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[1998] HCA 75
High Court of Australia
1998-12-10
Callinan JJ, Gummow JJ
Original judgment source is linked above.
It is possible that those women who are unable to fit themselves within the stereotype of a victimised, passive, helpless, dependent, battered woman will not have their claims to self-defence fairly decided. For instance, women who have demonstrated too much strength or initiative, women of colour, women who are professionals, or women who might have fought back against their abusers on previous occasions, should not be penalised for failing to accord with the stereotypical image of the archetypal battered woman. Similarly, Suzanne Beri has observed that [199] : BWS evidence interacts with cultural, gender stereotypes with the result that women, who kill abusers, now have to fit within an "abused woman" straightjacket [sic]. This corresponds to a stereotype of a white, middle-class woman and stresses passivity, docility and helplessness. It excludes the experience of Maori women whose experience of abuse is also shaped by racism. 1. Goodyear-Smith, Re Battered Woman's Syndrome [1997] NZLJ 436-438 [1998] New Zealand Law Journal 39. 2. McDonald, Battered Woman Syndrome [1997] New Zealand Law Journal 436, p 437. 3. Budrikis, Note on Hickey: The Problems with a Psychological Approach to Domestic Violence, Sydney Law Review, vol 15 (1993) 365. 4. Stubbs and Tolmie, Race, Gender, and the Battered Woman Syndrome: An Australian Case Study, Canadian Journal of Women and the Law, vol 8 (1995) 122; Faigman and Wright, The Battered Woman Syndrome in the Age of Science, Arizona Law Review, vol 39 (1997) 67, at pp 111-113; Shaffer, The Battered Woman Syndrome Revisited: Some Complicating Thoughts Five Years After R v Lavallee, University of Toronto Law Journal, vol 47 (1997) 1, at pp 13-14, 25-33. 5. Stubbs and Tolmie, Race, Gender, and the Battered Woman Syndrome: An Australian Case Study, Canadian Journal of Women and the Law, vol 8 (1995) 122. 6. Schneider, Describing and Changing: Women's Self-Defense Work and the Problem of Expert Testimony on Battering, Women's Rights Law Reporter, vol 9 (1986) 195; Freckelton, Battered Woman Syndrome, Alternative Law Journal, vol 17 (1992) 39; Volpp, (Mis)Identifying Culture: Asian Women and the Cultural Defense, Harvard Women's Law Journal, vol 17 (1994) 57, at p 93; Moore, Battered Woman Syndrome: Selling the Shadow to Support the Substance, Howard Law Journal, vol 38 (1995) 297. 7. [1998] 3 SCR 123 at 142. 8. Beri, Justice for Women Who Kill: A New Way?, Australian Feminist Law Journal, vol 8 (1997) 113, at p 123.
There is a danger that in being too closely defined, the syndrome will come to be too rigidly applied by the Courts. Moreover, few aspects of any discipline remain static, and further research and experience may well lead to developments and changed or new perceptions in relation to the battering relationship and its effects on the mind and will of women in such relationships [Th]e syndrome, where it is found to exist, is not in itself a justification for the commission of a crime. It is the effects of the violence on the battered woman's mind and will, as those effects bear on the particular case, which is pertinent. It is not, therefore, simply a matter of ascertaining whether a woman is suffering from battered woman's syndrome and, if so, treating that as an exculpatory factor. What is important is that the evidence establish that the battered woman is suffering from symptoms or characteristics which are relevant to the particular case. 1. [1997] 1 NZLR 154 at 173-174.
Obviously the fact that the appellant was a battered woman does not entitle her to an acquittal. Battered women may well kill their partners other than in self-defence. The focus is not on who the woman is, but on what she did. Similarly, in Malott [212] , L'Heureux-Dubé J remarked: The legal inquiry into the moral culpability of a woman who is, for instance, claiming self-defence must focus on the reasonableness of her actions in the context of her personal experiences, and her experiences as a woman, not on her status as a battered woman and her entitlement to claim that she is suffering from "battered woman syndrome". 1. cf Green v The Queen (1997) 191 CLR 334 at 393 2. Green v The Queen (1997) 191 CLR 334 at 407 3. [1990] 1 SCR 852 at 890. 4. [1998] 3 SCR 123 at 143.
The issue in a self-defence trial is not whether the defendant is a battered woman, but whether she justifiably killed her husband. The defendant introduces testimony to offer the jury an explanation of reasonableness that is an alternative to the prosecution's stereotypic explanations. It is not intended to earn her the status of a battered woman, as if that would make her not guilty. 1. Crocker, The Meaning of Equality for Battered Women Who Kill Men In Self-Defense, Harvard Women's Law Journal, vol 8 (1985) 121, at p 149.
Expert evidence on the psychological effect of battering on wives and common law partners must be both relevant and necessary in the context of the present case. How can the mental state of the appellant be appreciated without it? The average member of the public (or of the jury) can be forgiven for asking: Why would a woman put up with this kind of treatment? Why should she continue to live with such a man? How could she love a partner who beat her to the point of requiring hospitalisation? We would expect a woman to pack her bags and go. Where is her self-respect? Why does she not cut loose and make a new life for herself? Such is the reaction of the average person confronted with [BWS]. We need help to understand it, and help is available from trained professionals. 1. Lavallee [1990] 1 SCR 852 at 886 2. [1990] 1 SCR 852 at 871-872.
The admissibility of expert evidence respecting battered woman syndrome was not at issue in the present case. The admissibility of the expert evidence was not challenged. However, once that defence is raised, the jury ought to be made aware of the principles of that defence as dictated by Lavallee . 1. [1998] 3 SCR 123 at 133. Emphasis added.
You must decide whether the provocation was of such gravity, that it might - not would - might cause an ordinary person in the circumstances of these accused to react in the way in which they reacted So you are talking about your judgment of what an ordinary person, a person with ordinary powers of self-control, might have done in that situation. Might an ordinary person in that situation have killed the deceased - and, remember, I am using the word " might " which indicates you are dealing with possibilities. (Emphasis added.) Taken as a whole and with the passage I have quoted, there was no risk whatever that the jury were ultimately misinformed about the law which they were to apply [220] .
It will be open to you in the provocation context, to consider whether or not there might be some relatively minor act of abuse - I do not mean trivial, but relatively minor act of abuse - which was, as it were, the last straw that breaks the camel's back and which produced a sudden loss of control for a woman in her circumstances that might possibly have caused her to react as she did and which might cause an ordinary person in the circumstances in which she was, to do so. This direction was correct. Evidence of a long-term abusive relationship, even if accepted, did not afford a person in the position of the appellant a blank cheque to plan and execute the homicide of her abuser, protected by the law of provocation, with only a passing nod at the immediate circumstances said to have driven her to the grave step of participating in the termination of a human life.
[W]ill involve considering whether or not [Mr Albion and the appellant] killed [the deceased] when experiencing a loss of self-control, what might possibly be regarded such loss of control that an ordinary person in those circumstances, that is their circumstances, might experience [Y]ou might use the battered woman syndrome to reach a conclusion that the Crown had not satisfied you, when [the appellant] participated in his killing, that she had not finally snapped or reached a point where control was lost in response to a final provocation; and that as a woman who had been, as they would contend, degraded and beaten down over a period of years, that her reaction was that of an ordinary person in that situation. In the light of that provocation you may not have much difficulty in concluding, if you accept [the appellant's] and all the others' evidence, that she was at least at some stages a battered woman within the syndrome. I read this and other portions of the instruction on this issue (some of them set out in the reasons of Callinan J) as highly favourable to the appellant. However, the failure of the jury to resolve the issue of provocation against the Crown is scarcely surprising given the evidence. Although, as described by the appellant and her son, the past conduct of the deceased towards them was deplorable, there was clear evidence (most especially in the intercepted telephone conversations) that such conduct had abated in the years immediately preceding the killing. There was no suggestion in the appellant's evidence of any particular conduct on the part of the deceased in the day or days preceding his death which could be described as "the last straw". Even if the jury were satisfied that the appellant could be classified as a "battered woman", and a true victim of BWS as described in the evidence, there would have been abundant justification for a conclusion that her conduct, in furtherance of her plan to kill her husband, was coolly premeditated. In her case, there was little or no evidence to demonstrate that she had lost that level of self-control which the common law and statute law in Australia ascribes to the "ordinary person" in the position of the accused [221] .
In Green v The Queen [222] , a case where an unwanted and unexpected homosexual advance was alleged to constitute provocation, I expressed the view that this Court should be extremely careful to avoid any signal condoning serious violence by people who take the law into their own hands. This case is quite different in that the appellant was not as free in her circumstances to walk away from the unwanted conduct as Mr Green was in his. But I remain of the view which I expressed in Green . In a case bearing some similarities to the present one, Gleeson CJ, in the New South Wales Court of Criminal Appeal, remarked to similar effect [223] :
[W]ith all its theoretical imperfections, and practical roughness, the law of provocation is still only a limited concession to a certain type of human frailty, and is not intended to allow a jury to reduce what would otherwise be murder to manslaughter upon a view that a deceased person received his or her just deserts. The law is not intended to encourage resort to self-help through violence. 1. This was the view of the Court of Appeal. See R v Osland [1998] 2 VR 636 at 650-651 2. Stingel v The Queen (1990) 171 CLR 312 at 336 Green v The Queen (1997) 191 CLR 334 at 409-412 3. (1997) 191 CLR 334 at 415-416. 4. R v Chhay (1994) 72 A Crim R 1 at 13
[W]hether [the appellant] and [Mr Albion] believed that [the deceased] was a then threat to their lives and safety and, if they did, whether they believed that on reasonable grounds. After discussing provocation, the judge directed the attention of the jury to an obviously relevant question: The real problem may not be the issue of the syndrome, but in deciding whether or not the facts, the evidence, admit of self-defence through fear of an impending attack. This direction was correct and sufficient.
In Zecevic v Director of Public Prosecutions (Vic) [12] , this Court explained that issues of self-defence were to be approached "in a practical manner and without undue nicety, giving proper weight to the predicament of the accused". The reason assigned for this approach was that, in most cases where the issue of self-defence is presented to a jury, the accused may have been afforded "little, if any, opportunity for calm deliberation or detached reflection" [13] . Self-defence may indeed be relevant to a case where an abusive relationship is established by the evidence. Such evidence may assist a jury to understand, as self-defensive, conduct which on one view occurred where there was no actual attack on the accused underway but rather a genuinely apprehended threat of imminent danger sufficient to warrant conduct in the nature of a pre-emptive strike. Clearly, it is still necessary to discriminate between a self-defensive response to a grave danger which can only be understood in the light of a history of abusive conduct and a response "that simply involves a deliberate desire to exact revenge for past and potential - but unthreatened - future conduct" [14] . The former will attract considerations of self-defence. The latter will not. That is doubtless why cases involving evidence of prolonged abuse have been held to attract the law of self-defence but generally where, immediately before the fatal attack, the alleged abuser had threatened further serious violence against the accused [15] or, in one case, her son [16] . The significance of the perception of danger is not its imminence. It is that it renders the defensive force used really necessary and justifies the defender's belief that "he or she had no alternative but to take the attacker's life" [17] .
Police interview: In the video tape recorded interview between police officers and the appellant, conducted in January 1995, the appellant acknowledged that it was she who raised with Mr Albion the plan to kill the deceased. It was she, with her son, who picked the particular place and over a couple of hours helped him dig the "hole" ready for the deceased's body. It was she who gave the deceased some of her tranquillisers, crushing six or seven tablets and putting them in his meal. It was she who said to her son "I'll do it" evoking his offer because, he said, she was not strong enough. It was she who suggested a baseball bat but her son, considering that a bat would break, went to the shed to get a piece of pipe. The interview proceeded:
Q 169 When you say "we", can you explain exactly what happened?
A David hit him and - and I held him down, 'cause his nerves were startin' to jump, so we just held him down.
A On his head. I just wished I had've done it, that's all.
Q 181 Right. And after he'd been struck twice, what happened?
A We just held him down till his nerves stopped jumpin around.
Thereafter, it was the appellant who tied a bag over the deceased's head. By that stage she thought he was dead because he had stopped twitching. The interview went on:
Q 209 Right. When David struck Frank, he intended to kill him?
A It was just to get rid of the shit. (Emphasis added.)
It was the appellant who helped her son carry the deceased to the "hole" they had dug. After depositing him there, in the bush, she returned to clean up the bedroom in an endeavour to remove the evidence of the killing. There was no suggestion in this interview that the appellant's actions were other than those of a most substantial contributor to the deceased's death [19] . On the contrary, the appellant made it plain that she was the moving force: contributing the idea, the methodology and to the disposal of the body. She seemed to express regret for involving her son at all, a view which might well have been shared by the jury. When Mr Albion struck the blows that killed the deceased, she accepted that he was doing so for her. She made the death possible by administering the sedative and holding the deceased whilst he twitched his last mortal movements. Far from objecting to the tender of the evidence of this interview at the trial, the appellant's counsel took the appellant through it.
Pre-trial proceedings: When the issues for trial were being defined in discussion between the trial judge and counsel in advance of the hearing counsel made clear, as had been stated in a written outline, that the appellant's defence was "based on self-defence and provocation". Counsel said specifically: "There is not going to be denial of involvement in the killing."
Opening statement: After the jury were empanelled, the Crown Prosecutor, in his opening, referred to this identification of the issues. He told the jury specifically: For Mrs Osland you heard it stated that it is not disputed that Mrs Osland was involved in the killing of Frank Osland, nor as I apprehend is it disputed that he died as a consequence of being struck on the head with a steel pipe whilst asleep or under narcosis. There was no objection to this statement. From the outset, then, this was the way the issues were presented for the appellant at her trial. No change occurred during the course of the trial.
Closing address: At the conclusion of the evidence, in the address to the jury on behalf of the appellant, her counsel stated what she submitted the fundamental issues to be. As defined by her, they were the issues of self-defence and provocation. In expressing the issue of self-defence she acknowledged the appellant's involvement in the killing of the deceased [20] . Far from contesting that the appellant had played a causative role in killing her husband, that role was, in terms, acknowledged. Virtually the whole of the address was directed to the issues relevant to the abusive relationship and why the appellant had not just left the deceased. The appeal to the jury was that they should evaluate the appellant's conduct not solely by reference to what had happened on the night of the killing or the few days before it. They were to look at the "years of that relationship" in order to decide whether "it was necessary for her to act as she did ". (Emphasis added.) Far from attempting to suggest some differentiation between the appellant's involvement in the acts causing the deceased's death, and that of Mr Albion, their actions were undifferentiated. Understandably enough, the appellant's counsel declared: " They did it." (Emphasis added.) As far as her case was concerned, the appellant never denied that she had killed the deceased. She admitted that she had killed him; but sought to explain or justify it in the circumstances. So far as counsel for Mr Albion was concerned, he also made it plain before the first jury, as the conduct of his case had done, that he had struck the deceased "to save himself and his mother". The only real issue tendered in his case was that of self-defence.
Judge's charge: It is with this understanding of the evidence and the conduct of the trial that the complaints now so belatedly made about the judge's directions to the jury must be understood. His Honour made it clear that it was for the Crown to establish that the death of the deceased had been caused by the acts of the accused. Such acts did not have to be the sole cause but had to be "a substantial cause of death". He pointed out that the evidence in this respect was not extensive because the matter had not been argued by the defence. Nevertheless he made it clear that it was still a matter upon which the jury had to be satisfied. He identified the blows with the steel bar as "an operative and substantial cause of death". He suggested that it was the conduct and acts of the accused that had caused the death. He added, as an aside, "in this case, it can only be a blow with the instrument". In its context, this remark could only be taken as meaning that the immediate cause was the blow with the instrument. This is made plain by the context of these words in a long trial of two accused in which it was common ground that those blows had been wielded only by Mr Albion. It is reinforced by the passage which preceded and followed the reference to the "blow with the instrument". The succeeding passage states: Now it does not seem to be denied that it was the acts of the accused jointly that caused the death. It is not likely, having heard counsel's submissions, that you will be troubled by that. Nevertheless it has to be proved and you will have to be satisfied on the evidence the accused's act did cause the death. You may, of course, additional to what I have said, rely upon the statements of Heather Osland to the police and to you and the evidence given by David Albion before you. There was no relevant request for redirection.
Court of Appeal: Nor was any ground of appeal filed in the Court of Appeal complaining about the directions given by the trial judge concerning the appellant's involvement in the acts causing the death of the deceased. No such point was argued or considered by that Court, although everyone was then aware of the acquittal of Mr Albion at his second trial. It was only in this Court that the point was advanced for the first time. Even then, it was not put forward as a specific ground of objection to the directions on law given by the trial judge to the jury. Although there were many other objections, this was not one of them. Instead, the point was only mentioned as ancillary to the argument concerning the suggested incompatibility between the jury's verdict in the case of the appellant and the successive jury decisions concerning Mr Albion.
On the morning of 30 July 1991 Mrs Marjorie Heather Osland (the appellant) and her son David Albion (Mr Albion) dug a grave in bushland near Bendigo where they were living with the appellant's husband, Frank Osland (Mr Osland). That evening the appellant fed the husband curry laced with a sleep-inducing drug containing diazepam. After he became unconscious Mr Osland was bludgeoned to death by the appellant's son using an iron bar. The appellant and Mr Albion then hooded the deceased's head in a plastic bag and transported his body in his motor vehicle to the grave which they had prepared where they buried him. They then drove his vehicle to Melbourne where they abandoned it.
It was not until 12 January 1995 that the appellant and her son were charged with murder. In the meantime they had repeatedly represented to all (except Mr Albion's brother, Paul) including the police to whom the appellant reported the deceased as a missing person, that he was alive.
The trial of the appellant and the first trial of Mr Albion took place in October 1996 in the Supreme Court of Victoria. It lasted twenty-two days and resulted in the conviction of the appellant for murder and a disagreement by the jury with respect to Mr Albion. On a retrial on 12 December 1996 Mr Albion was acquitted of both murder and manslaughter.
The appellant was sentenced to a term of imprisonment of fourteen years and six months. She was ordered to serve a minimum period of nine years and six months before becoming eligible for parole.
The appellant sought leave to appeal to the Court of Appeal of Victoria against both her conviction and sentence. The grounds of appeal were extensive. They included complaints about the trial judge's directions to the jury with respect to numerous matters including provocation, the use to which lies told by the appellant could be put and the directions on motive of the appellant. Other grounds relied on were that some evidence favourable to the appellant had been wrongly rejected and that other evidence adverse to her had been wrongly admitted.
The appellant chose to give evidence at her trial. She deposed that she had met the deceased in 1970 and began to cohabit with him in 1977. She had four children all below thirteen years of age from a marriage that had been unhappy and had by then failed. After only two weeks of cohabitation the deceased became violent and abusive, "very abusive, very emotional, very traumatic". Mr Osland, she said, was dictatorial in all domestic, social, familial and sexual matters. The appellant's evidence in chief is a catalogue of alleged indignities. She gave many examples of painful and systematic violence which she said was inflicted on her by him from time to time. As often as once weekly, the appellant, or one of the children was struck by Mr Osland. He was a very jealous man. He made a practice of accusing the appellant of "slutting around" and dominated almost all of her and the family's activities. According to the appellant, Mr Osland frequently imposed anal intercourse upon her against her wishes. He threatened that he would kill her and the children if she ever tried to leave him. There were other manifestations of Mr Osland's violent disposition. He was cruel to animals: he spoke to the children of killing and chopping them up. She told the jury that in the early days of their cohabitation the deceased was a big man, of sixteen stone, and that she was a small woman only five feet three inches in height. Another practice he adopted was to lock the appellant and the children out of the house when they returned from church on Sundays. On two occasions he pointed a firearm at the children.
In due course the appellant was able to obtain a tenancy of a Housing Commission house and to move herself and her children from the house they had been occupying with Mr Osland. During a brief absence by the appellant, Mr Osland broke in to the Housing Commission house. He took up residence there after he had lost an entitlement to live in a house owned by his former employer.
In 1980 the appellant, her children and Mr Osland left Karratha in Western Australia where they had spent the preceding three years and moved to Bendigo in Victoria. There another separation occurred. In 1981 the parties bought a house in Bendigo as tenants in common with a deposit provided by the appellant and a loan from a bank. The bank would not lend the money for the purchase unless a male was also liable to repay the loan. Mr Osland agreed to this and moved into the house with the appellant and her children. Separations intermittently occurred. Again Mr Osland inflicted physical abuse upon the appellant and threatened to kill her and the children. The appellant was suffering cystitis possibly related to the deceased's insistence upon anal intercourse, against her will. There were further outbreaks of violence against the children, and threats of death made to the appellant's mother.
On one occasion, at Christmas 1982, when the parties were separated the appellant sent the male children to stay with their natural father. She said that when they were away she would have an opportunity to leave Mr Osland and to hide from him. However no permanent break occurred then. The appellant throughout this period was working and earning despite Mr Osland's intense jealousy and repeated, embarrassing appearances at her various workplaces. She was accordingly able to purchase a unit for herself in Bendigo where she set out to live with her two daughters.
In 1984 the appellant decided to visit a friend in the United States. Mr Osland demanded that the appellant stay in Australia. She refused and travelled to the United States making a point of telephoning him eighteen times during her holiday of nine weeks. Whilst she was away he sent her some flowers on her birthday. On her return he met her at the airport and drove her back to Bendigo. She gave evidence that at this time "[She] cared about him and wished he would change." A reasonably happy interlude of about two months of cohabitation ensued. A reversion to Mr Osland's old ways occurred as soon as the parties married, an event which took place soon after the appellant's return from the United States. She explained this development on the ground that she hoped marriage might "make things work between us." According to the appellant's evidence, even on the wedding day, at the church, and during the reception Mr Osland made offensive comments to her.
Matters continued to deteriorate. Mr Osland said that he had married the appellant in order to gain possession of the unit she had bought. Another separation occurred in about April 1985 when the appellant obtained the assistance of the police to eject Mr Osland from the unit in which the family was then living. He persisted in following and threatening the appellant and her children, at her work place, in the street, and outside her residence.
I have really summarised enough of the appellant's evidence to give the substance of her description of life with the deceased until about early 1991, a pattern of threats, physical violence, short-lived reconciliations, illness (cystitis and hypertension) repression and fear. The appellant denied in her evidence in chief that she had asked her other son, Paul who gave evidence to that effect, to kill Mr Osland. She denied a similar claim made in evidence by another witness Mr Dalziel.
The appellant's evidence of more recent times before Mr Osland's death, was that his violence towards her was "building up". She described his threats to Mr Albion made during the week before the deceased was killed. She said that Mr Osland literally kicked her out of bed during this period. He punched the appellant in the chest numerous times. She feared that he might attempt to smother her when she was sleeping. She had reached a point at which she thought an attempt by him to kill her was certainly imminent. She thought in particular that her failure to obtain some fittings for a bed which he had demanded would be a precipitating factor. I quote from her account of events leading up to the death of her husband:
When you couldn't get the knuckles for the bed, what effect did that have on you? - I knew I'd be in deep shit, because I didn't have the knuckles and then he'd accuse me that I hadn't been out there, that I'd been lying. It was just a deep fear that built up in me.
So did you do anything or say anything to David [Albion] as a result of this feeling because you hadn't been able to get the knuckles? - I just knew we'd be in trouble.
Did you say anything to David about that? - Yes we did, we talked about it.
What did you say? - I would've said David, oh my God. We didn't have to talk much because we just knew by actions, that I'd be in trouble.
After you'd been to Henry Ott's where did you go? - We just parked in that little - little, what do you call it? Oh, where the bush had made that opening in the bush, up the track, we went up through the track and driving up through there, looking. David thought the plants [marijuana] would be up there, and there were -
His Honour: A sort of an opening you mean? - Yes, like an opening, it was onto a dirt road, we went up through the bush and we turned off and sat in that opening and think my God, what are we going to do.
When you say "thinking", were you saying anything or just thinking? - Just thinking.
Did you speak to David at all when you stopped there in that clearing? - I just said, "What are we going to do?" I just knew that he was - I just knew that he was going to kill me, the fear in me was just so bad.
What did you do? - We thought, "What are we going to do? We will just dig a hole like he was always going to dig a hole for us."
But did you say anything? - No, there wouldn't have been much said between us because it was just the fear that David and I both had inside.
You said, "We said we'd dig a hole", who actually said that? - I'd say me.
Did you say anything about what you'd do with the hole? - We'd just see what mood he was in when he came home that night.
Did you say anything about what you'd do depending on his mood? - No, not really.
Did you say anything to David about what the purpose was for digging a hole? - If he was violent and verbal like he was the night before, well we'd just shove him in the hole.
His Honour: You said that to David? - Yes, virtually.
I'm not sure what "virtually" means? - It's a fear that you have -
I think what Mrs Hampel is asking you to direct you to is not so much what you were personally thinking, but what was said between you and David, if anything? - There was virtually nothing, because there's just that much fear was in us.
Counsel: What was in your mind? - I knew I'd be dead, I knew he'd kill me.
What was in you mind as the purpose for the hole? - That we would just shove him in the hole if he come home the same as he did the night before.
What did you do after that? - We went home and got the shovel and the crowbar.
What did you do after that? - Then we just went back and dug a hole.
You were asked by the police in your interviews about digging the hole; weren't you? - Yes.
I want to read you a couple of questions and answers that you were asked by the police in the first interview. That was the one that was recorded on the audio tape.
You were asked this, "And can you go through with me exactly what happened on the night he was killed?"
Answer: That day he was just so bad it was either - he would just - the tension in the house was just so bad it really was, you've got no idea, and I'd made - said that we'd - said to David about it - he said, "We have to get rid of him, mum". I said, "I know, even if I left him he'd never leave me alone" which he never did.
Question: "And what happened then?" Answer: "We dug the hole that day." You gave those answers to the police in the audio interview about the hole? - Yes, that's correct.
What did you say about the accuracy or truthfulness of those answers? - That is true.
You then in the first video interview, the one out at the scene - I am going to all three interview[s], if that's of assistance Your Honour. (To Witness) I want to ask you a couple of questions about what you said in the first videoed interview, the one out at the scene. At question eight were you asked this, "And can you tell me what happened on that occasion?"
Answer: "I just came here to - we sat there in the car and decided that we'd dig a hole. If he was shitty when we went home well we'd do something about it." You gave that answer? - Yes, I did.
What do you say about the truthfulness and accuracy of that? - That's true, that's correct.
And in the long interview back at the CIB office, question 49 and following, Your Honour, did you give these answers? Question: "If we can get back to the day of the murder, what was actually discussed between David and yourself; can you remember the conversation?" Answer: "Not - not murder him, just get rid of him, just getting rid of all the shit out of our life. All the time it was, it was just shit all the time. We couldn't breathe, we didn't talk when he was there. Couldn't have anyone at the house. He wouldn't allow anyone at the house."
Question: "So what plan of action did you?" Answer: "We just thought we'd go and dig a hole and just kill him, that was all, just getting rid of him, because I knew if I left him - because I wanted to leave - and I knew he wouldn't let me go anyway. There was no really - I don't reckon there was a real plan planned. We'd thought about things, and we'd talked about things in getting rid of him."
Question: "Had you any specific plan how you were going to do it?" Answer: "No, it just all come about that day virtually. I'd think about - it was virtually - either just virtually the day before or that day, that was all." Question: "Who brought up the conversation with regard to killing him?" Answer: "It would be me, I suppose."
Question: "Can you remember what you said to David?" Answer: "No I can't". Question: "Was David aware at that stage that's what you were thinking about?" Answer: "Yes, we were both thinking it was just to get rid of the shit". Question: "Had Frank ever assaulted David?" Answer: "As far as hitting him, you mean?" Question: "Yes?" Answer: "Probably when he was little, but he done more mental things to David, like not letting him get his bike and locking the bikes up and not letting him feed the birds and the birds starved to death when we had birds, and it was all just mental."
Question: "If you can slowly go through what happened that day, including any conversation you can remember between yourself and David?" Answer: "We didn't really talk that much. We just went out, got in the car and we went for a drive, decided we'd dig a hole, which we went there because David had been out there trying to find some marijuana plants once before, went up and around and we found the spot, and we sat in the car probably for half an hour or more and Bonnie, my dog, and the two little pups were only little at the time". You were asked some questions then about what time it was, then you were asked at question 62: "And what did you have with you at the time?" Answer: "Shovel and crowbar". Question: "Right, and it was David's idea to pick that location?" Answer: "No we just wandered around and we just picked it together." Question: "And what happened when you got there?" Answer: "We just started digging a hole, because if we did do anything, at least we had a hole." What do you say as to the truthfulness and accuracy of those answers? - That's correct, what I can remember.
What did you do when you dug the hole? - We had no plan to do him any harm. We just waited for him to come home.
Before he came home did you do anything else? - We waited at the front windows to see him get out of the car, like we normally did, to see what mood he was going to be in.
You said that you were watching out the window for Frank to come home?
Why were you doing that? - We always stood there watching. We did that for - for months; used to watch him when he got out of the car just to see what mood he was in. If he was laughing more jovially with his mates, then we knew we were in trouble when we got inside. If he was more solemn when he got out of the car, he wouldn't be so bad when he got inside.
On the Tuesday night, what was he like when he got out of the car? - He was laughing. He was as happy as anything.
How did that make you feel? - We knew. We listened for him to walk down the driveway and we knew we were in trouble.
What happened when he came inside? - He verbally abused me over having me hair cut. And I blocked all the rest of it out of my head. I just can't get it out of my head.
Was anything said about the knuckles for the bed? - It would've been, yes. I know he was so angry. I can see him standing over me. I can see it, but I can't hear his words.
How long was he verbally abusive after he got home? - I reckon a good hour, hour and a half.
What were you doing during that time? - Just listening.
How did you feel during that time? - I knew I was in trouble. I was full of fear.
What were you fearful of? - My life, I was fearful that if David went that day I knew I was - .
Were you fearful that David would leave that day? - Yes, I thought he'd chuck him out the door like he did Erica.
Why did you think he'd do that? - Cause he's done it so many times before.
When he was verbally violent for an hour and a half did you decide to do anything? - I just thought I'd put the sleeping - those tablets in his dinner to quiet him down. I just wanted one night of peace.
You told the police in your interview that you crushed the tablets up? - Yes.
What did you do with them? - I put them in his dinner.
You told Mr Thatcher in the interview that you'd cooked spaghetti for dinner? - Yes.
What did you cook for dinner? - I actually cooked curry. I told Mr Thatcher that on the Saturday in the cells that I'd actually remembered cooking curry.
Regardless of what it was, what did you do with the crushed up tablets? - I mixed it in his food.
Did anything happen when you served the dinner that night? - Yes, he got very angry because he reckoned that I made it only for David, he didn't want it and pushed it away.
Had you made curry before? - Yes, loads of times.
Was it any different from the curry you'd made on other occasions? - No, not at all.
Had you made it for David? - No, I just made it in general, it was just a general meal.
How much of it did Frank eat? - He didn't eat all of it anyway, it might have been half, over half.
What was his manner like when he pushed it away? - He was so angry 'cause I'd only made it for David and just got up from the table.
When you say he was so angry 'cause you'd only made it for David, what did you actually say? - I can see him but I can't hear his words.
What was his manner like? - He was just so aggressive.
What happened after that? - He went down into the shed.
How long was he gone there? - I reckon 10 minutes, quarter of an hour.
What did you do while he was gone? - I just cleared the table.
What were you thinking about while he was gone? - Oh God, if he found out that I put the stuff in his meal I'd be in deep shit.
What happened after that? - I saw him come back from the shed and he stumbled up the stairs, virtually fell up the stairs.
What was in your mind when you saw that happened? - I thought, "Oh my God, he'll know that I've put the stuff in his meal to quieten him down".
Did you think about what would happen to you if he did realise you'd put the stuff in his meal? - Yes, I did.
What did you think about what would happen to you? - That if he put the pillow over me head this time I was virtually gone, he came in - .
Then what did he do? - He sat at the kitchen table.
What did he do when he sat at the table? - He was sort of falling back like he was - like he was drugged.
Was he awake or asleep? - He was half - he was sort of nodding on and off.
Was he [w]aking on and off? - No, but his head would fall back occasionally when he was nearly nodding off to sleep.
How did that make you feel? - I though[t], "My God, if he wakes up and finds out what I've done I'll be in trouble."
How long did he stay at the table? - I'd reckon, 20 minutes.
Did he change from the way you described he was? - Yes, he got up and pushed the chair back and then stomped into the bedroom, kicking the door open and then went into the bedroom.
Did he say anything when he did that? - No, he was just really angry - he was just really angry.
What was it about what he did that made you believe that? - It was just the way he done it.
What did you do when he got up and went into the bedroom? - David and I stood in the big room and we thought, "Oh, my God".
When you say "we thought" are you now talking about what you saw or what you thought? - What we were thinking between us.
Okay, let's talk about what you were thinking. What were you thinking? - I thought. "My God, he'll know I put the stuff in his meal". I just was - would probably never have - I was just paranoid what would happen if he woke up and knew what I'd done.
Did you say anything to David at that stage? - No, we just knew the fear that had built up in us so badly.
What did you do? - We just - sort of that I couldn't live like this any more.
Did you speak? - No, not really, it was just eye contact between David and I and we just knew.
His Honour: What did you know? - Beg your pardon?
What did you know. You said, "eye contact" between David and you. You are saying, "we knew" but I think David will have to speak for himself about that, but what was the next thing that you decided to do? - Well, there was just no way out - there was no way out for David and there was no way out for me 'cause I just knew he'd never let me go.
Counsel: You told the police in your interview that David went to the shed and got a piece of iron pipe? - That's correct.
What happened between the time you knew there would be no way out for you, and the time David got the pipe? - I was just standing in the big room, I didn't move, I was just - I was paralysed - I was just paralysed in fear, I think, thinking of what would happen if he woke up.
You told the police in your interview what happened after David got the pipe? - Yes.
You've told the police what happened after Frank was killed in terms of taking his body out to the hole and burying him? - That's true, yes.
Is what you told the police in the interview about that the truth? - Yes, it is.
You told the police, in your interview, that after you went home and cleaned the lace from your bed? - That's correct, yes.
Is what you told the police about that the truth? - Yes, it was, and then while we were cleaning that I thought, "Oh my God, what about his car?"
And you told the police that's what you thought and that you then took the car to Melbourne and dumped it? - That's correct.
Is what you told the police about that the truth? - That's true, yes.
Self evidently, a jury would be entitled if they were so minded, to infer from that account, a high degree of premeditation. They would also be entitled to take the view that the appellant did not drug her husband to quieten him down as she later said in evidence, but instead to render him powerless to resist the fatal assault upon him which was planned as evidenced by the preparation of the "hole".
A number of telephonic intercepts were subsequently made by police and tendered in evidence at the appellant's trial. They revealed telephone conversations between the appellant and others during which the appellant spoke of allegations of which she had heard that she and Mr Albion had killed the deceased, and how false such allegations were. She also counselled those to whom she spoke as to the way they should conduct themselves, and how others had conducted themselves in interviews with police officers. Conversations with her co-accused were also taped during which the appellant discussed with him what he should say to the police when they called upon him.
Some of those conversations are capable of being construed as revealing a somewhat different picture, particularly of recent times, from that painted in the evidence in chief of the appellant to which I have referred. The following are examples of conversations between the appellant and her friend, Gwen, and between the appellant and her daughter, Erica:
Osland: Yeah because of his violence and everything towards me in me marriage you know going back earlier.
Osland: If I was going to do anything I would've done it years ago.
Gwen: That's right. (conversation between appellant and Gwen Rotherington on 21 December 1994).
Osland: But the thing is though Erica I just said to Stan before you know like if he's saying that you and David sort've sit there and plan it you know like you'd be six or seven years of age or eight, he never used to hit much once he got older it was only when you were little and those days is Karratha days, right and I know when he was sleeping in the corner but you were all too young for all that shit to even remember what how he used to sleep in the trailer you wouldn't know all that shit. (conversation between appellant and her daughter, Erica on 18 December 1994).
In most respects the appellant's version of events given in examination in chief corresponded with her account in various interviews conducted by police officers. During one of these the appellant said this:
Well, we - it's together. I'm not saying David did.
He - I wanted to do it but I wasn't strong enough, David said.
We hit him together, it's joint responsibility. I know it is, it's not fair that David's got to take that blame.
The evidence of Mr Albion, the co-accused, at the trial was that, when the deceased came home on the night of the killing, he was working on his car when he heard the appellant scream. He went into the house and saw her up against the wall with the deceased standing over her. He was yelling at her and abusing her and she was pleading with him. He ran in and told the deceased to "get the fuck off her". The deceased then turned on him and told him to "get the fuck out of the house". When he said that he would not leave without his mother, the deceased had screamed "I'll kill you", after which he felled David with a punch to the head.
As the Court of Appeal said, it was a fundamental part of the appellant's case that she had become, by the time of the killing, a clear example of the condition known as the "battered woman's syndrome" [21] . In support of this contention at the trial the appellant called evidence from Dr Kenneth Byrne, a consultant psychologist. It was his opinion, based on the history which he obtained from the appellant, that she was indeed a typical example of the battered woman's syndrome. Dr Byrne said that the syndrome comprised a "collection of responses, thoughts, feelings and attitudes" which compelled the woman who was the subject of the syndrome meekly to comply with the batterer's wishes without giving any logical thought to her own rights. It entailed a belief on the part of the woman that she could never free herself from the enforced domination of the man, and an induced fear that, if she did not comply with the wishes of the man, it would only serve to worsen her plight. She thus becomes the subject of a "learnt helplessness" which drives her into submission, accompanied by a "learnt hopefulness" that, if she submits, matters will improve.
The defence of provocation based on the evidence to which I have referred was also advanced by the appellant in the alternative to self-defence.
In answer to the appellant's claims at the trial and in the Court of Appeal the Crown made these submissions:
(a) That this was a pre-planned killing in which the participants had, pursuant to that plan, dug a grave, rendered the deceased comatose by drugging his food, discussed the method of executing the "kill" and then ruthlessly carried it out. Such pre-planning, it was said, was the antithesis of self-defence or a killing through loss of self-control.
(b) That the killing was cold-blooded and premeditated appeared clearly from the evidence of the son Paul, and one Robert Dalziel, each of whom said that, well before the killing, the appellant had sought to solicit his services to kill the deceased. (There was indeed evidence to this effect.)
(c) That the appellant's claim of fear of the deceased up until the night of the killing was an extravagant over-statement which did not match some of the statements which she was recorded as making on the intercepted telephone conversations which were before the jury. In those recorded conversations the appellant could be heard telling her friends that she and the deceased had been living independent lives for some years before the night of the killing. Nowhere was she heard to say that she had been subjected to repeated abuse in the years before the killing. Thus, in one conversation, taped shortly before her arrest, she was heard to say: "ten or fifteen years ago, I could have throttled the shit out of him, but not in the last couple of years. We just did not talk." (Again this is a correct summary of, and a quotation from part of the evidence.)
(d) That on at least two nights per week, the appellant had established a habit of socialising separately with her friends. (There was evidence to this effect.) Whatever may have been the situation in earlier years, it no longer prevailed at the time of the killing.
(e) That the appellant, in her evidence, did not suggest any particular words or deeds which triggered the killing. Her evidence was simply that it was "more of the same". Although Mr Albion had given evidence of specific abuse of the appellant and himself on the night of the killing, the appellant had not given any such evidence, nor had she been cross-examined by Mr Albion's counsel to suggest that such events had occurred.
The first argument advanced by the appellant was that the acquittal of her son required that the appeal be upheld on the ground that the two verdicts were so inconsistent that they could not stand together. It is convenient to deal with this submission later.
The Court was referred to Ryan v The Queen [22] to support the next submission. This was that if regard be had to the course of events leading up to the death of Mr Osland, it could readily be seen that there was no act of the appellant which could have been selected by the jury as the, or an, act causing death: that the trial judge had failed to draw attention to this matter and that it was his Honour's duty to do so even though the defence case may not have been presented on this basis at the trial. The appellant's counsel concedes that this point was also not taken in the Court of Appeal.
A related submission was that the appellant's liability (if any) was derivative only: that unless the appellant's son, Mr Albion, who struck the fatal blow or blows was convicted of murder, the appellant, whose role was subsidiary because she did not strike the blow, could not be convicted of murder.
In my opinion, in a case of this kind, a case of actual participation in all phases of the crime it was not necessary nor is it necessary to resort to the shifting and often inconsistent decisions of other courts over the years in which the distinction between principals and accessories in various degrees has been drawn. The history of the distinctions is fully discussed in Smith's Modern Treatise on the Law of Criminal Complicity (1991). The distinctions generally owe their existence to technical and substantive differences with respect to modes of trial, jurisdiction, punishment and benefit of clergy, all matters of diminished or no importance in modern times. For more than a century, legislative attempts have been made to simplify the law in these areas. This Court should not reverse that process.
The common law originally divided all crimes into three categories: treasons, felonies and misdemeanours. It was only in relation to felonies that there were different levels of participation recognised by law. Originally, the categories of participation were principals, accessories before the fact, accessories at the fact and accessories after the fact. The reason for the lack of differentiation between the parties in misdemeanours and treasons was said to be that treasons were regarded as too serious, and misdemeanours as not serious enough, to justify such fine distinctions.
The distinguishing feature of accessories at the fact was their presence at the commission of the crime. Accessories at the fact were described as "aiding and abetting" the commission of the crime. Accessories before the fact were referred to as having "counselled or procured" the crime. Different penalties were typically imposed for the various classifications of participation.
These classifications also had important procedural implications. Accessory liability was in essence derivative. This necessitated conviction of the principal to ground a case against other participants. Further, there were important implications for jurisdiction.
Later, accessories at the fact became described, for purposes of classification, as principals in the second degree. Smith describes this as a judicial manoeuvre designed to do away with the situation that the accessory might escape liability simply because the principal had not been convicted [23] . Bromley CJ in R v Griffith [24] is probably the author of one of the first statements (or possibly the statement) reflecting a changed approach:
[N]otwithstanding there is but one wound given by one only, yet it shall be adjudged in law the wound of every one, that is, it shall be looked upon as given by him who gave it, by himself, and given by the rest by him as their minister and instrument. And it is as much the deed of the others, as if they had jointly holden with their hands the club or other instrument with which the wound was given, and as if they had all together struck the person that was killed. So that it cannot be well termed that they, who gave the wound, are principals in deed, and the other principals in law, but they are all principals in deed, and in one same degree. 1. Smith, A Modern Treatise on the Law of Criminal Complicity (1991), pp 24-25. 2. (1553) 1 Plowd 97 at 98 [75 ER 152 at 155].
Along similar lines, Bracton had earlier written [25] :
the wound, the assistance and the instigation together form a single deed: there would be no wound had there been no assistance, and neither wound nor assistance without the instigation. 1. Bracton (Trans Thorne), ii, p 392.
(i) participants in various degrees would be eligible for trial, although the "doer" may not have been convicted; and,
(ii) there were various implications to the defence of benefit of clergy. None of them is relevant to contemporary Australia.
The law says that if two or more persons reach an understanding or arrangement that together they will commit a crime and then, while that understanding or arrangement is still on foot and has not been called off, they are both present at the scene of the crime and one or the other of them does, or they do between them, in accordance with their understanding or arrangement, all the things that are necessary to constitute the crime, they are equally guilty of that crime regardless of what part each played in its commission. In such cases they are said to have been acting in concert in committing the crime. (Emphasis added.) However, in R v Demirian [5] , McGarvie and O'Bryan JJ said: In none of the other cases did the court decide that all persons present at the crime and acting in concert were to be treated as principals in the first degree. What was decided was that all were liable to be convicted of the crime. 1. [1972] VR 560 at 560. 2. [1989] VR 97 at 124.
The current provisions of s 323 of the Crimes Act 1958 Vic (as amended in 1981) read:
A person who aids, abets, counsels or procures the commission of an indictable offence may be tried, indicted or presented and punished as a principal offender.
If it were necessary to decide the point I would be inclined to hold that the practical effect of the section is to make it irrelevant to decide whether the accused actually struck the blow or did a final act to complete a crime. The section appears to eliminate the need for a trial of a person formerly thought to be an accessory only, to await and depend upon the attainment or conviction of the principal. The one exception would be punishment which will always look to the particular role of an offender in carrying out a crime.
No matter whether the section is to be taken as procedural or substantive, (a matter which it is not necessary to decide), there is no modern need for any difference in the test to determine the liability of a participant (as a principal in the first degree if that nomenclature still be appropriate) from that provided by Brennan J and McHugh J in Royall v The Queen [8] . Their Honours adopted a test of sufficient significant contribution. In the present case the contribution of the appellant consisted of the preparation of the grave, the planning of the killing with the son, the choice of a curry which would disguise the drug, the drugging of the husband's food, the encouragement of him to eat it, the discussion with her son concerning the choice of weapon, her presence at the precise time and place of his slaying, the holding of the deceased, and the planning of each of, his burial, the concealment of his grave and the disposal of his car.
Having regard to these features of the evidence, most of them ultimately uncontested, the appellant was plainly and directly, and in material ways, closely implicated in the killing of her husband. She made a significant contribution to that killing. In her evidence in chief she expressly adopted the contents of her third interview with police officers. It may therefore perhaps be taken as the best version for the appellant of these events. It was certainly evidence on which the jury could act. Yet even on this version the appellant admitted that, whether a preconceived plan [to kill Mr Osland] would be carried out on the evening of his death depended on her husband's mood when he came home: that they [she and Mr Albion] agreed to get a bar (a bat being rejected as being not substantial enough for their purposes); that she ground up the sleep inducing tablets and mixed them in the curry she had prepared; and that when Mr Osland fell asleep she held him down, either while her son struck and killed the victim or immediately after he had struck the deceased. All of these facts involved the appellant sufficiently directly and significantly in the cause of Mr Osland's death.
Royall v The Queen [9] is a case in which this Court considered the issue of causation in a murder charge arising under the Crimes Act 1900 NSW, s 18. There Brennan J said:
The basic proposition relating to causation in homicide is that an accused's conduct, whether by act or omission, must contribute significantly to the death of the victim [10] . It need not be the sole, direct or immediate cause of the death. However, when death is not caused directly by the conduct of the accused but by something done by the victim or by a third person in response to the conduct of the accused, there is a question whether the chain of causation has been broken. 1. (1991) 172 CLR 378 at 398. 2. R v Pagett (1983) 76 CrApp R 279 at 288.
And as McHugh J in the same case pointed out [11] , causation is a question of fact. His Honour added:
In most criminal cases, the issue of causation is not controversial. If an accused's act or omission is causally linked with the event or occurrence, it is always only one of the conditions which were jointly necessary to produce the event or occurrence. Ordinarily, however, the application of the commonsense test of causation is enough to determine whether the accused's act or omission was sufficiently significant to make him or her "causally responsible" for the event or occurrence in question. 1. Royall (1991) 172 CLR 378 at 441
By the application of such a practical test, the appellant's conduct undoubtedly contributed significantly to the victim's death. She was, with her son, causally responsible for the death. The assessment of the significance of her participation in the acts leading to the victim's death was entirely a matter for the jury. But there was abundant evidence, some of which I have summarised or quoted, which entitled the jury to convict the appellant as a principal, or as one of two persons who together directly caused or at least, significantly contributed to the deceased's death.
It was next submitted that the trial judge erroneously made no attempt to distinguish between the respective states of mind of Mr Albion and the appellant at the time of the administration of the death blow or blows. The submission was that in the circumstance that it was accepted on all sides that Mr Albion was the person who actually inflicted the blow, the distinction was important and should have been drawn in the trial judge's charge.
The direction of the trial judge was, in my opinion, an appropriate response to the way in which the case had been conducted. No application for any such direction or for a redirection along these lines was made. Furthermore, there were sufficient references in the summing-up to the need to consider the guilt of the appellant and her son, and the respective states of mind of each separately to enable the jury to draw any distinctions that they thought they should. No objection was taken to these. It did not follow that the jury were bound to reach the same conclusion with respect to each of the accused. Moreover, as to the appellant's intention there could have been little doubt. Practically everything the appellant did shortly before, but especially after her husband arrived home was deliberately and carefully directed to that end. At least, it was clearly open to the jury on the evidence to so conclude.
I return now to the first submission that the acquittal of Mr Albion on a second trial was so inconsistent with the conviction of the appellant at the first trial that the latter cannot be allowed to stand. The argument was put that the case had been presented as one of two parties acting in concert and that the appellant's counsel at the trial had accepted, indeed effectively adopted that approach.
The first authority to which the appellant referred was R v Darby [12] . Counsel read to the Court a passage from the joint judgment of Gibbs CJ, Aickin, Wilson and Brennan JJ [13] which states:
In the light of the wealth of both academic and judicial consideration that has been devoted to this topic in recent years, we have no doubt that this Court should now redirect the common law of Australia on to its true course. It should determine that the conviction of a conspirator whether tried together with or separately from an alleged co-conspirator may stand notwithstanding that the latter is or may be acquitted unless in all the circumstances of the case his conviction is inconsistent with the acquittal of the other person. In our opinion such a determination will focus upon the justice of the case rather than upon the technical obscurities that now confound the subject. 1. (1982) 148 CLR 668. 2. R v Darby (1982) 148 CLR 668 at 678
However that statement certainly does not mean that identical verdicts must, as a matter of law, be reached in a joint trial on the same counts whatever the differences charged. Nor does it mean that separate trials of co-defendants have to be viewed in the same way as joint trials. Or that the same verdicts must always be reached in respect of people apparently similarly complicit in a particular crime whether tried separately or jointly.
The appellant then relied on some statements in King v The Queen [14] . The ratio in that case is stated in the following passage:
[W]here two persons are tried jointly upon the one charge as participants in the same degree, it does not inevitably follow that both must be convicted or both must be acquitted [15] . The evidence may be sufficient to prove the case against the one accused beyond reasonable doubt, but be insufficient to prove the case against the other. In that event, the conviction of one and the acquittal of the other involves no inconsistency [W]here there is no material distinction in the evidence admissible against each accused to establish an element to be proved against both, different verdicts may be inconsistent. Inconsistency appears only if the acquittal of one and the conviction of the other is to be accounted for by the making of different findings as to the common element. 1. (1986) 161 CLR 423 at 433-434, per Dawson J. 2. R v Darby (1982) 148 CLR 668
That case is also distinguishable on the facts. There one of the accused was convicted and the other acquitted at a joint trial. There is an important distinction between an acquittal and a disagreement by a jury. As was pointed out during argument in this Court the jury may have simply been immovably divided on a question whether Mr Albion should be convicted of manslaughter or murder having regard to his lesser involvement in conceiving, planning and executing the death of Mr Osland [16] . I do not accept that the jury's failure to agree upon a verdict in relation to Mr Albion at the joint trial can be regarded as repugnant to the verdict of guilt in respect of the appellant. I cannot accept therefore the appellant's submission that such a disagreement may, for the purposes of determining an issue of inconsistency, be equated with a verdict of acquittal.
Surujpaul v Reginam [17] , upon which the appellant relied in this connexion, is clearly distinguishable. That was a case of one trial of five people. At the end of it, although all of the accused (including the appellant) were acquitted of murder as principals, and the other four of being accessories before the fact, the appellant was found guilty as an accessory before the fact to murder. It was the acquittal, and, I would emphasise, acquittal of everyone, of murder that made a guilty verdict of accessory to murder offensive to the law as to logic. In those circumstances there was, for juristic purposes no murder in respect of which any one of the accused could have been an accessory.
Nor does R v Storey [18] assist the appellant. That case turned on entirely different considerations including the admissibility of evidence given at a previous trial and the directions that the trial judge should have given in relation to it.
It was put for the appellant that she and her son were referred to in identical terms in the learned trial judge's summing up and that it therefore followed that any result of the trial that was not common to both was legally unacceptable. As a corollary, it was said that the trial judge should have given explicit instructions which required the jury to distinguish between the two of them. The judge's directions reflected the way in which the case had generally been conducted. No point was taken at the trial on these matters. As I have already pointed out, the trial judge more than once gave directions which required the jury to consider separately the guilt or innocence of each of the accused. He was correct to do so. No objection to that course was taken by trial counsel.
Nothing turns on the acquittal of Mr Albion in the second trial when he was tried alone. The record of that case is not, and cannot be before us. However, it would not be at all surprising if there were quite different evidence called and submissions made in that second trial where Mr Albion faced the jury alone, without the difficulties for his case presented by the evidence of motivation and planning by his mother.
The next submission for the appellant was that, although on the issues of provocation and self-defence the trial judge admitted the evidence by the clinical psychologist concerning the typical features (for example, emotional and physical submission, reticence in revealing acts of cruelty and threats by a domineering male to a woman, and an ultimate inability to bear any more of these) of a woman in the position of the appellant, his Honour's directions to the jury in regard to those matters had been defective.
At the forefront of the appellant's case on appeal with respect to the directions of the trial judge on this question was a contention that directions should have been given in accordance with, or analogous to, the directions discussed and prescribed by the Supreme Court of Canada in Malott v The Queen [19] . The reasons of Major J in that case, which followed earlier consideration of the "battered woman syndrome" in the Supreme Court of Canada in Lavallee v The Queen [20] , show that his Lordship and the courts in Canada may regard "battered woman syndrome" as a separate defence. The passage to which reference was made shows that the Supreme Court of Canada was there dealing with a case, like this one, in which expert evidence had been called [21] .
The admissibility of expert evidence respecting battered woman syndrome was not at issue in the present case. The admissibility of the expert evidence of Dr Jaffe on battered woman syndrome was not challenged. However, once that defence is raised, the jury ought to be made aware of the principles of that defence as dictated by Lavallee [22] . In particular, the jury should be informed of how that evidence may be of use in understanding the following:
The submission for the appellant that this Court should adopt a new and separate defence of battered woman syndrome goes too far for the laws of this country. There is no such separate defence in Australia. A trial judge will be constrained by any expert evidence given in a particular case with respect to these matters. Alternatively, if these are not matters for expert evidence, but matters in relation to which there is a growing community awareness, (as incidentally, I think there may be) then they are matters for a jury to decide with proper assistance from the trial judge. In some cases they may be matters both of expertise and common sense as they undoubtedly were here. The appellant gave evidence of as many instances of cruelty and imposition as she could remember, and she explained why she was reticent about them, and also why, despite them, she became reconciled from time to time with Mr Osland. The jury would have been conscious of the fact that, as in all cases of homicide, the deceased was not able to give his version of events which might have been markedly different from the two accused.
The psychological evidence given by Dr Byrne was not given in a vacuum. It was called and given by him in the context of, and by reference to, the appellant's own evidence. It could have had no other cogency. The trial judge's summing up on these matters was given in the same context. In those circumstances the summing up was both appropriate and adequate. Indeed, it was not an unsympathetic direction to the appellant on these matters.
It is appropriate to quote at some length from the directions which the trial judge gave:
You may use the battered woman syndrome if you accept that Heather Osland was within it, to reach conclusions about her behaviour, that is her failure to leave at an earlier time, her acceptance of the promises by [Mr] Osland of reform of his conduct, the learned helplessness and hopelessness, the effect on her memory, and the abuse and the other matters instanced.
You have to weigh those matters up against the facts as you find them to be, because the facts as you find them will either give the necessary support to Dr Byrne's conclusions, or, if you do not accept all of those facts or the substantial ones, the relevant ones, to destroy or diminish the opinion.
Issues of her memory and other matters will be considered by you in the light of the whole of the evidence. Mrs Osland herself in effect, in respect particularly of the final day, said that she had blocked these matters out of her memory. On the other hand the reality is that evidence was given in great detail of abuse, physical and psychological, on a month by month basis over a period of years. These issues are facts all for you.
But it may not matter to you whether she fits within the syndrome at all. It is after all only words to describe behaviour and consequences which occur in a relationship, extrapolated to erect some propositions for scientific purposes. It is the behaviour that you should focus on, as disclosed by the evidence, and whether or not in the light of my instructions to you, concerning self-defence and provocation, you are satisfied that the Crown has negatived those defences.
This primarily means considering, first, whether Mrs Osland and David Albion believed that Frank Osland was a then threat to their lives and safety, and if they did, whether they believed that on reasonable grounds, that is self-defence. It will involve considering whether or not they killed him when experiencing a loss of self-control, what might possibly be regarded such loss of control that an ordinary person in those circumstances, that is their circumstances, might experience. But you might, for example, use the battered woman syndrome to reach a conclusion that the Crown had not satisfied you, when Mrs Osland participated in his killing, that she had not finally snapped or reached a point where control was lost in response to a final provocation; and that as a woman who had been, as they would contend, degraded and beaten down over a period of years, that her reaction was that of an ordinary person in that situation. In the light of that provocation you may - and it is entirely a matter for you - not have much difficulty in concluding, if you accept Mrs Osland's and all the others' evidence, that she was at least at some stages a battered woman within the syndrome. Or even if no one had ever thought of the syndrome or sought to establish it. The real problem may not be the issue of the syndrome, but in deciding whether or not the facts, the evidence, admit of self-defence through fear of an impending attack or admit a finding of loss of control that is the failure of the Crown to exclude them.
You might think that a sufficient number of the characteristics of the battered wife or the typical characteristics of the relationship or of the battering male had been established by the evidence. You may also be of the view that many perhaps of the consequences for the woman, described by Dr Byrne, have occurred in this case: changes in thinking ability, avoidance symptoms, increased alertness or arousal, learned helplessness. But what you may find more difficult - or, if not more difficult, the critical thing to decide and reach a view about - is to connect those matters to the killing in this case, because of the way in which it occurred: that is, planned, if you think it was; use of drugs to induce helplessness, if you think it was, as against to calm him down; no significant abuse in the days preceding or the relevant day, if you view that evidence in that way; or the other side of it, ample abuse and threats; or no behaviour out of the norm, even if you regard it as unacceptable behaviour.
There was no evidence that in the case of a battered woman it may be some relatively minor incident that might cause her to react in a way that ordinary people would not, in the murder context, but which, because she is a battered woman, does produce a response that would not otherwise be thought to be based on reasonable grounds. It would be open to you, however, in the provocation context to consider whether or not there might be some relatively minor act of abuse - I do not mean trivial, but relatively minor act of abuse - which was, as it were, the last straw that breaks the camel's back and which produced a sudden loss of control for a woman in her circumstances that might possibly have caused her to react as she did, and which might cause an ordinary person in the circumstances in which she was to do so. You will find the answers to these conundrums in the evidence which you decide to accept and in the light of the instructions as to self-defence and provocation which I will now give to you.
As appears from the extracts from the trial judge's charge which I have quoted, his Honour moulded his directions to accord with the facts of the case before the Court. He was plainly correct to do so. In the end, it was for the jury to decide whether the deplorable conduct of her husband as recounted by her had actually occurred and whether, in the circumstances, it justified the response of the appellant. It was open to the jury to accept or reject the contentions of the appellant and of the psychologist on these matters. Their verdict of guilty in her case strongly suggests that this is what the jury did.
The appellant complained that the summing up on self-defence was defective. However, when the submissions are analysed they really come down to these matters: that although the directions with respect to self-defence were in terms accepted as being entirely unexceptionable, (and there were no very specific complaints about the trial judge's explanation of provocation), his Honour should have given those directions at a different point in his summing up. It was put, in effect, that his Honour's comments and directions with respect to the psychologist's evidence and other evidence concerning the appellant's relationship with her husband should have been given after he had directed the jury on the legal principles governing the defences rather than before them.
I cannot accept this submission. The trial judge's summing up properly and fairly dealt with these matters in an order which seemed to him to be appropriate, and in a way which an appeal court is not entitled to criticise.
Some other complaints were made in written submissions to the Court relating to the language used by the trial judge in discussing, both during the evidence and the summing up, the "battered woman syndrome", a term I use by way of shorthand only. These complaints involved no more than a choice of language. These are matters of semantics and are not open to legitimate criticism in the context of the case as a whole.
There were some complaints about the summing up which I regard as being more specific: that the trial judge should not have referred to the appellant's doctor (to whom complaints of violence had not been made) as "trusted" and, that his Honour should have dealt differently with the likelihood or possibility of a connexion between Mr Osland's repeated anal rape of the appellant and her recurrent condition of cystitis or urinary tract infection and her failure to complain of that imposition to the doctor. The summing up was a long, fair and detailed one. Even if it were not possible to regard the doctor as not being the appellant's trusted medical practitioner, in the sense of his having given long-standing care and treatment to the appellant, a reference to him in those terms, and the way in which the trial judge referred to the absence of complaints to him could not possibly invalidate the trial. Those matters are far too minor to attract such a consequence.
It was said that the trial judge's directions with respect to the way in which the respondent dealt with lies told by the appellant were defective. Once again no exception was taken at the trial to these directions.
Right from the outset, his Honour indicated that he regarded the lies told by the appellant as going to her credibility, and not as evidence of consciousness of guilt. Senior counsel for the appellant at the trial foreshadowed that it would be part of her case that her client had "lived the lie" of the deceased's disappearance. She addressed the jury on that basis. In the absence of the jury, his Honour observed to the prosecution:
You did not make any submission to the jury or make any reference to the consciousness of guilt. The question was answered in the negative by the prosecutor.His Honour proceeded: The lies you have referred to are just credibility lies. The prosecutor affirmed that to be so.
His Honour then said that he did not propose to give any directions as to consciousness of guilt as the Crown was not relying upon lies told by the appellant in that way and the case was conducted on that basis.
Accordingly, when his Honour directed the jury about the "cover-up" he did so by referring to the "essential mendacity of Heather Osland".
I do not read his Honour's charge on this subject, taken as a whole as affording any basis for a submission that the jury were left to utilise the appellant's lies as possible admissions of guilt.
In such circumstances the trial judge was not bound to give any further directions regarding the appellant's lies. None were sought.
There is no substance in the appellant's written submissions that the tapes and transcripts of the intercepted telephone calls should not have been admitted because of their disproportionate, prejudicial effect. As the Court of Appeal said, the evidence was highly relevant and probative.
Other complaints of minor misdirections were made. They too related for the most part to matters of expression. Read in the context of the summing up as a whole they were unexceptionable as indeed they must have appeared to counsel for the appellant at trial who there sought no redirection with respect to them.
A submission was finally made that some evidence objected to as hearsay was wrongly rejected. That evidence (mainly of prior consistent complaints) apparently intended by the appellant's counsel as a pre-emptive strike against a possible line of questioning by the Crown was rightly rejected although much of it, in any event, later found its way into evidence.
It follows from what I have said that there was no aggregation of errors to require that this appeal be upheld. Furthermore, the Court of Appeal carefully reviewed the evidence as a whole to conclude that the verdict was not unsafe and unsatisfactory. They have not been shown to be in error in so concluding. My own review of the evidence brings me to the same conclusion.
Furthermore, having now read the judgment of McHugh J, I agree with his Honour's reasoning and conclusion that those acting in concert and present at the scene are liable for the acts of each other.
Osland
The Queen
High Court of Australia Gaudron, McHugh, Gummow, Kirby and Callinan JJ Osland v The Queen [1998] HCA 75
The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party: in the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of a principal in the second degree where that party, being present at the scene, aids or abets its commission [25] . But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission [26] . It is to be observed that in this passage reference to presence at the scene was made with respect to the case of a principal in the second degree. The reference was not repeated when dealing with liability established by reason of a common purpose. Rather, in a footnote, the Court, by way of comparison, referred to the statement of principle by Smith J in R v Lowery and King [No 2] [27] . Smith J did propound the principle in terms involving a presence at the scene of a crime. 1. (1995) 183 CLR 108 at 113-114, per Brennan CJ, Deane, Dawson, Toohey and Gummow JJ. 2. See Giorgianni v The Queen (1985) 156 CLR 473 3. cf R v Lowery and King [No 2] [1972] VR 560 at 560, per Smith J. 4. [1972] VR 560 at 560.
No case was cited in which a person who did not actually perpetrate, or was not one of those who actually perpetrated, the crime, but who acted in concert with the actual perpetrator at the time and place of the crime, was held to be a principal offender. None of the cases described by Lanham [31] as cases in which those acting in concert while present at the offence were "in effect" treated as principals in the first degree, decide that as a matter of law such persons are necessarily principals in the first degree. [32] 1. [1989] VR 97 at 123. 2. (1980) 143 CLR 108. 3. The cases cited are R v Kalinowski; R v Timbury (1930) 31 SR(NSW) 377; R v Surridge; R v Surridge; R v Harris (1942) 42 SR(NSW) 278; R v Smith [1963] 1 WLR 1200[1963] 3 All ER 597and R v Vandine [1970] 1 NSWR 252 4. Referring to Lanham, Complicity, Concert and Conspiracy, Criminal Law Journal, vol 4 (1980) 276. 5. R v Demirian [1989] VR 97 at 123-124
[W]here a person has been killed and that result is the result intended by another participant, the mere fact that the actual killer may be convicted only of the reduced charge of manslaughter for some reason special to himself does not, in my opinion in any way, result in a compulsory reduction for the other participant. This statement is conclusive in England, at all events, in showing that it is the acts, and not the crime, of the actual perpetrator which are attributed to the person acting in concert. If the latter person has the relevant mens rea, he or she is guilty of the principal offence because the actus reus is attributed to him or her by reason of the agreement and presence at the scene. It is irrelevant that the actual perpetrator cannot be convicted of that crime because he or she has a defence such as lack of mens rea, self-defence, provocation, duress or insanity. 1. R v Howe [1987] AC 417 at 426, 436, 438, 446, 458. 2. [1987] AC 417. 3. [1974] QB 776. 4. R v Howe [1987] AC 417 at 458
(1986) 161 CLR 423
(1982) 148 CLR 668
(1991) 172 CLR 378
(1985) 156 CLR 464
(1977) 137 CLR 633
(1978) 140 CLR 342
(1922) 30 CLR 246
(1995) 183 CLR 108
(1980) 143 CLR 108
(1985) 156 CLR 473
(1955) 93 CLR 493
(1993) 178 CLR 193
(1991) 171 CLR 468
(1997) 191 CLR 275
(1986) 161 CLR 315
(1984) 38 SASR 45
(1960) 103 CLR 486
(1989) 167 CLR 94
(1998) 194 CLR 286
(1995) 183 CLR 58
(1987) 162 CLR 645
(1991) 56 SASR 114
(1996) 5 NTLR 96
(1990) 171 CLR 312
(1991) 180 CLR 531
(1993) 67 ALJR 510
(1965) 114 CLR 82
(1978) 140 CLR 108
(1998) 197 CLR 316
(1997) 191 CLR 439
(1996) 190 CLR 348
(1964) 111 CLR 665
(1977) 137 CLR 517
(1998) 194 CLR 395
(1997) 191 CLR 334
(1989) 168 CLR 110
(1989) 166 CLR 283
(1967) 121 CLR 205
(1978) 140 CLR 364