerning alternative verdicts of manslaughter that the High Court stated in those cases.
In James v The Queen (2014) 253 CLR 475; [2014] HCA 6, the Crown alleged that the appellant had deliberately struck another person with a motor vehicle with the intention of causing him serious injury. The jury was directed to consider the offence with which the appellant was charged in the indictment, together with a statutory alternative count. The appellant submitted on appeal that a further alternative count should have been left for the jury's consideration.
The High Court (Gageler J dissenting) rejected that contention, holding that the principles stated in Gilbert and Gillard concerning alternative verdicts of manslaughter in murder cases were not to be applied outside that context. In dealing with the principles applicable in other contexts, the majority made the following presently relevant observations (at [31]-[32]):
"Discharge of the trial judge's role in ensuring fairness to the accused requires that the jury receives instruction on any defence or partial defence, provided there is material raising it, regardless of the tactical decisions of counsel. Among other things, this recognises the forensic difficulty of relying on inconsistent defences. The tactical decision not to rely on a defence or partial defence, whether objectively sound or otherwise, does not relieve the trial judge of the obligation to instruct the jury on how on a view of the facts a defence or partial defence arises.
Of course, forensic considerations may equally be against defence counsel inviting the jury to consider the accused's guilt of a lesser offence. The submission may be inconsistent with the tenor of the defence case. Nonetheless fairness to the accused may require that the jury be directed of the availability of the alternative verdict. In such a case the failure to do so would be a miscarriage of justice."
In Restricted Decision [2018] NSWCCA 246, the Crown alleged that the appellants had been parties to a joint criminal enterprise to kill a victim or cause him grievous bodily harm. The victim was in fact killed. Simpson AJA (with the concurrence and Bellew and Wilson JJ) observed:
"78 The duty of a trial judge in a criminal trial is to direct the jury in respect of the issues as they have been litigated by the parties: Alford v Magee (1952) 85 CLR 437; [1952] HCA 3. There is, however, an exception to that rule. It cannot now be doubted that the duty of a trial judge extends to directing the jury with respect to any defence or alternative verdict that is reasonably open on the evidence, notwithstanding that it has not been raised or relied on by the accused person.
…
80 The question has most frequently arisen in relation to charges of murder, where an alternative verdict of manslaughter might be available whether by reason of a defence such as self-defence or provocation, or because the evidence is susceptible of a verdict of manslaughter by criminal negligence or unlawful and dangerous act.
81 As stated in various of the decisions [to which her Honour referred, including Gilbert and Gillard], the test is whether there is evidence that could support the defence or alternative verdict; that is, whether a case for an alternative verdict based on the evidence is viable."
In summary and taking these authorities into account, the following principles are relevant to the present case:
1. A person commits murder when they kill a person with intent to kill or inflict grievous bodily harm or with reckless indifference to human life (s 18 of the Crimes Act).
2. Manslaughter occurs inter alia when a person causes the death of another by an intentional unlawful and dangerous act carrying with it an appreciable risk of serious injury (Wilson v The Queen (1992) 174 CLR 313 at 332-3; [1992] HCA 31). Thus, a person will be guilty of manslaughter if they kill a person as a result of the accused's act which the accused intended to inflict harm on the victim which is serious but which falls short of grievous bodily harm.
3. The effect of the doctrine of joint criminal enterprise is that where a crime is committed pursuant to an agreement, responsibility for the crime attaches to all parties to the agreement who participate in some way in furtherance of the agreement, regardless of the particular role each party plays in its execution (Huynh v The Queen [2013] HCA 6; (2013) 87 ALJR 434 at [22]). In the present case, the Crown did not rely upon the doctrine of extended joint criminal enterprise, which is concerned with situations where the crime committed differs from that which the parties agreed to commit (see Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30 at [1]).
4. The possibility of returning a verdict of manslaughter should be left to the jury if the verdict is "reasonably open on the evidence", that is, where there is any evidence upon which a verdict of manslaughter could rationally be given (Gilbert at [68] above).
5. It is no answer to a contention on appeal that the possibility of a verdict of manslaughter should have been left to the jury that the jury convicted the appellant of murder and must therefore have been satisfied that the appellant intended to kill or inflict grievous bodily harm on the victim, or was party to and participated in an agreement for that to occur (Gillard at [71] above).
6. The absence of a request by an accused's counsel for the possibility of a manslaughter verdict to be left to the jury, or even opposition to that occurring, does not relieve the trial judge of the duty to take that course if such a verdict is reasonably open on the evidence (James v The Queen and Restricted Decision at [76] and [77] above).
7. That the trial judge has left to the jury the possibility of returning a verdict of manslaughter on a particular basis does not preclude a complaint on appeal that the trial judge should have left it to the jury on some other basis (Nguyen at [73] above).
In the event that the jury was not satisfied beyond reasonable doubt of the identity of the assailant, which I have just indicated was a possible view, it had to consider whether Wade and Jake agreed to kill George or inflict grievous bodily harm on him. There were reasons as follows why the jury might not have been satisfied beyond reasonable doubt that Wade and Jake made such an agreement:
1. The jury might have taken the view that the limited harm inflicted by Wade during the altercation in Dashmere St, when Wade arguably had the opportunity to inflict greater harm, suggested that any agreement he made with Jake, then or in the following minutes, may well have related to a lesser degree of harm than grievous bodily harm.
2. The jury might have had a reasonable doubt as to whether Wade knew that George was in the Camry when he drove the Lexus and forced the Camry to stop. It is possible that, instead, Wade did this to obtain information from the occupants of the Camry as to where George was.
3. The jury may not have been satisfied that Wade gave the knife he had had at Dashmere St to Jake or that he knew that Jake was in possession of another knife. As submitted on behalf of Wade, the pathologist's evidence raised the possibility that a different knife to that used by Wade in Dashmere St was used to kill George.
4. Wade and Jake had only minimal opportunities to expressly or impliedly agree to kill George or inflict grievous bodily harm on him.
5. If the jury was in doubt as to whether Jake inflicted the fatal injuries on George, the basis for finding that Jake was a party to an agreement with Wade to kill George or inflict grievous bodily harm on him was very limited. In that circumstance, the basis for an inference that he was party to such an agreement would be limited to his conduct in Dashmere St, his participation in the car chase in the Lexus and to his running after George in Mulligan St, as well as a less than certain view that he assailed George.
6. The savagery of the stabbing of George arguably went beyond the level of violence that the earlier events of the evening suggested that Wade or Jake, or either, contemplated would be inflicted on George.
The Crown responded by pointing to the unlikelihood of various of these possibilities. For example, it submitted that:
1. It was highly likely that only one knife was used in the attack on George in Garnet St, and that it was the same knife as Wade had used in Dashmere St.
2. Dr Duflou's evidence was that the infliction of the stab wounds on George would likely have left blood on the assailant and that this would have been apparent to the non-assailant when Wade and Jake came together shortly after the stabbing. It is unlikely that, if the stabbing had not occurred pursuant to a joint criminal enterprise to kill or inflict grievous bodily harm on George, Wade and Jake would have remained together for the next two and a half hours, as the Crown said they did.
3. There was evidence from a local resident that when Wade and Jake chased George in Dashmere St, they stopped for a brief discussion before returning to the Lexus. They had at least had the opportunity to make the alleged agreement then.
These arguments have force but they raise factual questions which were for the jury, not this Court, to assess and to determine. They are not of such strength that they demonstrate to this Court that it was not open to the jury to conclude that the Crown had not excluded as a reasonable possibility that any agreement between Wade and Jake was for the infliction of a lower level of violence on George than grievous bodily harm. If the jury had so concluded, it would have been entitled to return verdicts of manslaughter. Verdicts of manslaughter were therefore open on the evidence before the jury. The possibility of returning them, on the basis to which I have referred, ought to have been left to the jury. This is so notwithstanding that there was no request by counsel to that effect.
Wade and Jake have accordingly established that an error in the conduct of the trial occurred in the manner asserted in Ground 1. The Crown indicated that it did not rely upon r 4 of the Criminal Appeal Rules to argue that the appellants were precluded from taking the point on appeal, nor on the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) to contend that the convictions should stand notwithstanding the error that has been established. Wade and Jake's murder convictions must therefore be quashed and new trials ordered.
In Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28, the majority of the High Court accepted the authority of Edwards but stated that "rigid prescriptive rules as to when and in what precise terms an Edwards-type direction should be given cannot be comprehensively stated" (at [15]). Their Honours continued (at [16]):
"There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt. As a general rule, however, an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards, 'the accused knew that the truth ... would implicate him in [the commission of] the offence' and if, in fact, the lie in question is capable of bearing that character. (The words in italics are ours and, for the sake of clarity, should be included in the statement of principle.)"
In that case, the Crown had not suggested that any answers given in evidence were lies, told out of a consciousness of guilt. As a result, the majority of the Court considered that it was "unnecessary, indeed undesirable" that an Edwards-type direction be given (at [20]). In the present case, the Crown clearly relied upon Wade's alleged threats as evidencing a consciousness of guilt on his part.
In R v Cook [2004] NSWCCA 52, the Court was concerned with evidence of flight which the Crown contended was evidence of the accused's consciousness of his guilt. Simpson J (with the concurrence of Ipp JA and Adams J) referred to Edwards, Zoneff and other authorities, and observed at [25] that:
"[t]he principles developed in relation to evidence of lies are readily adaptable to the circumstance where the Crown tenders evidence of flight said to be indicative of a consciousness of guilt".
The same observation applies to other types of post-offence conduct relied upon as evidencing a consciousness of guilt, such as an accused's silence in response to an allegation which he or she might reasonably be expected to deny, the destruction of evidence and attempts to influence the evidence of witnesses (McKey v The Queen (2012) 219 A Crim R 227; [2012] NSWCCA 1 at [26] per Latham J, Whealey JA and Hislop J agreeing). Threats, such as those alleged in the present case, are in the same category.
In Cook, Simpson J continued as follows (at [50]):
"Where evidence of flight is relied upon as evidence of a consciousness of guilt, the principles of law applicable to directions which must be given to the jury are, in my view, identical to those which govern the directions to be given to a jury where lies are relied upon as such evidence. Those principles are stated in Edwards, Zoneff and Hyde. The conventional direction in relation to lies drawn from those, and other cases, requires a degree of adaptation in order to be accommodated to evidence of flight relied upon by the Crown for the same purpose. In particular, it is necessary, in my opinion, to draw attention to the circumstance that an accused person may behave in a way suggestive of a recognition of guilt for reasons other than such recognition of guilt - for example, fear of being unjustly accused. It is also necessary to point out to the jury that the consciousness must be a consciousness of guilt of the specific offence charged, and not, for example, of some other offence or some other discreditable conduct. The flight (or lie) may only be used as evidence of a consciousness of guilt of the offence charged where the jury is satisfied that it points unequivocally to consciousness of guilt of that offence and not some other offence or discreditable conduct."
In R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, the Crown relied on post-offence concealment and lies as supportive of the Crown's contention that the respondent had murdered his wife. The Court referred with approval to the statement of Major J in R v White [1998] 2 SCR 72 at [27] that:
"As a general rule, it will be for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct of the accused is related to the crime before them rather than to some other culpable act. It is also within the province of the jury to consider how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury's exclusive fact-finding role."
The Court in Baden-Clay then observed at [74] that there may be cases where an accused goes to such lengths "to conceal the death or to distance himself or herself from it as to provide a basis on which the jury might conclude that the accused had committed an extremely serious crime" and not therefore only some lesser offence with which the conduct is otherwise consistent. The Court added that "[t]here is [thus] no hard and fast rule that evidence of post-offence concealment and lies is always intractably neutral as between murder and manslaughter" (at [74]). Accordingly in that case it was open to the jury to regard the respondent's acts of concealment as not likely "to have been engendered by a consciousness of having unintentionally killed his wife" (at [76]) (emphasis added). Likewise, in the present case, it was open to the jury, if it accepted the evidence of threats by Wade, to take the view that the threats, designed to ensure silence, were unlikely to have related to Wade's relatively minor wounding of George in Dashmere St which occurred in the presence of a number of people, but rather to the subsequent killing of George.
On appeal, Wade's counsel contended that the jury should, in light of Edwards and subsequent authorities, have been given directions to the following effect:
1. That the Crown contended that the alleged threats were evidence of Wade's consciousness of his guilt of the offence of murder.
2. That if the jury was satisfied that Wade made the alleged threats, it could take them into account as evidence of Wade's guilt but not, as the Crown did not so contend, as themselves proving that guilt.
3. That the evidence could only be used in this way if the jury was satisfied that there was no explanation for the threats consistent with Wade's innocence and that the threats were therefore made because he feared that the telling of the truth would implicate him in one or other of the offences with which he was charged.
4. That the jury must consider whether the alleged threats may have been made for any of a number of other possible reasons which would not have reflected a consciousness of guilt.
5. That if the jury considered that one or both threats revealed a consciousness of guilt, it must consider carefully whether that state of mind related to both offences and, if not, to which particular offence it related.
Wade's counsel identified the following possible fears, not including one of a well-founded implication in George's murder, that might have led Wade to make the threats:
1. that he might be unjustly accused of causing George's death;
2. that Jade or Krystal's account might reveal his involvement in discreditable conduct, such as pursuing the Camry and forcing it to stop;
3. that their accounts might reveal that his friend Jake killed George;
4. that their accounts might assist in proving his assault of George on Dashmere St rather than any involvement in George's death;
5. that their accounts might reveal that he was party to a joint criminal enterprise with Jake to cause a lesser degree of harm to George than grievous bodily harm;
6. that their accounts might reveal some other culpability on his part, such as being an accessory after the fact (for example in driving Jake away from the scene of the crime); or
7. a combination of one or more of the above.
The Crown's response to these contentions on appeal was essentially limited to the following statement at [84] in its Written Submissions:
"For a trial Judge, in those circumstances [where through his counsel Wade had denied the threats], and contrary to the submissions of trial counsel, then to embark on the type of extensive 'consciousness of guilt' direction which is to be found in the Criminal Trials Bench Book at [2-965], detailing all the reasons why the threat[s] might not have evinced a consciousness of guilt would simply have emphasised the suggested threat[s]. Counsel had the opportunity to raise the issue after the Crown Prosecutor did and declined to do so."
Despite this submissions, the Crown indicated in oral argument, as it did in relation to Ground 1, that it did not rely on r 4 of the Criminal Appeal Rules in relation to Count 2. As a result, it is not significant that Wade's trial counsel did not complain about the directions not being given. In any event, the Crown itself clearly raised the need for more extensive consciousness of guilt directions with the trial judge.
This being the case, the Crown's response to Ground 2 referred to in [101] above, was essentially limited to the proposition that giving the directions "would simply have emphasised the suggested threat". Whilst Zoneff makes it clear that there is no rigid rule as to when and in what terms directions of the type described in Edwards should be given, the general position established by Edwards and subsequent cases is that, in the absence of reasons to do otherwise, those directions should be given. The Crown's suggested reason that the direction "would simply have emphasised the suggested threat" cannot of itself be sufficient. Acceptance of it would lead to the Edwards directions not being given in many, if not most, cases, contrary to the clear intent of the reasoning in Edwards.
There are no features of the present case that justified the trial judge declining to give Edwards directions. In fact, the present was one in which such directions were particularly apt. There was a real danger that, without appropriate directions, the jury might simply have reasoned from the threats to a conclusion of guilt without considering the nature of the offence or offences to which the threats might have related and, importantly, whether there might have been any innocent explanations, such as identified at [100] above, for the making of the threats.
As a result, directions to the effect of those identified by Wade's counsel should have been given at trial. The failure of this to occur fundamentally affected the conduct of the trial. Moreover, as in relation to Ground 1, the Crown announced during oral argument that it did not rely on the proviso to s 6 of the Criminal Appeal Act to assert that even if this ground was upheld, no substantial injustice occurred and the appeal should be dismissed.
In these circumstances, Ground 2 should be upheld and both Wade's convictions and Jake's conviction should be quashed with retrials to be ordered.
The majority thus identified the following four aspects of a direction that "it will almost always be desirable" to give to the jury concerning an "accused's silence in court", namely, that such silence:
1. is not evidence against the accused;
2. does not constitute an admission by the accused;
3. may not be used to fill gaps in the evidence tendered by the prosecution; and
4. may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt.
Counsel in the present case contended that the trial judge's directions covered, at most, the first of these matters and that a full direction, conveying all four matters, should have been given. The Crown did not contest this proposition but it is arguable that the directions sufficiently covered the second matter as well as the first.
Whilst R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20 indicates that a full Azzopardi direction does not have to be given in every case, I consider that in the present case such a direction was "desirable", to use the word used in Azzopardi in this context, essentially for the reasons to the following effect identified by Wade's counsel.
First, Wade's co-accused, Jake, gave evidence and denied the principal aspects of the Crown's case against him. The contrast between Jake's election to take this course and Wade's election not to do so would have been stark to the jury. The existence of the contrast accentuated the need for directions to be given to preclude the jury drawing any inference adverse to Wade. In my view the ways in which the jury was not entitled to use Wade's silence against him, as identified in the Azzopardi direction, needed to be spelled out.
Secondly, the need for such a direction was further emphasised by the directions given to the jury that it could use the evidence of Wade's threats, if accepted, as evidence of his consciousness of his guilt of one or both of the offences with which he was charged. A full Azzopardi direction would have assisted in ensuring that the jury did not use Wade's absence from the witness box in a similar fashion (see by way of analogy Johnston v The Queen [2007] NSWCCA 133 at [16]-[17] where the Crown relied on the accused's lies recorded in an ERISP as evidencing a consciousness of his guilt).
Thirdly, there was no evidence before the jury of police interviews in which Wade denied the prosecution's allegations. The existence of such evidence might have made the jury less ready to use Wade's absence from the witness box against him. The absence of such evidence again heightened the need for the Azzopardi direction.
The Crown contended that "an extensive direction about Mr Martinez's silence 'in court' would have highlighted the disparity" between his silence and Jake's decision to give evidence. However, this disparity would already have been obvious to the jury and should have led to an appropriate Azzopardi direction being given to protect Wade's position.
The consequences of an inadequate direction being given in relation to Wade's absence from the witness box need not be determined in light of my upholding of Grounds 1 and 2 which necessitates the quashing of both Wade's convictions and Jake's conviction and the ordering of new trials. In particular, it need not be determined whether the absence of objection by Wade's trial counsel to the sufficiency of the direction should preclude Wade from complaining of it on appeal. Nor need it be determined whether, if Ground 3 were the only successful ground, it would have been appropriate to dismiss Wade's appeal under the proviso to s 6 of the Criminal Appeal Act.
The Crown contends however that if the Court enters a verdict of acquittal of Wade on Count 2, it should substitute a verdict of guilty of the offence of reckless wounding under s 35(4) of the Crimes Act. This course would have been open to the jury, although the jury was not told it was, by reason of s 35(5). By reason of s 7(2) of the Criminal Appeal Act 1912 (NSW), this Court may, in appropriate circumstances, exercise the power that the jury could have exercised.
The relevant statutory provisions are as follows:
Crimes Act 1900 (NSW)
35 Reckless grievous bodily harm or wounding
…
(3) Reckless wounding - in company
A person who, in the company of another person or persons:
(a) wounds any person, and
(b) is reckless as to causing actual bodily harm to that or any other person,
is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
(4) Reckless wounding
A person who:
(a) wounds any person, and
(b) is reckless as to causing actual bodily harm to that or any other person,
is guilty of an offence.
Maximum penalty: Imprisonment for 7 years.
(5) Alternative verdict
If on the trial of a person charged with an offence against any subsection of this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against any other subsection of this section (that carries a lesser maximum penalty), the jury may acquit the person of the offence charged and find the person guilty of an offence against that other subsection. The person is liable to punishment accordingly.
Criminal Appeal Act 1912 (NSW)
7 Powers of court in special cases
…
(2) Where an appellant has been convicted of an offence, and the jury could on the indictment have found the appellant guilty of some other offence, and on the finding of the jury it appears to the court that the jury must have been satisfied of facts which proved the appellant guilty of that other offence, the court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity.
Before exercising its power under s 7(2) of the Criminal Appeal Act, this Court must conclude "that the jury must have been satisfied of facts which prove the appellant guilty of [the] other offence" (Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 at [24]). That is the case here as the jury's verdict that Wade was guilty of the offence of reckless wounding of George in the company of Jake necessarily indicated its satisfaction beyond reasonable doubt that Wade recklessly wounded George. That is, the latter offence was "wholly within the ultimate facts on which the accused [was] convicted" (Mehajer v R (2014) 244 A Crim R 15; [2014] NSWCCA 167 at [138] per Bathurst CJ).
Before returning that verdict, the jury was however misdirected in two respects of potential relevance to its deliberations on the reckless wounding element of the reckless wounding in company charge, namely, as to the threats allegedly made by Wade (see [87] to [106] above) and as to the absence of evidence from Wade at the trial (see [107] to [118]). As to the former, the Crown submitted that the alleged threats demonstrated Wade's consciousness of his guilt in relation to both the reckless wounding and the murder charges. The latter misdirection was clearly of potential relevance to both charges.
In these circumstances, the following observations of the plurality in Spies at [43] are relevant:
"Where the ground for setting aside a conviction is lack of evidence, wrongful admission of evidence, misdirection or failure to direct on an issue in the trial, s 7(2) of the Criminal Appeal Act should be taken as applying only where the jury must have been satisfied as to some fact (or facts) underlying the conviction which is (or are) unaffected by the lack or wrongful admission of evidence, misdirection or non-direction, and which constitutes (or constitute) another offence independently of that of which the appellant was convicted. Only then will the Court of Criminal Appeal be able to hold that the jury "must have been satisfied of facts which proved the appellant guilty of that other offence". It is not enough that the Court of Criminal Appeal thinks that, properly directed, the jury would or might have found the appellant guilty of the other offence, or that the appellant lost the chance of being found guilty on the lesser offence" (emphasis added).
As in OKS v Western Australia [2019] HCA 10; (2019) 93 ALJR 438 at [29] and [31], the Court cannot assume that the misdirections in this case had no effect on the jury's verdict.
As the jury's verdict, so far as it related to the reckless wounding element of the reckless wounding in company charge, may well have been affected by the two misdirections identified above, the Court should not exercise its power under s 7(2) of the Criminal Appeal Act to convict Wade of an offence of reckless wounding. It will be for the Director of Public Prosecutions to decide whether Wade should now be charged with that offence.
I add that in light of these conclusions it is unnecessary to consider whether, as contended on behalf of Wade, allegedly inadequate directions to the jury concerning self defence would have led to the same result.