CRIMINAL PRACTICE - trial - request by one accused for direction that jury bound to acquit if not satisfied of joint criminal enterprise - potential unfairness to other accused
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Catchwords
CRIMINAL PRACTICE - trial - request by one accused for direction that jury bound to acquit if not satisfied of joint criminal enterprise - potential unfairness to other accused
Judgment (4 paragraphs)
[1]
Solicitors:
Solicitor for Director of Public Prosecutions (Crown)
PJM Lawyers (Accused Bloodsworth)
Sydney Criminal & Traffic Lawyers (Accused Errington)
File Number(s): 2015/255218; 2015/254857
[2]
Introduction
On 25 October 2016, after all counsel had addressed but before I had commenced my summing up, Mr Price, who appeared on behalf of the accused Bloodsworth, sought the following direction:
"If you find that there was no agreement between Ms Bloodsworth and Mr Errington to commit the crime as charged, you must acquit the accused, Ms Bloodsworth, of murder and manslaughter."
The giving of the direction in those terms was not opposed by the Crown but it was opposed by Mr Carroll, who appeared on behalf of the accused Errington.
The basis of Mr Price's request was that the Crown had put its case against both accused on the basis of joint criminal enterprise and that there was no evidence that the accused Bloodsworth had actually done any physical acts that caused the death of the deceased.
Mr Carroll opposed the giving of the direction and contended it had a tendency to cause an imbalance between the two accused which was both unwarranted and prejudicial to the accused Errington. He submitted that the only basis on which it could be concluded that the accused Errington was the one who had done the physical acts, or at least some of them, that had caused the death of the deceased, was the admissions he made in his recorded interview and to Mr Barbara. He submitted that as this evidence was not admissible against (or in favour of) the accused Bloodsworth, it would be wrong to insinuate that she could obtain the benefit of those admissions by giving such a direction.
At the conclusion of argument I refused to give the direction but indicated that I would revisit the question at the conclusion of my summing up, if it was still pressed. Before I invited the jury to commence its deliberations, I asked counsel if there was any matter in my summing up that they wished to correct or anything further which they wished me to add. Mr Price reiterated his request for a direction in the form set out above. Mr Carroll continued to oppose the direction being given and the Crown also indicated that it opposed the direction being given (which was a change from its earlier lack of opposition, which I take to have been brought about by Mr Carroll's submissions). I refused to give the direction sought by Mr Price and indicated that I would provide reasons for my decision later. What follows are my reasons for refusing to give the direction sought by Mr Price.
[3]
The Crown case and the respective cases of the two accused
The notice of prosecution case filed and served pursuant to s 142 of the Criminal Procedure Act 1986 (NSW) attached the Crown Case Statement. It concluded:
"The Crown case is that both accused were part of a joint criminal enterprise the object of which was to inflict at least grievous bodily harm on the deceased."
The Crown in its opening did not refer at all to joint criminal enterprise. It merely foreshadowed, by way of summary extracted effectively verbatim from the Crown Case Statement, what the evidence would disclose. At the end of the fifth day of the trial, 20 October 2017, when almost all of the Crown evidence had been adduced, I raised with the Crown how it put its case against the accused Bloodsworth in order that I could prepare my summary up of the Crown case in the summing up on that basis. Mr Crown responded (tr. 381):
"CROWN PROSECUTOR: Joint criminal enterprise. And in relation to that, an unspoken agreement can arise obviously between them during the course of the incident and indeed by simply being present. But we say there is a joint criminal enterprise between them and that can be inferred from the circumstances."
In the absence of the jury, also at the end of the fifth day, Mr Price summarised the accused Bloodsworth's case as follows (tr. 383):
"That there was no joint criminal enterprise, no agreement, no actions in accordance with it leading up to and at the time of expiry of the deceased. Her actions were purely after discovery. We say there is equal inference in relation to that and all her criminality can be sheeted home to her panic and helping her and her boyfriend get away.
There is no evidence of any direct role of hers admissible against her, any act of violence, any tying up or any assault. And there is no direct evidence against her of any omission on her part that would have resulted in the death. We say there is simply no intent by her to commit grievous bodily harm by way of her actions or by joint criminal enterprise."
The first time the jury heard the expression "joint criminal enterprise" was in the Crown closing address, when the Crown said, at tr. 457:
"The accused, that is both accused here, have been charged with the murder of the deceased, Jay Cerin. The accused are tried jointly on the basis of what's called joint criminal enterprise. Where two or more people carry out a joint criminal enterprise, each is responsible for the acts of the other in carrying out that crime. I will give you an example. Say a bank robbery, two people decide to commit a bank robbery, an armed bank robbery. One is the getaway driver. He stays outside. The other fellow goes in with a gun and robs the tellers, gets the money and comes out, and the getaway driver drives him away. In relation to that crime, which would be armed robbery, both accused are equally guilty of that offence. Here what the Crown says is that that principle of joint criminal enterprise says that both of these accused are guilty of murder.
A matter for you, members of the jury, entirely; but in relation to the evidence of what occurred at this unit with Jay Cerin, there is no doubt that he was tied up, trussed up like a hog. You will see that in the photographs, which are very graphic. There is no doubt that he was hit around the head, that's what they call blunt force injuries, because he had bruising all over his face and head. There is no doubt he was stabbed in the arm, which I will come back to later, but you will find that there is no doubt that that occurred. There is no doubt he was moved into a bedroom at the rear of the house and left there. There is also no doubt that later when they came back he was dead. I will refer to medical evidence in relation to that, as to how long he would have lived. The degradation of this man is, you might think, members of the jury, of the highest order. That the accused were showing a disdain for the welfare of this man is obvious."
[Emphasis added.]
The Crown relevantly continued at tr. 459:
"In relation to that hogtying, if you then look at photograph 182. Unfortunately, 181 shows the full extent of the hogtying. They have tied his ankles, they have pulled his legs up and they have tied his legs, pulled up, to his wrists. For whatever reason that was done, as far as Professor Duflou is concerned, that contributed significantly to his death. And that's what the Crown has to prove. The Crown has to prove that what they did was the significant cause of death. Not the only cause death, but the significant cause of death. You will have no doubt, members of the jury, I expect, to find that that occurred."
[Emphasis added.]
At tr. 461, the Crown said:
"Now, a person may be guilty of murder notwithstanding that the immediate cause of death is the act of the co-accused, in other words, if you find that Errington did most of this and Bloodsworth assisted him, she is equally guilty of murder, going back to the principle of joint criminal enterprise and the bank robber."
[Emphasis added.]
Before the Crown finished its closing address, I provided to the jury, after consultation with counsel, a document (MFI 18) in which I set out the elements of murder and manslaughter germane to the trial. Of present significance, the elements for murder in the document were set out as follows:
"1. The crime of murder has been committed by the accused if the Crown has established beyond reasonable doubt each of the following two elements:
(1) that it was the deliberate act of the accused (either individually or pursuant to a joint criminal enterprise) that caused the death of the deceased; and
(2) that the act of the accused which caused death was done with an intention to kill the deceased; or to inflict grievous bodily harm (which means really serious harm) upon him; or with reckless indifference to the deceased's life."
[Emphasis added.]
All counsel accepted that this document accurately set out the elements of murder in the present case (where it was agreed that no issue of provocation or self-defence need be raised).
Mr Carroll addressed the jury in accordance with his opening and submitted that, while the accused Errington accepted moral and physical responsibility for the deceased's death, he ought be acquitted of murder as he did not intend to cause grievous bodily harm and acquitted of manslaughter because hog-tying, the cause of death, neither carried with it an appreciable risk of serious injury, nor would a reasonable person in the position of the accused have realised that the act causing death carried an appreciable risk of serious injury. Mr Price addressed the jury in accordance with what he had foreshadowed on 20 October 2017 in the absence of the jury.
In the summing up I explained the principles of joint criminal enterprise, which largely restated the principles as set out in R v Tangye (1997) 92 A Crim R 545 at 556-557, which were cited with approval by McHugh J in Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 at [73] and have been accepted generally since as the guiding principles. I referred in the summary of evidence to the forensic evidence which detected the accused Errington's DNA on the ties by which the deceased was hogtied and on the pot which also contained the DNA of the deceased, which was said to be what caused the blunt force injuries to the deceased's head.
I also referred to various admissions made by each accused. In particular I referred to admissions made by the accused Bloodsworth which suggested that she was liable as a principal for the acts which caused the death of the deceased, which included the following:
1. The evidence that at some time during the night of Friday 28 August 2015 and the morning of Saturday 29 August 2015 the accused phoned Dennis Rigley (a former partner and continuing associate) and said, "I fucked up. I'm really scared. I think he's dead." Mr Rigley said, "I don't want to hear about this shit" and hung up. [Emphasis added.]
2. The further evidence of Mr Rigley that at some time on the weekend Mr Rigley collected Ms Bloodsworth from the 7-Eleven store in Kingswood and took her back to his place. She told him, "I fucked up." According to Mr Rigley the accused Bloodsworth showed him her phone, the screen of which was black. She played the audio on the phone. Mr Rigley heard a male voice, with a menacing tone, saying, "I told you to get something to put in his fucking mouth". According to Mr Rigley, Rhiannon turned the phone off and asked him what she should do and he responded, "Go to the cops." She did not do so.
3. The evidence that the accused Bloodsworth rang Luke Duncan (a former partner and continuing associate), mentioned "187" (apparently a code used in the United States for murder) and said, "You helped your cousin." Mr Duncan explained in his evidence that one of his cousins had been "done" for murder. The past and continuing association between the accused Bloodsworth and Mr Duncan was such as to ground an inference that the accused Bloodsworth was herself implicated in a murder and considered herself to be entitled to call on Mr Duncan's help as she found herself in the same predicament as Mr Duncan's cousin.
4. The evidence that the accused Bloodsworth rang her sister, Ms Stecum, at 5.19pm on Saturday 29 August 2015, mentioned code "187" for murder and said: "They tied him up and poured bleach down his throat." The use of the plural "they" implied that it was more than one person who tied the deceased up. As there was no suggestion that anyone other than the two accused were present in the deceased flat when the acts of tying occurred, this statement could be regarded as an admission that she was involved in tying up the deceased with the accused Errington.
5. The evidence of Leiah Munnings (the partner of the accused Errington's best friend, Chris Barbara) that the accused Errington had said, in the presence of the accused Bloodsworth, that he was looking at "40-50 years", to which Ms Bloodsworth responded that she was the one looking at "affray". The jury could infer that the use of the word affray, which connotes the use of physical violence, amounted to an admission of the accused Bloodsworth's physical involvement in the acts that caused the deceased's death.
6. The evidence of Terrence Fensom (a friend of the accused Bloodsworth) that at some stage over the weekend, the accused Bloodsworth rang Mr Fensom and told him in this call that the night they got kicked out, "they" had stabbed and bashed Trent's brother because he had tried to rape her. Rhiannon told Mr Fensom that the brother had died as a result of the stabbing and bashing. She said that Trent had also poured bleach down his throat. She said to Mr Fensom, "I might as well tell you because he's yelling it out anyway". Although Mr Fensom accepted, in cross-examination from Mr Price that she said "he (meaning Trent) bashed and stabbed him to death", it would be open to the jury to accept Mr Fensom's evidence in chief that she had spoken in terms of the plural.
For present purposes, the only material differences between the positions of the two accused were:
1. some forensic evidence implicated the accused Errington, but not the accused Bloodsworth, in that his DNA and that of the deceased was found on the pot with which it is alleged the deceased was hit and the ties by which the deceased was bound; and
2. the accused Errington's admissions as to his involvement were generally more explicit and were made not only to third parties with whom he was associated but also to investigating police in the course of the recorded interview, whereas the accused Bloodsworth's admissions as to her involvement were made to third party associates only and were, in some respects, less explicit as to her own involvement.
The Crown's use of the plural and the passive in its closing address was consistent with its submission that both accused were parties to a joint criminal enterprise. It did not at any time resile from the proposition that both accused had played an active part in the killing of the deceased. The acceptance by all counsel of my formulation of the elements of the offences is also significant in that I expressed the element in terms of the requirement that "it was the deliberate act of the accused (either individually or pursuant to a joint criminal enterprise) that caused the death of the deceased".
Joint criminal enterprise is a form of principal liability and is to be distinguished from the so-called derivative liability of accessories before and after the fact: Osland v The Queen at [72]-[73] (McHugh J).
If I had acceded to Mr Price's request for a direction in the terms set out above, it would have created an imbalance between the two accused which was not warranted by the way the Crown put its case against them, or by the evidence. As referred to above, there was evidence which implicated each of the accused in the acts causing death, whether by admissions (in the case of both accused) or forensic evidence (in the case of the accused Errington). A giving of such a direction would have tended to create unfairness to the accused Errington and carried with it the (false) implication that the jury could use his admissions (to third parties and in his recorded interview) in favour of the accused Bloodsworth. The prohibition on the tender of admissions by one accused against another in s 83 of the Evidence Act 1995 (NSW) is fundamental: see Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 at [60] (French CJ, Bell, Gageler, Keane and Gordon JJ). The need to maintain and emphasise the importance of the direction that the jury cannot use such evidence, which is admissible as an admission against one accused, in the case of the other accused, is critical to the fair trial of each, in circumstances where the trials are heard together.
For these reasons I refused to make the direction sought by Mr Price on behalf of the accused Bloodsworth.
[4]
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Decision last updated: 27 October 2017