R v Adams; ex parte A-G [1998] QCA 64

The appellant had arranged for the three men who assaulted Von Nida, together with a fourth man, to travel from Sydney and be present at the appellant's premises when Von Nida attended at the appellant's invitation. It is convenient to refer to the other men as the "principal offenders". While Von Nida was still being held, the appellant also hired a car for two of the principal offenders to use to return to Sydney. Immediately after the offences, the appellant and the two other men from Sydney travelled to Innisfail. The appellant booked two motel rooms in Innisfail under a false name and flew to Sydney the following day.

The appellant did not give evidence, but in a record of interview said that he had arranged for the principal offenders to protect him from Von Nida and to "negotiate with" Von Nida. The appellant was aware that one of the principal offenders had a gun. During Von Nida's conversation with the appellant, the principal offenders were in the next room. When the appellant and Von Nida were talking and the appellant was "getting upset", "two of those fellows burst in and pushed me aside and out of the door and started to beat ..." Von Nida, although they "were supposed to be waiting for the meeting to be over". The offences occurred despite the appellant's protests and his pleas on Von Nida's behalf. According to the appellant, he had not authorised the offences and was distressed by them. He tried to intervene, but was threatened.

The appellant's grounds of appeal against his conviction all arise out of the manner in which the trial was conducted with the consent, or at least acquiescence, of both the prosecutor and the appellant's experienced trial counsel. Three aspects of the trial need be noted. Firstly, the prosecution case against the appellant was based entirely on that part of sub-s. 7(1)(d) of the Criminal Code which provides that, when an offence is committed, a person who procures any other person to commit the offence is deemed to have taken part in committing the offence and to be guilty of it and may be charged with actually committing it.[1] Secondly, the jury was instructed that it could only convict the appellant of the offences charged or acquit him. "There is no scope here for an alternative verdict of any kind." Thirdly, in directions summarising the prosecution and defence cases, the case for the appellant at trial was put as follows:

"The defence case, on the other hand, is that ... you would not accept the evidence of [Von Nida] in respect of the participation of the accused in what occurred in that room ... . ... . They also submit to you that at the end of the day you would be left in reasonable doubt whether or not the account given [by the appellant] to the Police Sergeant ... was correct or not, and therefore would accept that account and acquit the accused person."

The prosecution submission was that the jury "would have no doubt in rejecting beyond reasonable doubt the [appellant's] story ... that those men who came to Cairns ... subsequently went on a frolic of their own ... without any participation or encouragement of the accused in the violence used against the complainant".

Earlier, before identifying the legal elements of the offences, the trial judge had directed the jury that it had to be satisfied beyond reasonable doubt that the prosecution "has made out each and every element which must be made out in respect of a particular count. If, at the end of the day, you say to yourselves you are not satisfied beyond reasonable doubt that the Crown has made out a particular element in respect of this accused in respect of a particular count, then you acquit the accused of that count. If, on the other hand, at the end of the day you are satisfied beyond reasonable doubt that the Crown has made out each and every element in respect of a particular count in respect of the accused person, your verdict, in accordance with the oath which you took the other day, would be one of guilty in respect of the count."

It is against that background that the critical passage in the trial judge's summing up must be viewed. After telling the jury that it was not really in dispute that the elements of the offences had been established in respect of the conduct of the principal offenders, his Honour continued:

"So in summary, the principal offences are accepted as being committed against the complainant by the assailants, as I will call them. So how does the accused fit into that picture? Because it is not suggested that he was indeed one of the three assailants.

Our law provides ... that where an offence is committed each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it, that is to say every person who actually does the act which constitutes the offence - that would be the three assailants. And further, any person who procures any other person to commit the offences. What is said here by the Crown is that you should be satisfied beyond reasonable doubt that it was this accused who procured those three men to commit the principal offences. And if you are so satisfied beyond reasonable doubt, then you would convict the accused himself of the principal offences despite the fact that he did not actually commit the offences himself.

Ladies and gentlemen, that is the way that the matter is placed before you as far as the legal aspects of the case are concerned. It then becomes necessary for you to obviously consider the facts of the case. ..."

For present purposes, the most important passages in the trial judge's directions to the jury are the following two statements:

"If, at the end of the day, ... you are not satisfied beyond reasonable doubt that the Crown has made out a particular element in respect of this accused in respect of a particular count, then you acquit the accused of that count."

"What is said here by the Crown is that you should be satisfied beyond reasonable doubt that it was this accused who procured [the other] three men to commit the principal offences. And if you are so satisfied beyond reasonable doubt, then you would convict the accused himself of the principal offences despite the fact that he did not actually commit the offences himself."

The summing-up contained no additional explanation or elaboration of those directions.

Sub-section 7(1)(d) imposes criminal liability on a person "who counsels or procures" another person to commit an offence. Counselling and procurement are not coextensive, but alternatives, and the dicta of Philp J. In R. v. Solomon[2] should not be regarded as authority to the contrary. Procurement involves more than mere encouragement[3] to commit an offence and requires successful persuasion. A person who procures another to commit an offence not only attempts to induce but actually induces the other to do so.

"Offence" is defined in s. 2 of the Code as an act or omission which renders the person doing the act or making the omission liable to punishment. That definition is applicable to sub-s. 7(1)(d).[4] The "act" which the appellant was charged with committing was procuring the principal offenders to do the "acts" which rendered them liable to punishment for unlawful detention and assault of Von Nida in company and armed with an offensive weapon. The appellant argued that the prosecution was required to prove beyond reasonable doubt that he procured the actual conduct engaged in by the principal offenders. At its widest, that argument involves the submission that the jury should have been instructed that the prosecution had to prove beyond reasonable doubt that the appellant specifically procured each individual punishable act performed by the principal offenders.

That is incorrect. When a charge is founded on sub-s. 7(1) of the Code, the accused must be proved to have intended the offence or offences committed by the primary offender, i.e., the primary offender's acts or omissions. Even though s. 9 of the Code facilitates the prosecution's task when a charge against an accused is founded on counselling, the jury must be instructed in such a case to consider what, if any, punishable acts or omissions the accused sought to induce the primary offender to do or omit to do.[5] More generally, proof of an accused's intent for the purpose of a charge founded on sub-s. 7(1) is usually dependent on proof of the state of the accused's knowledge.[6] For a charge founded on procurement, although it is ordinarily unnecessary to prove that he or she knew that the particular acts would be committed by the primary offender and sufficient that the accused knew the type of offences intended,[7] proof is required that he knew the essential facts of the offences or deliberately avoided that knowledge.[8] In Bruce v. Williams, Priestley J.A., with whom Samuels and Meagher JJ.A. agreed, said:[9]

"... Clearly, it will be a matter of the court's evaluation from case to case whether the particular crime committed bore such similarity to that of which the accused had knowledge, to fall within the rule, and no doubt there will be cases where it is difficult to be sure that the rule is fulfilled. ..."

The jury in the present case was given no explanation by the trial judge concerning what it should consider or how it should decide whether the appellant had procured the principal offenders' offences. More particularly, it was given no indication that it was required to determine what the appellant knew and intended. No reference was made to the possibility that the appellant intended that Von Nida only be threatened, not struck, or that he not be struck with weapons, to the possibility that the appellant did not intend that bodily harm be caused to Von Nida, or to the possibility that he did not intend that Von Nida be unlawfully detained or that his assailants be armed. In my opinion, the trial judge's directions to the jury were inadequate. Especially because the jury would likely have been easily persuaded that the appellant procured some offences by Von Nida's assailants, the absence of material detail from the summing-up created a real risk that the appellant was convicted of more serious offences than he sought to procure.

The deficiency in the summing-up is exacerbated by the consideration that the case against the appellant was largely circumstantial and would have been considerably strengthened by the almost certain conclusion by the jury that the appellant had lied. A proper direction concerning the jury's permissible use of the appellant's lies was critical,[10] but no direction concerning lies was given. Such a direction would have included reference to the special difficulty of drawing an inference with respect to the offence of unlawful detention and the circumstances of aggravation in relation to the charge of unlawful assault.[11]

The conduct of the appellant in "importing" thugs from Sydney and then inviting Von Nida to his property for "negotiations", his immediate departure for Sydney with the assailants after Von Nida had been beaten, including his use of a false name, and his blatantly implausible story to police strongly suggest his guilt of procuring an assault on Von Nida.[12] Further, his trial counsel consented to, or acquiesced in, the course of the trial. Nonetheless, in my opinion, the directions to the jury on the critical point in dispute in the trial were seriously deficient. In these circumstances, the Court cannot be satisfied that the appellant did not lose a real possibility of acquittal and that there has not been a substantial miscarriage of justice.[13]

The appeal should therefore be allowed, the appellant's convictions quashed and a new trial ordered.

The appellant was found guilty at his trial in the District Court at Cairns on an indictment charging him with one count of unlawfully detaining the complainant Edward von Nida against his will and another count of assault occasioning bodily harm. In respect of the second count, two aggravating circumstances were also charged, and were found by the jury. They were that, at the time of the assault, the appellant was in company with other persons, and that the appellant was armed with an offensive weapon. He was sentenced to imprisonment for four years suspended for four years after serving nine months of it.

The facts giving rise to the offence are set out in detail in the reasons of Fitzgerald P., which I have had the advantage of reading. In essence, they are that the appellant and the complainant had been involved in business dealings which had given rise to an indebtedness on the part of the appellant to the complainant. On 26 August 1994 at the appellant's invitation, the complainant went to the appellant's house at Deeral to discuss the matter. The discussion took place in a room in that house that was used as an office. When it was over the appellant got up to go saying words to the effect "You shouldn't have threatened me". As he left through a door to the room, three men burst in through that door. One had a stocking over his face, and each of them was carrying a telescopic steel baton, which they proceeded to extend. Their leader told the complainant, "You shouldn't have threatened an elderly man and an elderly woman". They then set about punching and beating the complainant, after which he was kept in the room. A gun was placed at his temple and a blanket was put over his head. Afterwards he was made to help with cleaning up his blood, which had spattered extensively over the floor and walls of the room.

There is no doubt that the complainant had been detained in the room against his will, and had been assaulted and sustained bodily harm, as defined in the Criminal Code to mean any bodily injury which interferes with health or comfort. Those who assaulted him were in company, and one of them was armed with an offensive weapon. The appellant did not himself give evidence, but the defence version of events, which was before the jury at the trial, was in substance that he had arranged to bring the three men from Sydney, not in order to beat up the complainant as in fact happened, but only to provide protection for himself against possible physical harm by the complainant.

Having regard to the way in which the case was conducted at the trial, the primary question for the jury was whether or not the appellant was criminally responsible for the actions of the three men who carried out the beating and detention of the appellant. In accordance with the practice followed in Queensland in framing indictments, each of the counts and the aggravating circumstances in respect of count 2 was formulated in terms that averred that the appellant himself had carried out the acts in question. That accords with the provisions of s.7(1) of the Code, which, in imposing criminal responsibility on various secondary offenders, provides that, in the circumstances specified in paras. (a) to (d) of s.7(1), each of them "is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it ...".

In the present case, there was potentially more than one paragraph of s.7(1) under which the appellant might have been so charged or found guilty of the offences in the indictment. When pressed by the learned trial judge, the Crown prosecutor elected to rely on s.7(1)(d) or that part of it deeming a person to have actually committed an offence "who ... procures any other person to commit the offence". As to that, there was ample evidence on which the jury could have been satisfied, as they evidently were beyond reasonable doubt, that the appellant had procured the three men to do what they did. The complainant was detained, assaulted and sustained bodily harm at the hands of those three men. They had been waiting in the house at Deeral in the adjoining room next to where the discussions were taking place between the complainant and the appellant. They came into the room at the same time as he went out, passing so close to the appellant that, as the complainant said, "they would have rubbed shoulders as they passed in the doorway". Having regard to this and to the fact that the offences took place in the appellant's own house, as well as to evidence of the arrangements made by the appellant to bring the men from Sydney and return them there, it was plainly open to the jury to conclude that their intended function was not simply to protect the appellant from being harmed by the complainant, but to inflict harm upon him, which is what they did.

In these circumstances, there can be no question that the verdicts returned were in any way unsafe or unsatisfactory. At the trial the issue was presented to the jury by counsel on both sides as essentially one of whether they were satisfied to the requisite standard of the prosecution case or, conversely, whether the defence version raised a reasonable doubt in their minds. Relying on the way in which the case was conducted, the learned trial judge directed the jury accordingly. There can be no complaint on that score.

What is said, however, is that the learned judge failed to instruct the jury about the law in relation to s.7(d). He should, so it was submitted, have directed them not to convict unless they were able to determine specifically what it was the appellant had procured or arranged for the three men to do, and that they had done, no more than that to the complainant. In fact, what the trial judge said in giving his directions to the jury was that the prosecution asked them to find that:

"... in all those circumstances, with that evidence taken together, you could be left with only one inference, and that is that the accused was a party to the violence inflicted on the complainant in that room. Indeed, that you could be satisfied beyond reasonable doubt that in all the circumstances he procured that violence and that detention."

His Honour had previously explained to the jury the meaning of bodily harm (which it was conceded the complainant had sustained) as well as the effect of s.7(d), saying that they could convict the appellant if they were satisfied beyond reasonable doubt that it was the appellant who had procured those three men to commit the principal offences "despite the fact that he did not actually commit the offence himself". I do not consider that more than these directions was required by the decision in Barlow v. The Queen (1997) 188 C.L.R.

It might perhaps be thought to have left out of account the matters of aggravation charged in the indictment; but in his direction his Honour dealt specifically with those matters. He also said that the prosecution:

"[asked] you to be satisfied beyond reasonable doubt that the accused had procured the offences alleged in the indictment."

In the result, I do not consider that the directions given to the jury by the trial judge were defective or deficient in any way. The complainant was subjected to detention and also to bodily harm as a result of an assault or assaults perpetrated by the three men. The only question for the jury was whether that outcome had been procured by the appellant. They were satisfied beyond reasonable doubt that it had been. The appeal must therefore be dismissed. I agree with the reasons of Byrne J. for arriving at this conclusion on the principal issue on the appeal, as well as the other questions considered by him.

As to sentence, it is hardly possible to underestimate the seriousness of the offences and the method adopted by the appellant to commit them. The appellant is 68 years of age, with no previous convictions, and he had, we were told, a difficult life in Poland before emigrating here. In sentencing him, the judge plainly took those factors into account in imposing a sentence of imprisonment for four years and suspending it after only nine months. Such a penalty can in the circumstances only be described as moderate, if not merciful. Even the elderly must not be led to suppose that, because of their age or other factors, they may commit offences of this character with impunity. But, for much the same reason and in particular because of the personal circumstances of the appellant himself, I do not regard the matter as one in which the sentence ought on this occasion to be increased. On this and related questions, I agree with what Byrne J. has written.

In my opinion both the appeal against conviction and the application for leave to appeal against sentence should be dismissed. The Attorney-General's appeal against sentence should also be dismissed.

[1] See also sub-ss. 7(2) and (3) of the Code.

[2] [1959] Qd.R. 123, 129 last paragraph.

[3] Cf. Stuart v. R. [1974] HCA 54; (1974) 134 C.L.R. 426, 445; R. v. Oberbillig [1989] 1 Qd.R. 342, 345.

[4] R. v. Barlow (1997) 188 C.L.R. 1 at p. 9 per Brennan C.J., Dawson and Toohey JJ.

[5] Stuart at p. 445; Oberbillig at p. 345.

[6] The case against an accused might be largely or entirely circumstantial - as is this case - necessitating the accused's state of mind to be determined by inference. Because proof beyond reasonable doubt is required, the inference or inferences essential to guilt must be the only inferences available.

[7] Bruce v. Williams (1989) 46 A.Crim.R. 122; R. v. Ancuta [1991] 2 Qd.R. 413, 417-419

[8] Giorgianni v. R. [1985] HCA 29; (1985) 156 C.L.R. 473; Yorke v. Lucas [1985] HCA 65; (1985) 158 C.L.R. 661, 667; Stokes and Difford (1990) 51 A.Crim.R. 25, 38; R. v. Clough (1992) 28 N.S.W.L.R. 396, 399; R. v. T. [1996] QCA 258; [1997] 1 Qd.R. 623, 643; R. v. Jeffrey (C.A. 154 of 1997, unreported, 19 December 1997 per McPherson J.A. at p. 6.)

[10] Edwards v. R. [1993] HCA 63; (1993) 178 C.L.R. 193.

[11] Cf. R. v. M. [1995] 1 Qd.R. 213 at p. 223 (evidence of flight).

[12] If, as seems likely, the appellant is guilty, the sentences imposed seem extremely lenient, even allowing for the personal circumstances of the appellant and his wife.

[13] K.B.T. v. R. (High Court of Australia, FC97/049, 9 December 1997, unreported).