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[2001] QCA 272
Court of Appeal (Qld)
2001-07-20
McMurdo P, Moynihan J and Dutney JSeparate reasons for judgment of each, member of the Court, Moynihan J and Dutney J concurring as to the orders made, McMurdo P dissenting
Original judgment source is linked above.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Box & Martin [2001] QCA 272
PARTIES: R / v / BOX, Gary / (appellant) / MARTIN, Robert Francis / (appellant)
FILE NO/S: CA No 304 of 2000 / CA No 307 of 2000 / SC No 400 of 2000
DIVISION: Court of Appeal
PROCEEDING: Appeal against conviction
ORIGINATING COURT: Supreme Court at Brisbane
DELIVERED ON: 20 July 2001
DELIVERED AT: Brisbane
HEARING DATE: 23 March 2001
JUDGES: McMurdo P, Moynihan J and Dutney J / Separate reasons for judgment of each member of the Court, Moynihan J and Dutney J concurring as to the orders made, McMurdo P dissenting
ORDER: Appeals against conviction dismissed
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – JOINT TRIAL OF SEVERAL PERSONS – where application for separate trials rejected – where statements made by co-accused highly prejudicial to accused – where evidence in question is discreet and appropriate direction given – where assumption that jury follows directions – no miscarriage of justice. / CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – INTOXICATION – where accused on trial for murder – whether misdirection - where trial judge phrased direction in terms of whether the accused had the capacity to form the requisite intent as opposed to whether they had formed the intent - s 28 Criminal Code – no misdirection when read in context of summing up. / CRIMINAL LAW – GENERAL MATTERS – ANCILLIRY LIABILITY – COMPLICITY – AIDER AND ABETTOR – whether failure to give direction that intoxication or stupefaction are matters which could be taken into account in deciding whether an aider under s 7 Criminal Code had the necessary awareness of the committers intention to kill – where the effect of intoxication on awareness is a matter for common sense experience and within the ordinary knowledge of the jury – where no specific direction is required. / CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS – GENERALLY – where lies by accused – whether adequate direction given as to the use to be made of the lies with respect to a consciousness of guilt – where adequate direction given. / CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS – GENERALLY – where lies by accused – whether no particular standard of proof applied to a finding that a lie was evidence of a consciousness of guilt / CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS – GENERALLY – where misdirection with respect to suggestion that the accused bore the onus of establishing an innocent explanation for prior lies (false statements) – application of the proviso in the context of an otherwise overwhelming case against the accused. / CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – HOMICIDE – MURDER – PRACTICE AND PROCEDURE – ALTERNATIVE VERDICTS – DIRECTION TO JURY – WHERE EVIDENCE TO SUPPORT VERDICT OF MANSLAUGHTER – whether failure to issue direction that jury could convict on the alternate count of manslaughter if unsatisfied that the aider was aware of the committers intention to do grievous bodily harm amount to a miscarriage of justice – where not specifically identifying one route that the jury may arrive at a lesser verdict does not amount to a miscarriage in the circumstances. / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE EVIDENCE CIRCUMSTANTIAL – whether verdict unsafe – where sufficient circumstantial evidence to sustain verdict. / Criminal Code s 7, s 28(3) / Brennan v The Queen (1998) 101 ACrimR 214, considered / R v Davidson [2000] QCA 39; CA No 369 of 1999, 28 July 2000, considered / R v Edwards (1993) 178 CLR 193, considered / R v Gilbert (2000) 109 ACrimR 580, considered / R v Hughes (1994) 76 ACrimR 177, considered / R v Kusu [1981] QdR 136, considered / R v Lowrie and Ross [2000] 2 QdR 529, considered / R v Richens (1993) 4 AllER 877, considered / R v Wehlow [2001] QCA 193; CA No 210 of 2000, 25 May 2001, considered / Webb v The Queen; Hay v The Queen (1994) 181 CLR 41, considered / Wilde v The Queen (1987-88) 164 CLR 365, considered
COUNSEL: J McLennan for the appellant Martin / K M McGinness for the appellant Box / N V Weston for the respondent
SOLICITORS: Legal Aid Queensland for both appellants / Director of Public Prosecutions (Queensland) for the respondent
McMURDO P: I have read the reasons for judgment of Dutney J in which the relevant facts and issues are set out.
I agree with Dutney J for the reasons he has given that the failure to order a separate trial in respect of the appellant Martin did not result in a miscarriage of justice. The learned primary judge clearly identified the evidence against Box which was not admissible against Martin and gave careful directions to the jury as to its use on two occasions during the evidence and subsequently during the summing-up.
I also agree with Dutney J that, for the reasons he has given, the directions as to the relevance of intoxication on the appellants' intention to kill or do grievous bodily harm were not flawed.
The learned primary judge was not required to give a specific direction that intoxication was a matter to be considered when determining whether an aider under s 7 Criminal Code knew that the killer intended to kill or do grievous bodily harm at the time of the aiding. Sub-section 28(3) Criminal Code does not require such a direction and see also R v Kusu.1 The jury were well aware from the learned primary judge's directions that they must be satisfied that the aider knew the killer intended to kill or do grievous bodily harm at the time of the aiding before convicting the aider of murder. It is self-evident that "knowledge" is subjective and in determining each appellant's knowledge the jury would of course consider all relevant facts found by them, including each appellant's state of intoxication; no special direction to this effect was required in this case.
I turn now to the appellant Box's contention that the jury should have been warned against using the lie as evidence of a consciousness of guilt of murder because it might equally be explicable as a consciousness of guilt of the offences of either manslaughter or accessory after the fact to murder or even accessory after the fact to manslaughter.
The learned primary judge's directions included the following:
"As to whether the lie was told from a consciousness of guilt, you have to consider whether that lie was explicable only on the basis that the truth would implicate the accused Box in the offence of murder.
…
Now, there may be reasons for the lie apart from a realisation of guilt. I am sure you can think of reasons. People sometimes lie because they wish to conceal disgraceful behaviour other than that which goes to the offence charged. … In this case you need to be satisfied that the accused was lying because he was unable to account innocently for his involvement in the killing of [the deceased], and, more specifically, that he was lying because his involvement amounted to the offence of murder.
One explanation that might account for the telling of the lie to the police is the one that was suggested to you yesterday by Mr Walsh of counsel, that is that Box wanted to hide his involvement in disposing of the body and cleaning up the flat because that made him an accessory after the fact to murder. Another explanation for the lie could be that the accused Box wanted to protect Martin. There are other explanations that may occur to you." [my emphasis]
In giving such a direction, it is imperative that the judge make it sufficiently clear to the jury that the lies were told out of a realisation that the truth would implicate the appellant in the offence of murder rather than something less, such as manslaughter or accessory after the fact to murder: see R v Wehlow2 and R v Richens.3
In this case, the emphasised words in the judge's directions set out above make it plain that the lie could be used as a consciousness of guilt if the lie was only explicable on the basis that the truth would implicate Box in the offence of murder and that the jury must consider other reasons for the lie, such as Box's involvement as accessory after the fact. Although the further alternative that Box lied because he unlawfully killed the deceased but without intending to kill or do grievous bodily harm (manslaughter) was not specifically put to the jury, the primary defence case was that Box was an accessory after the fact to Martin's killing of the deceased: cf Wehlow. The jury were also told that they could return a verdict of not guilty to murder but guilty to manslaughter. The judge's directions to the jury limited the use of the lie to consciousness of guilt of the offence of murder; it was not suggested the lie could be used to demonstrate a consciousness of guilt of manslaughter or of a lesser offence such as accessory after the fact; on the contrary, the jury were told that if there was any other explanation for the lie, it could not be used as consciousness of guilt of murder. It may have been preferable had the judge's directions specifically warned the jury that the lie could not be used as a consciousness of guilt of murder if the lie was told to conceal involvement in an unlawful killing without an intention to kill or do grievous bodily harm, but it is not necessary to mention every possible reason for the lie. The directions were clear that the jury could use the evidence of lies as a consciousness of guilt of murder only if they were satisfied the lies were not told to conceal some other disgraceful behaviour such as accessory after the fact (the defence case) or, by implication, manslaughter, which the jury understood was an alternative verdict.
The learned primary judge, in saying "If you are satisfied of any explanation for the lie you cannot regard the lie as part of the circumstantial case against Box", misdirected the jury as to the onus of proof: see Brennan v R.4 The directions set out earlier demonstrate the learned primary judge elsewhere correctly informed the jury as to the onus of proof as to using the lie as proof of consciousness of guilt and it is unlikely the jury were confused on this point. The case against Box was convincing and were this the only misdirection I would not be satisfied that any miscarriage of justice had resulted.
The appellants contend that the learned primary judge erred in failing to direct the jury that the appellants could be guilty of manslaughter if one aided the other without knowledge of the other's intention to kill or do grievous bodily harm to the deceased.
The appellants rely on the following italicised comments of McPherson JA, with whom Davies JA agreed, in R v Lowrie and Ross:5
"In instructing the jury in such a case, it is, I consider, ordinarily sufficient to direct that, once a participant in such an assault becomes aware that life threatening force is being used by one or more of the others, he or she is, by continuing to assist in the assault, liable to be found guilty if the victim's death results from injuries inflicted by any of the participants. In applying this approach to such a case, it is of course, necessary to bear in mind that it is proof of the existence of the requisite state of mind or knowledge on the part of the participant that is decisive of responsibility for the offence that ensues. If that element is not established in the case of a particular offender, he will not guilty of murder, although he may and probably will, … be guilty of manslaughter."
[my emphasis]
The learned primary judge correctly told the jury that the appellants could only be found guilty of murder if one killed the deceased intending to kill or do grievous bodily harm to her and the other assisted, knowing at the time of doing so that the other was intending to kill or do grievous bodily harm to the victim; it was not necessary to prove which one physically caused the death: R v Lowrie and Ross.
The learned primary judge then immediately told the jury that a verdict of manslaughter was open to each appellant if he did not have the intention to kill or do grievous bodily harm, referring specifically to the evidence of intoxication or stupefaction.
Unfortunately nowhere in the otherwise careful directions as to s 7 Criminal Code, did the learned primary judge explain to the jury that an appellant who aided the killer, knowing that life-threatening force was being used by the killer but not knowing the killer intended to kill or do grievous bodily harm, would be guilty of manslaughter, not murder. Such a conclusion was open on the evidence, for example if the jury considered that the hypothesis, that the aider believed the killer was using life-threatening force to the deceased to frighten or intimidate rather than to kill or cause grievous bodily harm, was not disproved by the prosecution beyond reasonable doubt.
Although the case against each appellant was convincing, the appellants may well have lost the chance of an acquittal on murder through this significant misdirection. Had the jury known of this alternative path to a conviction for manslaughter, it is at least possible that they would have returned a verdict of manslaughter rather than murder in respect of either or both appellants: see R v Gilbert.6 It cannot be said there has been no miscarriage of justice arising from the failure to give this direction.
In considering whether there should be a new trial for Martin on murder, it is necessary to consider the appellant Martin's final contention that the verdict against him was unsafe. The following evidence is sufficient to justify a verdict of guilt of murder in Martin's case.
Box, Martin and the deceased were together on the afternoon and evening of 29 June at Martin's premises.
During the evening neighbours heard an argument involving the deceased and the appellants.
During the course of the evening there was aggressive arguing and loud male voices in Martin's unit.
Between 11pm and 12 midnight two people were seen pushing and pulling a wheelie bin through Lutwyche, in the vicinity of Martin's unit.
At about 6.30am on 30 June a body was found in Kedron Brook.
The lid of a wheelie bin was found slightly upstream.
Compression of the neck was the primary cause of death.
Considerable force was applied to the deceased's neck over a period of a minute or two to cause the changes to the skin of the neck.
In the absence of any exculpatory evidence, this combination of evidence is sufficient to allow a properly instructed jury to conclude that Martin either killed with intent to do grievous bodily harm or aided Box, knowing that he intended to kill or do grievous bodily harm.
I would allow both appeals, set aside the convictions and verdicts, and order a new trial on counts 1 and 2.
MOYNIHAN J: The appellants’ appeal against their conviction for murdering Linda Jane Henry on or about 20 June 1999. They had been jointly charged and the appellant Martin was charged in the alternative with being an accessory after the fact to murder and pleaded guilty to this count. The prosecution did not accept the plea in discharging the indictment and the trial proceeded. It emerged that Box’s case was to the effect that Martin committed the murder and Box was an accessory after the fact.
The facts and circumstances relevant to the appeal are set out in some detail in the reasons of Dutney J and it is unnecessary to repeat the exercise here. In my view there is ample evidence on which the jury could be satisfied that one or other of the appellants had killed the deceased woman intending to do that or to cause her grievous bodily harm or had assisted the other to do so being aware of the others intention to kill or cause grievous bodily harm. For those reasons it cannot, in my view, be said the verdict against Martin was unsafe.
In that context her Honour’s direction at p 403 of the record could have left the jury in no doubt that they could not convict both of murder unless they were satisfied of the “aiders” awareness of the person committing the murder having the requisite intention. In the light of these considerations and the circumstances of the killing there was no obligation on the trial judge to specifically identify the way in which the jury could have reached a verdict of accessory rather than of murder or of accessory to manslaughter.
I agree with what Dutney J has said about the directions bearing on the distinction between capacity and intention in considering intoxication, as to the use of a lie against Box and as to proof.
I am not persuaded that the statements made by Box to the witness Shorrock were such as to take the case outside the considerations canvassed in cases such as Webb v R; Hay v R (1994) 181 CLR 41 and Davidson [2000] QCA 39. The directions given in respect of the use of the evidence are not criticised.
The appeal should be dismissed.
DUTNEY J: The appellants, Gary Box and Robert Francis Martin, were jointly charged with murdering Linda Jane Henry on or about 20 June 1999. Martin was charged in the alternative with being an accessory after the fact to murder, a charge to which he pleaded guilty. The Crown rejected the plea to the alternative plea and both appellants were convicted of murder.
The notice of appeal for appellant, Box relied on these grounds:
“1. The learned trial Judge erred in finding an interview between Police and the Appellant on the 7th of July 1999 was self-serving and as a consequence thereof the Defence were prohibited from cross-examining in respect of that interview.
The learned trial Judge erred in not giving full meaning to Section 10(a) of the Criminal Code in not allowing the Jury to consider a verdict of accessory after the fact to murder against the Appellant.
As a consequence the Defence were prohibited from cross-examining in respect of an interview between the Appellant and the Police on the 7th July 1999.
The learned trial Judge erred in not allowing the Defence to cross-examine in respect of-:
A taped conversation between the Appellant and the witness Karen Shorrock in the Brisbane Watch House of 7th July 1999.
A taped Record of Interview between the Appellant and Police at which Karen Shorrock was present on 7th July 1999.
A taped conversation between the Appellant and Police in the Brisbane Watch House on 8th July 1999.”
The appellant, Martin, appealed on these grounds:
“(a) That the learned Trial Judge erred in ruling against applications for a Trial separate from that of the accused Gary Box. The evidence admissible against Box, inadmissible against me, was so prejudicial that a reasonable jury would have been unable to carry out the learned Trial Judge’s direction to disregard it.
That the verdict was unsafe and unsatisfactory. The evidence established guilt in relation to the alternative count of being an accessory after the fact to murder. It was unsafe and unreasonable on the admissible evidence to infer beyond a reasonable doubt that I was a party to the offence at the time of the killing.”
In the written outline of submissions the appellant, Box abandoned the grounds of appeal contained in the notice of appeal and sought and was given leave to substitute the following:
“(a) the learned trial judge erred in failing to direct the jury as to the relevance of the accused’s intoxication to his knowledge of Martin’s intention to kill or cause grievous bodily harm to Henry.
the learned trial judge erred in the directions given in respect of the relevance of intoxication to intention.
the learned trial judge erred in the directions given as to lies capable of evidencing a consciousness of guilt.
The learned trial judge erred in the directions given as to flight.”
The appellant, Martin, relied on (a) and (b) in the preceding paragraph in addition to the grounds in his own notice of appeal.
At the commencement of the hearing of the appeal a further ground was added by leave and relied on by both appellants, namely:
That the learned trial judge erred in failing to direct the jury that the accused could be guilty of manslaughter if he aided the other without the knowledge of the other’s intention to kill or do grievous bodily harm to the deceased.
The facts alleged against both appellant’s may broadly be summarised as follows:
The body of the deceased was found lying face down in Kedron Brook around 6.30 am, Wednesday, 30 June 1999 by an early morning walker. Ms Henry’s wrists and ankles were bound by adhesive tape. A post mortem was conducted on 1 July at 9.15 am, and revealed a woman in her early forties, 162 cm tall and weighing 76 kg. External examination showed bruising on the backs of both hands and both forearms, bruising and lacerations inside the lips, bruising to the left bicep, grazes to the left leg and hip, deep bruising and a graze on the chin, and an irregular laceration about an inch long to the back of the head on the right side. These injuries appeared to be fresh.
Significantly in respect of the cause of death, around the entire neck there was a horizontal band of red discolouration and this was associated with bruises, scratches and grazes. These injuries indicated an application of force around the neck by the application of a ligature. Dissection showed injuries to the internal structures of the neck. These included bruising to the right side of the Adam’s apple and also between some of the layers of muscles on the right side. There were two fractures of the voice box, one on each side, associated with a small amount of bleeding.
Ms Henry was found to be suffering from atherosclerosis, and to have consumed alcohol, morphine and other drugs prior to death. The pathologist’s opinion was that death was due to compression of Ms Henry’s neck, with contribution from the coronary atherosclerosis and alcohol and drug toxicity. Compression of the neck was the main cause of death, with the other factors rendering the person more vulnerable to the effects of neck compression.
In the opinion of the pathologist considerable forced was applied over a period of a minute or two, sufficient to cause observable changes in the skin of the deceased.
The marks around the deceased’s neck provided no definitive answer. However, an electric cord followed by a dog chain were not excluded from the range of possibilities. The possibility of the combined force of hands and a ligature was also not excluded.
There was evidence showing that Box, Martin and the deceased had been together on the afternoon of 29 June. There was evidence that the three were arguing during the afternoon and that at least two men continued arguing in Martin’s unit on the evening of 29 June. A neighbour heard loud male voices and a loud banging.
There was unchallenged evidence that at some time between 11pm and 12 midnight two persons were pushing or pulling a wheelie bin through the streets of Lutwyche. Slightly upstream from where the deceased’s body was found the lid of the wheelie bin was found wedged against a pylon.
The next morning the appellant, Martin, was seen to be hosing the laundry area of the flats; Box had borrowed a vacuum cleaner from a neighbour. Martin was seen with a trolley of washing and was talking to Box.
In the case against Box, it was also alleged that he confessed his role in the murder to Karen Leslie Shorrock; that he fled from police when they arrived at Martin’s residence on the evening of 1 July 1999; and that he lied to police in interviews recorded on 2 July when he said that he knew nothing about what had happened to the deceased after about 5 pm on the evening of 29 June.
Shorrock gave evidence that she saw Box at Caboolture, following two telephone calls from him. He was carrying a newspaper containing reference to the murder of Henry, and two other murders. He indicated involvement in all three.
With respect to Ms Henry’s death Box said that she was causing some trouble for him and his friend. He said that Martin had tried to kill Henry with a jug cord and that the jug cord had snapped. He was sent down for a dog chain under the house, which he gave to Martin, who then strangled Henry with it. Box was then sent to look for a bin of some kind, which he found at a Church. Box then said they laid the bin down, put Henry in it, and following a discussion Henry was put in Kedron Brook.
Shorrock was cross-examined about earlier versions given by her in a statement and at committal proceedings, where she had not said that Box acquired the chain at Martin’s request, nor had she said Box had to get a wheelie bin. Shorrock agreed that she had previously said that Box had attributed the death to Martin and that he didn’t see it happen or know it happened until he had come into the room, and thereafter he assisted in the removal of the body.
Shorrock explained the variations in her account as being due to heroin intoxication when being questioned by police, short-term memory loss as a result of drug use, and difficulties with drug rehabilitation at the time of the committal hearing.
The defence case, as revealed through the cross-examination of Shorrock, was that Box was guilty to being an accessory after the fact to a murder committed by Martin. The same case was conducted on behalf of Martin as evidenced by his plea of guilty to the alternative charge.
There was also evidence of the presence of Box’s DNA under the fingernails of the deceased. The evidence did not allow a conclusion as to how the material got there, and that it would be speculative to estimate the length of time that the material was there. The material relating to Box may have been blood or epithelial cells.
There is some overlap between the grounds of appeal set out in sub-paragraphs (a) and (b) above as the argument was presented. Counsel for Box submitted that the trial judge’s directions incorrectly invited the jury to consider whether by reason of intoxication and/or stupefaction the appellants had the capacity to form the relevant intention rather than the correct issue which was whether because of intoxication or stupefaction they or either of them in fact had the intention.
This conclusion seems to me to place somewhat pedantic emphasis on selected parts of her honour’s summing up and to ignore the effect of what her honour said when taken as a whole and in context. The distinction the appellant’s wish to draw is a valid one: see Hughes (1994) 76 A Crim R 177 at 108-1; Cutter v. R (1997) 71 ALJR 638 at 641. Nonetheless what her honour said, in my view, adequately directs the jury as to the real issue for its determination.
At p361 of the record her honour identified what she later referred to as the “requisite intent” as an intention to kill or cause grievous bodily harm. At p366 of the record her honour said:
“Intoxication or stupefaction never excuses an accused’s conduct, but when you are considering the accused Box’s intention to kill or cause grievous bodily harm to Ms Henry, that is whether you can find that there was that intention, you should take into account the extent to which alcohol or drugs affected him. When you are considering whether the accused Martin had the intention to kill or cause grievous bodily harm to Ms Henry, you should take into account the extent to which you can find on the evidence that alcohol affected him.”
Her honour then referred in the next paragraph to “capacity” in these terms:
“A person who is affected by liquor or drugs may still have the capacity to form the necessary intention. If that has happened, then an accused does not escape responsibility because his intoxication has reduced his power to resist the temptation to carry out his intention.”
The directions on intoxication concerning Box then went on as follows:
“The prosecution must satisfy you beyond reasonable doubt that although intoxified or possibly stupefied, Box did in fact have the requisite intention – and you will recall before lunch I said to you that I had used the term requisite intention to refer to the element of the charge of murder – that the committer of the act must have the intention to kill or to cause grievous bodily harm to the victim.
If the prosecution fails to satisfy you that Box had the requisite intention, then you must acquit Box of the charge of murder.”
Her honour summed up the effect of these directions on page 368:
“If you are satisfied beyond reasonable doubt that the accused Box killed Ms Henry but intoxication prevented his forming the necessary intent to kill her or to cause her grievous bodily harm, Box can be convicted of the offence of manslaughter where such intent is not an element of the offence. You might recall this is something that Mr Hunter mentioned to you this morning. Even though the accused Box is not charged with the offence of manslaughter, the Criminal Code permits an alternative verdict of manslaughter where a person is charged with murder but on the evidence the crime of manslaughter is established.”
Apart form the solitary reference to capacity to which I have referred at [42] above and which deals with a slightly different issue, her honour has throughout focussed correctly on what, if any, intention Box had and the effect of intoxication or stupefaction on that.
The effect of the directions in relation to Martin is similar.
Her honour returned only briefly to the topic at page 401:
“It is not enough in this case to be simply satisfied that one of the accused was involved in the killing in order to bring in a verdict of guilty of murder against that accused. This element of intent is an essential element of the charge. If a person who is capable of forming the requisite intent does an act which would have life threatening consequences or would otherwise cause grievous bodily harm, you can infer that by doing that act to the victim the person had the intention to kill or cause grievous bodily harm to the victim.”
The clear effect of this passage was to indicate the distinction between the capacity to form an intention and in fact having an intention by alerting the jury; if they were satisfied of the former of their ability to infer the latter from what was in fact done and the probability that those acts would result in death or grievous bodily harm.
In relation of s 7 of the Code her honour directed the jury at page 361 in accordance with R v Lowrie & Ross [2000] 2 Qd R 529. While it is true that her honour did not refer to intoxication or stupefaction as a matter which could be taken into account in deciding whether the aider had the necessary awareness of the intention of the committer of the killing I do not consider the failure to give such a direction was an error. The effect of intoxication on awareness is a matter of common experience and well within the ordinary knowledge of a jury. Whether someone’s awareness is impeded by the effect of drugs or alcohol is purely a question of fact based on the evidence. The trial Judge may or may not choose to comment on it. There is not, to my mind any issue of law involved about which the jury needs to be instructed. None of her honour’s directions concerning the impact of intoxication on intention is likely to have caused the jury any difficulty in considering the degree of intoxication of either appellant when deciding whether that appellant if an aider, was aware of the others intention in applying the ligature.
The grounds of appeal in [28](c) and (d) above can also be dealt with together. They concern only the appellant Box.
The submission for the appellant, Box, was three fold. Firstly, it was submitted that the jury should have been warned against using the fact of the lie as evidence of a consciousness of guilt of murder because it might equally be explicable by reason of a consciousness of guilt of being an accessory after the fact of murder.
The lie was, in substance, that the appellant, Box knew nothing of the killing. It was, on any view, a false statement.
The circumstances in which a jury might make use of a lie are discussed in R v Edwards (1993) 178 CLR 193 at 210-211 and Brennan v R (1998) 101 A Crim R 214 at 224-225. In R v Wehlow [2001] QCA 193 McMurdo P and Wilson J (Williams JA expressly not deciding the point) held that the consciousness had to be of guilt of the offence of murder before the lie could be used as evidence on which the jury could convict and not simply of involvement in the unlawful killing. The directions given by Her Honour at p391 of the record and which are set out in the reasons of the President do make clear, in my view, the restricted circumstances in which the jury might make use of the lie and I consider nothing further was required.
The second complaint about the direction in this area is that her honour misdirected the jury on the onus of proof. The precise complaint as enunciated by counsel for the appellant, Box, was that by directing the jury in the way she did, namely by telling them that no particular standard of proof applied to a finding that the lie evidenced a conscious guilt, she left open the possibility of the jury being confused by the different standards of proof applicable to evidence included as part of a circumstantial case as opposed to “intermediate” or “ultimate” facts. It is conceded that the direction her honour gave was correct as a statement of law.
The majority in Edwards at p210 dealt with the issue of proof as follows:
“Although guilt must ultimately be proved beyond reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted. If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty. But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilty. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt."
While recognising the need to avoid confusing a jury by references to facts being proved to different standards, I cannot see that by telling the jury that on this matter they did not have to concern themselves with such issues itself tends to confusion. Rather, it seems to me that the direction correctly relieves the jury from any further consideration of the standard of proof in relation to the matter.
The third and final criticism of her honour’s summing up on this issue concerns the statement at p392 line 40:
“Unless you are satisfied of any explanation for the lie you cannot regard the lie as part of the circumstantial case against Box.”
The correct direction was submitted by Mr McLennan for Box to have been:
“If you are satisfied that the only explanation for the accused lying was because he was unable to account innocently for his involvement in the killing of Ms Henry, you cannot regard the lie as part of the circumstantial case against Box.”
The suggested direction would have accorded with what this court said of the onus in Brennan at 225 (per Ambrose J).
It seems to me that the likely meaning to be attributed to her honour’s direction at p392 taken by itself is that in order not to be able to rely on the lie the jury must be satisfied there was some innocent explanation. Thus understood it would be, in my view, a misdirection with scope to mislead the jury.
Her honour had correctly directed the jury as to the onus on this matter both on the same page of the record and only two paragraphs earlier and on the preceding page. On the closely related topic of guilty flight her honour correctly directed the jury at p393 as to the onus.
The importance of clear directions to the jury in relation to the onus of proof in a criminal trial is plainly of utmost importance. Whether in a particular case, however, the effect of an error of the type here is sufficient to result in a retrial where the case against the appellant is otherwise a very strong one falls to be determined on the particular circumstances of the case. In Wilde v The Queen (1987-88) 164 CLR 365 at 373, Brennan, Dawson & Toohey JJ noted:
“But the wording of the proviso is quite general and it is clear that it may be applied notwithstanding a misdirection concerning the law or the wrongful admission of evidence. In the end no mechanical approach can be adopted and each case must be determined upon its own circumstances.”
Her honour has in the direction complained of used a phrase which might suggest that the appellant bore some onus with respect to establishing an innocent explanation for his false statement. Nonetheless, seen in the context of the correct directions preceding it and in the context of the directions concerning flight following it the likelihood of a jury fastening on the impugned sentence is slight. In the context of what was an otherwise overwhelming case against the appellant it is difficult to come to the conclusion that there has been a miscarriage of justice and thus it seems to me to be appropriate to apply the proviso.
I am not persuaded that the failure of the trial Judge to direct the jury that they might convict on an alternative verdict of manslaughter if not satisfied that the aider was aware of the committer’s intention to cause death or grievous bodily harm amounts to an appealable error.
I have already mentioned at [49] above that her honour correctly directed the jury on the need to be satisfied that the aider was aware of the committer’s intention in order to sustain a conviction on the basis of s 7. The direction was repeated at pp403-404.
From the fact of conviction it must be assumed that the jury was satisfied beyond reasonable doubt that each appellant had either himself killed Ms Henry intending to do so or, at least, to cause her grievous bodily harm, or had assisted the other do so while aware that the other intended either to kill her or cause her grievous bodily harm. No other conclusion is consistent with the directions her honour gave in relation to s 7. That her honour did not specifically identify one route by which the jury might arrive at a lesser verdict does not seem to me to assist the appellants in those circumstances. The direction given at p403 could have left the jury in no doubt that if they were not satisfied of the aider’s awareness of the committer’s requisite intention they could not convict of murder. Even if it might have been desirable, therefore, for her honour to have informed the jury that they might convict of manslaughter if they were not able to convict either or both appellants of murder on the basis that they were unable to be satisfied beyond reasonable doubt of the aider’s knowledge of the committer’s intention no injustice has been caused. It is difficult to see how the jury could not have been satisfied of the requisite awareness. On the evidence, to have convicted of either murder or manslaughter as an aider the jury must have accepted that the killing took place inside the small flat, the death involved strangulation with a ligature over a period of about a minute and both appellants were with Ms Henry in the flat. In the case of Box he admitted to Ms Shorrock that he brought the dog chain to Martin to use on Ms Henry. It is hard to comprehend how, if the jury, were satisfied of those things they could have had any doubt about the aider’s awareness of what the other was intending when the aider provided assistance. Were it necessary I would apply the proviso in this instance.
The remaining two grounds of appeal concern only the appellant, Martin.
It is submitted that the rejection by the trial Judge of an application by Martin for a separate trial resulted in unfairness. The unfairness arose from the fact that evidence of statements made by Box to the witness, Shorrock was highly prejudicial to Martin despite being inadmissible against him.
It is accepted that the prima facie approach is that persons charged with jointly committing a crime should be tried together even when there are dangers for an accused by the admission of evidence which would not be admitted at the trial of one accused: see Webb v The Queen; Hay v The Queen (1994) 181 CLR 41 per Toohey J at 89 and R v Davidson [2000] QCA 39.
The prejudicial evidence is briefly summarised at [34] above. The directions given by her honour to the jury as to the use they might make of this evidence are not criticised. I consider this case to fit squarely within the statement of general principle in Davidson at [12]:
“Generally there are strong reasons of principle and public policy why joint offenders should be tried jointly and the mere fact that one result of joinder will be that evidence admissible against one but inadmissible against the other accused will be before the jury is not a reason for ordering separate trials. Moreover the exercise by the trial judge of the discretion conferred by s 606 of the Criminal Code against separate trials for joint offenders is rarely interfered with. That is not to say of course that the facts may never disclose such potential for unfairness that separate trials should never be ordered. But R v Lewis and Baira is an example of a recent case in which an appeal against refusal of separate trials was dismissed in circumstances in which the evidence of one co-accused accused of rape was highly prejudicial to the other.
In Gilbert v The Queen both majority and minority judges agreed that the system of criminal justice as administered by appellate courts requires the assumption that as a general rule juries understand and follow the directions they are given by trial judges. However the majority rejected the assumption that prejudice may not affect the jury’s decision-making. Accepting as we do that there may be some cases in which it is appropriate to order separate trials, even in a case involving joining offences, where the evidence admissible against each accused is impossible or at least extremely difficult to disentangle and the evidence against one is highly prejudicial against the other, and accepting also that there may be cases in which prejudice may cause a jury even to ignore the directions of a trial judge, we do not think that this is such as case.”
I am not persuaded that the failure to order separate trials has resulted in unfairness to the appellant. There is nothing in the nature or extent of the prejudicial evidence against Box which is not admissible against Martin which takes this case out of the usual category. The evidence is clearly identifiable and comprises a discreet body of evidence about which appropriate directions were given.
The final ground of appeal was that the verdict against Martin was unsafe. I have briefly summarised the evidence against him at [31] above. In essence the case against Martin was that he and Box were with the deceased at Martin’s unit on the afternoon of the killing. There was a protracted argument at the flat between two males and a female during the afternoon with arguing continuing late into the night. Late that night a loud thumping noise was heard that continued for between thirty seconds and a minute. Late that same night two persons were seen pushing a wheelie bin through Lutwyche. The next morning Martin apologised to his neighbour for the noise in his unit the night before.
On the evidence I am satisfied that the jury was entitled to find that Martin was involved in the murder either as the committer or as aider to Box. There was in my view a sufficient circumstantial case to sustain the verdict. Martin was present at the flat during the afternoon and on the morning after the killing. It was his flat. The jury could conclude from the evidence of the arguing continuing from the afternoon when Martin was seen to be present into the evening and night, from the fact that he was there in the morning and from his knowledge of the noise during the night that he was there throughout. On the whole of the evidence it cannot in my view be said that the verdict was unsafe.
For the reasons set out above I would dismiss each of the appeals.
ORDERS:
Appeals against conviction dismissed
R
Box & Martin [2001] QCA 272
(1993) 178 CLR 193
(1994) 181 CLR 41