Matusevich v The Queen

Matusevich v The Queen - [1977] HCA 30 - HCA 1977 case summary — Zoe

[57]

Although I have not studied the matter, I cannot see any good reason for reading (e) (iii) as only applying to counsel for the co-accused, but one never knows whether there may be some authority to that effect. In any event it will be necessary for me to give the jury very explicit directions as to the fact that they should not take the previous convictions of either accused into account to assist them to reach any conclusion upon the basis of propensity or disposition. With the background of this trial and the evidence that is necessarily before the jury, I do not feel that any possible prejudice which might have flowed to the accused by the asking of the questions by Mr. Martin, would, in any event, lead me to discharge the jury. I propose to cure it - if there is any defect in Mr. Martin's cross-examination - as well as I can. In the circumstances of the case I think it is a very different situation from the case of a man who is on trial and the jury has absolutely no knowledge whether he has got any previous convictions or not. If evidence of previous convictions gets in under those circumstances, of course, it may be very, very damaging indeed, but in the present case I do not feel that damage is sufficient to warrant me, on the sixth day of this trial and at the close of all the evidence, to discharge the jury, so I refuse the application. In the learned trial judge's charge to the jury he said: The third thing I want to mention to you is that - by the very nature of this trial we know that both the accused men are convicted criminals. Now ordinarily if you came to sit as members of the jury or if you come and sit in this court and hear criminal trials, you may hear a man charged with some terrible offence, and the trial will go from the beginning to the end, and you will never know, nor will anyone, no member of the jury will know or be allowed to know whether that man has a long history of criminal offences behind him or whether he is a man who is charged with a criminal offence for the first time. It is only in particular circumstances when a man's background, his criminal history, can be brought into a trial. I will not worry you about what those circumstances are, but you can see for yourself if you have got a man charged with a crime and there is conflicting evidence, if a jury were to know that that man had previously been convicted of the same sort of crime, particularly over a number of years, it would be dreadfully difficult for the jury to forget that and to concentrate its attention on the evidence before it. Ordinarily speaking the problem is not whether the accused person committed some other crimes; your problem is not that, your problem is whether these men or either of them committed this crime. Now, in this case, because they are both convicts in Pentridge, of course, it would be quite impossible to conduct the trial without your knowing that they were convicted men. Therefore what I want to say to you is it would be very wrong of you to hold that against them in the sense when you are debating a point amongst yourselves to say this man has a record of X and Y, and therefore he has a propensity to do this sort of thing or a disposition to do it simply by reason of his previous convictions. You are here to judge what he did on the 12th of November; so, do the best you can not to allow the fact that both of these people are convicted criminals, both serving sentences at Pentridge, to intrude in any way into your logical analysis of the evidence in relation to what happened on this particular night. The passage which I have quoted above was in the early stages of the charge and no further reference was made to prior convictions or the manner in which evidence with respect to them should be treated by the jury.

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constituted by the assent together of the participants to do the act [i.e. the actus reus alone] and it may be evidenced by their conduct. The fact that a man is insane for the purposes of the criminal law does not necessarily mean that he is incapable of assenting together with another man to an act. He may not know that the act is wrong but he may still assent to do it. The Court referred to the distinction between the actus reus and the mens rea which together constitute the crime of murder and said [48] : In this case the actus reus was made up of the unlawful striking of the blow or blows which caused the death of the deceased, and the resultant death itself. Leaving aside for the moment the effect of the insanity of one man, if the two men assented together to the striking of the blow or blows, then once it was established that the striking was unlawful and that death resulted from it, the two men were acting in concert in the actus reus of the crime. Any questions as to their knowledge that the striking was unlawful or that death would or might result or as to their respective intentions would arise only in determining whether either had a mens rea. And they therefore held that the assent of a sane man and an insane man to do the physical acts which constitute the actus reus makes the sane man guilty if he has the necessary mens rea, although the insane man is not guilty. The Court then referred to Reg. v. Tyler and Price [49] as supporting that conclusion and noted that Professor Glanville Williams in Criminal Law - The General Part, 2nd ed. (1961), p. 352, par. 120 analyses that case as being an instance of "innocent agency", but without making any suggestion that a sane person may not agree on an actus reus with an insane person. Reg. v. Tyler and Price was recently examined in some detail in the House of Lords in Director of Public Prosecutions for Northern Ireland v. Lynch [50] , a case which was primarily concerned with the defence of duress. It was there held that duress was a defence open to a person accused as a principal in the second degree i.e. as an aider and abettor, on a charge of murder. Some of their Lordships expressed the view that duress would not be an available defence in respect of a charge of murder as a principal in the first degree, while others left that point open, but see now Abbott v. The Queen [51] where a majority of the Privy Council held that duress was not a defence against a charge of murder available to a principal in the first degree who did the actual killing. Lord Morris dealt with Tyler's Case [49] in Lynch's Case and said [52] : there are many indications which suggest that in company with very many others they had joined Thom's assemblage because they were attracted by the claims and promises that he made. It would seemingly have been easy for them to detach themselves. It was against such a background that Lord Denman C.J. in summing up is reported to have said that the law was "that no man, from a fear of consequences to himself, has a right to make himself a party to committing mischief on mankind". Without analysing the expressions used it would not be appropriate to treat what was said as being a comprehensive statement of principle. Lord Edmund-Davies [53] treated the case as not establishing that duress was not an abailable defence in such circumstances. The question of duress, however, does not arise in the present case since, although Matusevich claimed that what he did after the killing he did under the duress of Thompson, the crime with which he was accused was completed before that stage was reached. In these circumstances, however, Reg. v. Tyler and Price [54] cannot be regarded as an authority directly bearing on the question of whether there can be a common intent as between a sane man and a lunatic, there being no other parties involved. The judgment does not advert to the point and it cannot be treated as determining it. 1. [1976] V.R., at p. 478. 2. [1976] V.R., at p. 478. 3. (1838) 8 C. & P. 616 [173 E.R. 643]. 4. [1975] A.C. 653. 5. [1977] A.C. 755. 6. (1838) 8 C. & P. 616 [173 E.R. 643]. 7. [1975] A.C., at p. 673. 8. [1975] A.C., at pp. 713-714. 9. (1838) 8 C. & P. 616 [173 E.R. 643].

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the question whether in a particular case the sane and the insane man were acting in concert requires of course an examination of the evidence. The nature of the insanity may preclude the insane man from being capable of the assent which is necessary for the two men to be acting in concert. They went on to say [55] : That would not mean that the sane man would not be guilty in respect of his own participation in the events which caused the death and the concept of innocent agency might well apply to make him liable for the acts of the insane man. But in such a case, the matter could not be put on the basis of acting in concert. The evidence given at the trial, however, would not have justified the view that there was anything in the nature of innocent agency in the present case. The difficulty is that all that the trial judge said in the course of his charge was that, although if the jury found Thompson not guilty on the ground of insanity they could not find Matusevich guilty of aiding and abetting (whether that is right or wrong is not material), "that does not apply in relation to concert". This appears to me to be inadequate, although in the event the jury did not act on that, or rather had no occasion to act upon it, because they did not find Thompson to be insane. A proper direction however would have to advert to the question whether the nature of the insanity may preclude the insane man from being capable of the necessary assent to produce action in concert. It would not be enough to say that all the jury had to consider was whether the condition of the insane man was such that his mind went with the doing of the actus reus. The jury should also be told that they must consider whether the nature of the insanity, if they find insanity, is such as to make it impossible for there to be any concert between the two accused. They should be told that if they find that one accused did not understand the nature or quality of the act which he in fact did, then there could be no concert between the two accused. They should also be told that, if the basis for their finding of insanity was that the accused did not know that what he did was wrong, they may find that the two accused acted in concert, if they are satisfied that there was an actual agreement or common understanding. The way in which such a matter should be expressed in a charge cannot usefully be considered further in the abstract, as it must depend upon the particular evidence in the particular case. 1. [1976] V.R., at p. 480. 2. [1976] V.R., at p. 480.

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But, in view of the possibility of linking the facts through Robinson to the accused Matusevich, it appears to me that this evidence has got some relevance in the sense that without it you have evidence of Matusevich giving an answer as to his motive, and that answer is left completely by itself without any shadow or substance to indicate whether the motive was such as to be an operating factor or likely to be an operating factor. It was subsequently pointed out to the trial judge that the supposed witness would be unlikely to say that he knew that Whateley had been an informer but notwithstanding that the trial judge said that he regarded the fact of the escape and of Whateley's informing about it as a relevant matter for the Crown to prove though he said, "There may be a missing link". At the end of that discussion counsel for both defendants indicated that they were prepared to make an admission that "three prisoners escaped from Ararat and that Whateley was a prisoner at that time in Ararat". In his charge to the jury the trial judge said that it had been admitted by both the accused: that he [i.e. Whateley] had on 31st October been a prisoner at Ararat gaol, and that on that date three prisoners escaped and that he had raised the alarm in relation to the said escape. Now, because counsel for the two accused admit those admissions, it does not mean that any inference should be drawn against either of the accused in relation to them. The transcript of the hearing however does not reveal that an admission in that form was in fact made but no objection was taken to this part of the charge to the jury. After the opening address by the prosecutor he mentioned to the jury with the consent of the trial judge that there had been certain admissions with respect to "four matters" and he gave particulars, which were that Whateley in fact died on 12th November 1974 as a result of injuries received by him on that day, that the deceased was in fact Whateley who was a prisoner in D Division Hospital on 12th November and that a test of the deceased's blood had shown no alcohol present, and that the deceased was a prisoner at Ararat prison on the night three prisoners escaped from Ararat prison. No further admission is contained in the transcript of evidence placed before us but, notwithstanding that, the trial judge in his charge to the jury said: Now it might be convenient to start off with the admissions, and you will remember that it is admitted by both accused that the deceased died on 12th November as a result of injuries received while he was a prisoner in Ward 1 of "D" Division at Pentridge; that he is the person named in the presentment filed in this Court; that when his blood was analysed there was no trace of alcohol, and finally that he had on 31st October been a prisoner at Ararat gaol, and that on that date three prisoners escaped and that he had raised the alarm in relation to the said escape. Now, because counsel for the two accused admit those admissions, it does not mean that any inference should be drawn against either of the accused in relation to them. 1. (1975) 132 C.L.R., at pp. 263-264.

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