R v CMM No. SCCRM-01-105 [2002] SASC 21

Supreme Court of SA|2002-01-31|Before: Doyle CJ, Besanko JJ, Martin J

Judgment No. [2002] SASC 21

(Court of Criminal Appeal: Doyle CJ, Martin and Besanko JJ)

Court of Criminal Appeal: Doyle CJ, Martin and Besanko JJ

DOYLE CJ I would dismiss the appeals against conviction. I agree with the reasons given by Martin J.

MARTIN J The appellant was convicted by a jury of murder, wounding with intent to do grievous bodily harm and attempted armed robbery. He appeals against the convictions of murder and wounding with intent.

In the early hours of Saturday 10 December 1999, Mr Colin Hillam and the deceased Mr Matthew Bourne walked from the city in a north easterly direction along North Terrace. They were walking along the northern footpath. At about the same time the appellant and four other young male persons were driving away from the city along North Terrace in a motor vehicle which the group had stolen earlier that evening. There was no dispute that earlier in the evening the group had talked of "rolling" someone to obtain a mobile phone. As Hillam and Bourne approached the intersection of North Terrace and Fullarton Road, one of the group in the car saw Hillam speaking on his mobile telephone. In essence, the appellant and the others in the motor vehicle agreed to rob Hillam of his mobile telephone.

The motor vehicle was stopped a short distance behind Hillam and Bourne. The appellant and two other persons, Mr E and Mr A, got out of the motor vehicle. The appellant was already in possession of a cue ball in a stocking. He said he had it with him because of previous trouble at an "under age rave". He thought the same people would come looking for them again. In addition, the appellant armed himself with a knife. A gave his knife to the appellant. During cross-examination the appellant agreed that he made a specific effort to get the knife. As to why he did so, the appellant said:

"A Well, I only had that cue ball in a stocking. I thought if we were going to rob them I couldn't use that to threaten anyone."

The appellant was aware that E regularly carried a knife. He said that both he and E had the knives hidden when they alighted from the motor vehicle. He agreed that when the group got out of the vehicle and walked toward Hillam and Bourne, he was aware that E was carrying a knife. The appellant acknowledged that if the evidence of Hillam was accepted, E must have had the knife in his hand as he approached Hillam. However, the appellant maintained that he did not see the knife in E's hand.

According to the appellant, he did not have any plans as to what he was going to do or when he was going to do it. He thought it would be over really quickly. He anticipated using the knife to threaten Hillam and Bourne. The appellant denied intending to use the knife to inflict any injury. He said he thought E would also use his knife just to threaten and that the possibility that the knife would be used by E to inflict injury or death did not occur to him.

The knives carried by E and the appellant were large. The blade of E's knife was approximately 18 cm in length and had a maximum width of 2.8 cm. The blade of the knife carried by the appellant was not as long as the blade of E's knife, but it had a greater curve and was of similar width. Both knives were particularly dangerous weapons.

Although Hillam had no memory of making a telephone call, it appears that Hillam and Bourne made a call from a telephone box near the intersection. As they left the telephone box and continued walking, the three men moved closer. E demanded the mobile telephone from Hillam. At that time, according to the appellant, E was a couple of metres in front of him. The weapons had not been exposed.

The appellant said that in response to E's demand for the mobile telephone, Hillam said "What mobile" and then "just fuck off, we are going home". These remarks were uttered by Hillam as Hillam and Bourne kept walking away from E, the appellant and A. He agreed that Hillam was saying words to the effect "we are going home, leave us alone". Hillam and Bourne walked across Payneham Road to an area near the front of the Maid and Magpie Hotel. According to the appellant, while they were walking E again demanded the mobile telephone. At that time E was a few metres back from Hillam and the appellant and A were a short distance behind E. The appellant said that when E demanded the phone for a second time, Hillam said something to the effect of "just fuck off, just leave us alone".

Hillam did not give evidence of a demand for the mobile telephone. He said that E first said something along the lines of "what the fuck are you looking at? What are you doing?" and he replied to the effect that they were not looking at anything and were just walking home.

Although their versions are slightly different, the effect of the evidence of Hillam and the appellant is substantially the same. In the face of demands and aggression, Hillam and Bourne kept walking. The three men followed. E was in front and was behaving in a particularly aggressive fashion. He was saying things like "What did you say to us? What did you call me? Do you want a fucking go?"

In the vicinity of the Maid and Magpie Hotel, Hillam turned around and walked backwards. Hillam said the three men were slowly gaining on them and had come within three or four metres. He described what then happened in the following terms :

"A The third time I said 'Leave us alone, we are walking home, we don't want any trouble.' I turned around and said 'Just fuck off, leave us alone, we don't want any trouble', and the guy in the hat said 'What the fuck did you call me?', and he started - started rushing up in my face, and I let go of three punches at his face, and I felt a whack in my side. I looked down and saw him pulling a knife out of me, and I just yelled out 'Run Matt, they've got a knife'."

The appellant did not deny that E rushed at Hillam. He said that Hillam walked backwards a couple of steps and went out of the appellant's peripheral vision. The appellant thought a fight had started between Hillam and E. He said he dropped the knife and put the cue ball in his right hand. As to why he took hold of the cue ball, the appellant said:

"A Basically I thought I could sort of tell a fight was going to start."

A stab wound to the left flank penetrating into the abdominal cavity and lacerating both the colon and the posterior wall of the stomach. The entry point of the wound was approximately 4 cm in length and the wound extended approximately 15 cm from the point of entry to the posterior wall of the stomach. Internal organs were protruding from this wound.

A laceration to the left leg approximately 4-6 cm in length involving the skin and subcutaneous fat. The wound did not involve the muscles or arteries of the leg.

A stab wound to the left chest, the entry point of which was approximately 1.5-2 cm in length. The wound ran in a plane deep to the subcutaneous tissues and on the muscles of the chest wall toward the tip of the left shoulder blade. The wound extended for a distance of approximately 8 cm.

A relatively minor laceration to the outside of the left knee.

Hillam was first aware that E had a knife when he saw it being pulled from his left side leaving the wound through which the organs protruded. He accurately described the knife as similar to a hunting knife with a straight blunt edge and a curved sharp edge. Approximately 15 cm of the 18 cm blade was pushed into Hillam's body.

Hillam sought help from a passing taxi driver. He got into the back of the taxi and urged the taxi driver to get him to the hospital. From the back of the taxi he looked back up the road and saw the deceased in the middle of the intersection being kicked and punched by the appellant and A. He said E was approaching the deceased at that time. Then it appeared to Hillam that all three were punching and kicking the deceased.

The Crown also called two taxi drivers who saw parts of the altercation. Mr Gary Douglas was driving north east along North Terrace and turned left into Payneham Road. He saw a group of people on the opposite side of the road. One of those persons, obviously Hillam, ran towards Mr Douglas pointing to his stomach. He veered around Hillam and kept driving. By way of a fleeting glimpse before veering, Mr Douglas saw three people running in the same direction as he was travelling. Two of them appeared to be supporting the person in the middle with their arms under and around that person's shoulders. A fourth person was positioned about 4-5 metres behind the group of three and appeared to be walking in the same direction.

Mr Jason Durrant was driving in the opposite direction to Mr Douglas. He approached the intersection along Payneham Road. He first observed persons in the middle of the two lanes that make up the left hand side of the road. He thought there were four or five persons involved in a fight. Mr Durrant gave the following evidence :

"Q And can you describe what you saw in terms of the number of people involved and so on.

A There was four men seemed to be in a group, and they were - one of them was getting, like, thrown around, and one other man was kind of separate from the other four, and three men were attacking one man.

Q The other man is the one I want to ask you about at the moment, the one you described as being separate from the group. What did that man do, describe his movements.

A He was - as I drove up, I think he was sort of saying to the four, the three that were attacking one person 'Leave him alone, stop doing this', that sort of thing. And then as I came up he was kind of either walking past my cab or sort of near my cab.

Q To go forward in time, did that person later get into your taxi.

Q And did he sit in the back and did you eventually take him in your taxi to a service station.

Q I want to go back to the other people, the other four. Can you describe what you saw going on with them.

A I saw just - as I drove up, it just looked to me like a fight, like a scuffle, you know, that had gone on to the road. I guess, as I got closer and stopped the car, I could tell that one person was really - was getting harassed really badly by two to three men.

A Well, I saw one of the men hitting one of the other men in the head, a lot of just maybe kicking or throwing, holding, that sort of thing.

A Well, possibly throwing one of them around or pushing them to the ground or something like that.

Q Was there anything distinctive about any of these people in this scuffle or fight that you are talking about in terms of their appearance.

Q And did that person ultimately also end up in your taxi.

Q The person with the purple hair, was he the one that you described as being hit.

Q When you first saw this fight, were the people all upright.

A The man with the purple hair at one stage was like, someone was punching him in the head so he was either bent over or on his knee, or something like that.

Q Where was he at that stage, where was he in relation to the kerb or the gutter.

Q Can you describe the position he was in, how he was situated when you saw him near there.

A He was in - I seem to remember describing it as like he was sort of on one knee, similar to a runner or something like that.

Q Like a runner in the starting blocks, that sort of thing.

Q Is that when the man with the purple hair is near the gutter.

Q When he is in that position, ie, near the gutter, and in a position a bit like a runner, are there any people near him.

A There's one, I can remember one man hitting the man with the purple hair in the head. There may have been another man standing around, or - it was all very quick, like, I can't exactly remember."

Hillam was the first to enter the taxi. Bourne had the purple hair. During cross-examination, Mr Durrant made it clear that he had a memory of the man with the purple hair being attacked, but he was unable to remember the details. Mr Durrant accepted as a "fair statement" that he could not remember much except that it was three persons on to one.

The appellant said that he thought a fight had started between Hillam and E and that Bourne might attempt to assist Hillam. In order to prevent Bourne assisting Hillam, the appellant moved towards Bourne. He said Bourne came towards him at the same time. The appellant said that he took a swing at Bourne with the cue ball and hit him somewhere in his upper body. He said he then started retreating backwards. According to the appellant, Bourne followed and, when he got within reach, Bourne took a wide uncontrolled swing which the appellant managed to duck. Bourne took three more swings which the appellant also managed to duck.

The appellant described the events that followed :

A He wasn't that far away, he sort of quickly came towards me and tried to grab, really grabbed my shirt, I think, with his right hand. With his other arm, he seemed to be going for my neck and I was moving back out on to the road.

Q In which direction; towards the photographer that we can see, to the right or what way.

Q I want you to be quite precise about this, if you can. What hold did Bourne have on you, if any.

A He had one arm on my shirt area, and my jacket, more my shirt he had a hold of, and with the other arm it was like he was trying to go for my neck, and I had a hold of that arm.

Q Which arm do you recall of Bourne's was holding your shirt.

Q When you moved out on to the road, were you moving backwards or forwards or sideways.

Q Were you trying to move backwards or forwards.

A I was trying to move backwards. He was coming towards me and pushing me at the same time, and I was trying to move backwards to get out of his reach.

Q Did you use the cue ball once you were in that position.

A I was sort of swinging, trying to hit him, just to sort of get him off me, sort of thing.

A It's really hard to describe, because my arm was sort of stuck also. I was trying to swing it around so it would come around and on top.

Q Do you recall how many swings you took in that fashion.

Q Do you know if you were connecting with his body or not.

A No, I'm really not - I thought I was connecting, but he didn't seem to be reacting.

A Just that was really the only way I could defend myself really, there was nothing else I could do, sort of.

Q How long did this go on for, with the swinging, as you described.

A I really couldn't say. It seems to be going on for a while, I really couldn't say how long.

Q How long did he have hold of you with his right arm to your shirt.

A A fair while; we seemed to be moving for a fairly long time.

Q Were you aware of anyone around you during the time that you were with Bourne.

Q The dynamics of what you have described between you and Bourne, that is he holding you and you swinging, had they changed at all by the time you got to that area.

A Not really. By that time, I think he had both - he was holding on to my clothes with both hands by that time.

Q Were you aware of anyone else joining in by the time that he was holding your clothes with both his hands.

A He fell backwards, I thought I had stepped on his foot or something, and he sort of fell backwards and pulled me down with him. He seemed to have a fairly tight grip on my clothes.

Q What did you do as he was falling backwards as you describe.

A Not much, I was just sort of pulled down with him and I managed to - I think I was on my knees, I had my right hand on the ground.

A He was holding me, and he wasn't completely laying down, he was sort of crouched up a little bit, and I hit him in the head or face area.

A To get him off my clothes, because he pulled me right down with him.

Q Did you know where anyone else was at the time that you hit him in that area.

Q What position did he end up in once he let go, as far as you can remember.

A I thought we had just sort of had a brawl, sort of thing.

A In the upper body somewhere, I really couldn't say exactly.

A Not, not heaps hard, not that hard, just sort of - I didn't sort of - I didn't sort of like take a few steps back, it was just sort of quick, really quick."

A was jointly charged with the appellant. He gave evidence. He said he saw Hillam throw a few punches at E. He described Hillam as huge and much bigger than E. He said the appellant and Bourne "drifted" beyond his vision and his intentions were initially to help E because Hillam was so much larger. He punched Hillam, possibly twice, in the lower back close to his kidneys, but his efforts were futile. A said he then looked at the appellant and Bourne and saw Bourne strangling the appellant with his hands around the appellant's neck. He may have seen the appellant swing the cue ball once, but it looked as though it had no effect. According to A, he ran to the aid of the appellant. At that time Bourne had "a firm grasp" around the appellant's "neck area" and the appellant was trying to swing the cue ball. A said he punched Bourne in the area of the lower neck and upper shoulder two or three times. The appellant and Bourne then fell to the ground. As they fell, Bourne still had his hands around the appellant's neck. A kicked Bourne three or possibly four times. After the last kick he noticed E had also arrived in the area.

In addition to the fatal wound, Bourne sustained two scalp lacerations caused by blows from a blunt object and a number of abrasions. The fatal wound was a single stab wound to the right side of his chest between the fifth and sixth ribs. The wound was about half way between the waist and the shoulder on the anterior axillary line which is an imaginary line running down from the front of the armpit. The wound was caused by a single edged blade, the sharp edge of which was facing to the rear of the deceased. It was horizontal and passed between the right fifth and sixth ribs causing relatively minor cuts to the right lung. The knife travelled past the right lung and caused a 30 mm long wound in the fibrous membrane surrounding the heart and a 30 mm long puncture wound in the right atrium of the heart. As a consequence of the hole in the heart and the sac around it, blood was able to drain freely from the right atrium of the heart into the right chest cavity. Rapid and continuous blood loss from the heart would have caused dizziness or faintness within a minute or so. Bourne would have died within a few minutes.

As mentioned, the blade of the knife used by E was 18 cm in length. The total depth of the fatal wound was approximately 20 cm. The forensic pathologist gave evidence that the 18 cm blade was capable of causing a wound path of 20 cm with a minor degree of chest compression. In other words, the knife was pushed into the chest of Bourne to the full extent of the length of the blade.

E pleaded guilty to attempted armed robbery, wounding with intent to do grievous bodily harm and murder. The jury was aware of his pleas. He did not give evidence. The trial was conducted on the basis that E stabbed Bourne while Bourne and the appellant were fighting. It was common ground that the blow was struck immediately before Bourne fell to the ground.

There is no appeal against the conviction for attempted armed robbery. In substance, the appellant admitted being part of a joint enterprise to commit that offence. The trial judge presented the jury with "two routes" by which the jury could be satisfied that the appellant was guilty of wounding with intent and common law murder. The first involved joint enterprise. The second basis involved aiding and abetting E.

As to joint enterprise, the trial judge correctly directed the jury as to the concept of joint enterprise. With respect to the application of that principle to the charge of wounding with intent, his Honour correctly directed the jury that the Crown had to prove that the appellant, A and E reached an understanding or agreement that they would rob Hillam, that they would be armed for that purpose with knives and a billiard ball and that the knives and billiard ball would be used, if necessary, to enable them to achieve their purpose. His Honour also directed the jury that the Crown had to prove that when they reached their understanding, they shared a common intention of inflicting grievous bodily harm, or that they contemplated that intentional infliction of grievous bodily harm by one or other of them was a possible incident or a possible outcome of the common criminal purpose.

As to the application of the principle of joint enterprise to murder, his Honour similarly gave a correct direction that the Crown had to prove that the three men either shared a common intention of inflicting grievous bodily harm, or contemplated that the intentional infliction of grievous bodily harm by one or other of them was a possible incident or a possible outcome of their common criminal purpose of armed robbery.

Although it was not a ground of appeal, senior counsel for the appellant mounted a tentative challenge to those directions. He accepted that the directions, read literally, were correct. However, he suggested that the directions were potentially erroneous because they introduced the concept of "common purpose" when discussing joint enterprise. Pressed to identify why the trial judge was in error, counsel criticised the direction for not explaining that after contemplating the occurrence of the relevant possible incident or possible outcome, the appellant and other offenders must then elect to continue with the enterprise with that "degree of knowledge". However, counsel acknowledged that the need to give the suggested direction would not apply if the necessary contemplation existed at the outset because it would then be part of the joint enterprise.

In my opinion, there is no substance in this complaint. The judge explained how, when the joint enterprise was to commit an armed robbery, the appellant could be liable for the crime of murder even though that crime was not part of the joint enterprise. The directions were plain. The jury was correctly told to consider the scope of the enterprise and whether, when the accused agreed to be part of the enterprise to commit armed robbery, he contemplated that the intentional infliction of grievous bodily harm by one or other of those involved was a possible incident or a possible outcome of their common criminal purpose.

There is no challenge to the accuracy of the directions as to aiding and abetting.

The first ground of appeal complains that the trial judge erred in declining to direct the jury as to self defence. Although the submissions were primarily directed to the issue of self defence as it affected the charge of murder, I understood the submissions to be directed also to the offence of wounding with intent. In essence, counsel submitted that there was objective evidence from which it was open to the jury to conclude that the Crown had not negatived the possibility that E was acting in self defence when he stabbed Hillam and in defence of the appellant when he stabbed Bourne.

In ruling that he would not leave self defence to the jury, the trial judge focused on the appellant's knowledge and belief. His Honour observed that the appellant said he was unaware that E had stabbed Hillam and Bourne. On the appellant's evidence, he did not see any of the physical altercation between E and Hillam. He did not see E approach and stab Bourne. His Honour observed that the appellant did not claim that E was acting in self defence. In those circumstances, His Honour concluded that the appellant could not have any belief of the matters essential to a claim of self defence pursuant to s 15(2) of the Criminal Law Consolidation Act 1935 ("the CLCA").

Although the trial judge did not specifically address E's knowledge and belief or the possibility that E was acting in self defence when he stabbed Hillam and Bourne, in my opinion it is implicit in his Honour's view of the evidence that no issue of self defence by E arose. However, as his Honour did not address this question, and probably should have, I have considered the evidence with a view to determining whether the issue of self defence by E should have been left to the jury.

Any consideration of the issue of self defence must be undertaken in the context of s 15 of the CLCA. In particular, s 15(4) directs that if Hillam punched E in response to an unlawful attack upon Hillam by E, and E stabbed Hillam in resisting those punches, E is not taken to be acting in self defence unless he genuinely believed, on reasonable grounds, that in punching him Hillam was acting unlawfully. Similarly, sub-s(4) directs that if Bourne was grappling with and holding the appellant in response to an unlawful attack upon him by the appellant to which E was a party, and E stabbed Bourne by way of assistance to the appellant, E is not taken to have been acting in lawful self defence of the appellant unless E believed, on reasonable grounds, that Bourne was acting unlawfully.

In my opinion, regardless of whether the trial judge approached the matter correctly, the evidence plainly demonstrates that his Honour was correct in not leaving the issue of self defence to the jury with respect to either charge. Three men undertook an unprovoked attack upon two men. Two of the three men were armed with knives. In addition, one of them was armed with a cue ball in a stocking. The purpose of the attack was armed robbery. The two men retreated. The leader of the three men pressed his advantage in an aggressive and threatening manner. Having retreated, and in the face of the continuing threat, with every justification Hillam responded in lawful self defence. His response was not out of proportion to the threat. Hillam punched E three times in the face. E retaliated with a large knife. He inflicted two stab wounds to the body of Hillam, including a wound that involved pushing all but 3 cm of the 18 cm blade into the side of Hillam.

While E was disposing of Hillam, the appellant, armed with the cue ball, took to Bourne. Using the cue ball, the appellant struck the first blow. The appellant did not say that Bourne made a move that the appellant interpreted as a move to assist Hillam. However, the appellant said he went to Bourne and struck him in order to prevent Bourne assisting Hillam. In my view, there is no doubt that Bourne was entitled to defend himself. His response was not out of proportion to the unlawful attack which he sought to repel.

While the altercation between E and Hillam was still in progress, A moved to assist the appellant. The view most favourable to the appellant is provided by the evidence of A that, when he went to assist the appellant, Bourne had his hands around the appellant's neck and the appellant was trying to swing the cue ball. A punched Bourne two or three times and the appellant and Bourne then fell to the ground. It is common ground that they fell to the ground after Bourne was stabbed by E.

On the view of the evidence most favourable to the appellant, after E stabbed one of the two men that the group attacked, he would have seen the appellant grappling with the other person they had attacked. The appellant was trying to strike that other person with the cue ball. The other person had his hands around the appellant's neck. A was striking blows to the lower neck and upper shoulder of the other person. This was the scene confronting E when he intervened by stabbing Bourne to the side of his chest. It should be remembered that all of these events happened very quickly.

The test to be applied is whether, on the version of the events reasonably open to the jury and most favourable to the case for the appellant, a jury acting reasonably might not have been satisfied beyond reasonable doubt that the prosecution had negatived self defence. In considering this question, it is appropriate to bear in mind the observation of Gibbs J in Viro v The Queen [1978] HCA 9; (1978) 141 CLR 88 at 118 that if there is any doubt as to whether there is sufficient material to raise the issue of self defence, the issue should be left to the jury.

In my view, there was no doubt. The essential facts well demonstrate why there was no issue of self defence to be left to the jury. On the version of the events most favourable to the case for the appellant that was reasonably open on the evidence, it cannot be said that a jury acting reasonably might have found that, with respect to either victim, there was a reasonable possibility that E genuinely believed that his act of stabbing the victim was necessary and reasonable in self defence or in defence of the appellant.

As to the application of s 15(4) of the CLCA, again taking the view of the evidence most favourable to the appellant that was reasonably open on the evidence, in my opinion there is no possibility that a jury acting reasonably might have failed to be satisfied beyond reasonable doubt that Hillam and Bourne responded lawfully to unlawful attacks upon them. Similarly, a jury acting reasonably could not have found that it was reasonably possible that E genuinely believed, on reasonable grounds, that either Hillam or Bourne was acting unlawfully.

In my opinion, the evidence disproved the possibility of self defence in any form by E. It also disproved any possibility that the appellant was acting in lawful self defence or defence of E when he became engaged in the physical altercation with Bourne. The only reasonable conclusion open on the evidence was that when E stabbed Hillam and then Bourne, and when the appellant began the physical altercation with Bourne, both E and the appellant were still the aggressors and were acting unlawfully: Zecevic v Director of Public Prosecutions (Victoria) [1987] HCA 26; (1987) 162 CLR 645.

In the context of the ruling by the trial judge that self defence should not be left to the jury, the appellant also complained that the judge had confused the issue by mentioning self defence during his directions as to aiding and abetting.

The trial judge first gave general directions as to aiding and abetting. In the course of those directions, his Honour said:

"Aiding and abetting means doing any one or more of three things while knowing all of the essential facts which made what they did a crime. Those three things are either intentionally helping another to commit a crime, or intentionally encouraging another person to commit the crime by being present, or by acting in some other way, or, thirdly, intentionally conveying to another person, by your presence and behaviour, an assent to and concurrence in the commission by that person of the crime. Thus any intentional act of instigation, encouragement or assistance, in the commission of the crime, will incriminate the person as an accessory to the crime."

In applying the general directions to the charge of wounding with intent, the trial judge explained that it was the Crown case that the appellant knew of E's intention to use the knife to stab Hillam. His Honour pointed out that the appellant denied any knowledge of E's intention and reminded the jury of the appellant's case that the intended armed robbery was over at the time that Hillam attacked E. He put to the jury the appellant's case that, rather than aiding and abetting E in his attack upon Hillam as suggested by the Crown, the appellant went to Bourne in order to defend E from an attack by Bourne. Similar directions were given with respect to A.

It was in the context of considering the appellant's purpose in confronting Bourne, and whether that purpose was to aid and abet E in stabbing Hillam or to defend E against an attack by Bourne, that his Honour said:

"If it is a reasonable possibility that they were acting in that way, to defend themselves and each other, and that is all it was, you may be satisfied that they were not aiding and abetting [E] in the murder [sic] of Hillam."

Similarly, in connection with the crime of murder, the trial judge explained that in order to aid and abet that crime the appellant must have known of the intention to commit the crime and, being present at the time the crime was committed, must have assisted or encouraged the commission of the crime. His Honour reminded the jury of the appellant's denial that he aided and abetted E in the stabbing and of the case for the appellant that he was acting in self defence of E and himself. Again, in the context of the purpose for which the appellant became involved in a physical confrontation with Bourne, his Honour explained that the appellant would not be guilty of aiding and abetting the murder of Bourne if there was a reasonable possibility that he was acting only to defend himself and E.

The trial judge did not attempt to give the jury a direction as to the circumstances in which the appellant would be justified in acting in self defence of E. If he had done so, the direction would have been far more unfavourable to the appellant. The directions were aimed at the appellant's state of mind and purpose. In substance, the trial judge told the jury that if the appellant's purpose was to aid and abet the commission of the crime, the appellant was guilty of the crime. If, however, it was a reasonable possibility that the appellant's purpose was to defend E and himself, he was to be acquitted.

The directions were plain and correctly focussed on the appellant's state of mind. The law was related to the facts and the respective cases for the prosecution and the appellant.

While criticising the directions given concerning the purpose of self defence in the context of aiding and abetting, counsel argued that if it was appropriate to give such directions, the same directions should have been given in the context of joint enterprise. This complaint was not a ground of appeal.

In my opinion, this complaint is not well founded. Two critical questions arose in the context of joint enterprise. First, whether it was contemplated at the time the agreement or understanding was reached to rob Hillam that the weapons would be used, if necessary, to enable the group to achieve their common purpose of armed robbery. Secondly, and of critical importance, whether at the time the agreement or understanding to rob Hillam was reached the appellant shared with the others a common intention of inflicting grievous bodily harm or contemplated that the intentional infliction of grievous bodily harm by one or other of them was a possible incident or possible outcome of their common criminal purpose. Those correct directions having been given, and there being no evidence to justify leaving the defence of self defence to the jury, there was no occasion for the type of directions under consideration.

The trial judge also left to the jury the possibility of what he called "statutory murder". Section 12A of the CLCA replaces the common law felony murder rule: R v G [1995] SASC 4997; (1995) 63 SASR 417. It is in the following terms:

"Causing death by an intentional act of violence

12A A person who commits an intentional act of violence while acting in the course or furtherance of a major indictable offence punishable by imprisonment for ten years or more (other than abortion), and thus causes the death of another, is guilty of murder."

The case of statutory murder against the appellant was presented on the basis that E committed statutory murder and, by reason of the principles of joint enterprise or aiding and abetting, the appellant was guilty of statutory murder. The case was put on the basis that E committed an intentional act of violence while acting in the course of or in the furtherance of the major indictable offence of attempted armed robbery and thereby caused the death of Bourne.

The crime of attempted armed robbery is a major indictable offence punishable by a maximum sentence of 12 years imprisonment. However, the appellant is a child for the purposes of the Young Offenders Act 1993. The appellant having been put on trial in the Supreme Court for all offences, s 29 of that Act provides that, in respect of the offence of attempted armed robbery, the court may deal with the appellant as an adult or may make an order that could be made by the Youth Court on sentencing a youth or may remand the appellant to the Youth Court for sentencing. If the court did not decide to deal with the appellant as an adult, the maximum penalty would not be ten years or more. It would be three years detention. Hence it was argued that, for the purposes of s 12A of the CLCA, in respect of the appellant the offence of attempted armed robbery was not punishable by imprisonment for ten years or more.

In my opinion, the point made by the Chief Justice during the course of submissions is a complete answer to the appellant's proposition. Section 12A defines the offence which, as a matter of definition, is punishable by imprisonment for a period of ten years or more. It is a question of characterising the offence rather than considering the penalty applicable to the particular person who commits the offence.

Next the appellant complained about a particular direction concerning statutory murder. The trial judge explained that a person who commits an intentional act of violence while acting in the course of or in the furtherance of an attempted robbery, and thus causes the death of another, is guilty of the crime of murder. His Honour emphasised that the act of violence had to be committed in the course of or in the furtherance of the attempted robbery. In then considering the question as to whether an act of violence was committed in the course of that crime, his Honour said:

"[W]as there an act of violence? Ladies and gentlemen, I direct you, as a matter of law, that the introduction of the knife into this affray, for the purpose of threatening or intimidating, or for the purpose of stabbing another, is an act of violence. It constitutes a form of assault. If you find that [E] presented the knife for the purpose of threatening or intimidating Hillam, or for the purpose of stabbing him, that constitutes an act of violence. As you will hear in a moment, that is the act of violence upon which the prosecution relies.

The next matter is whether the act of violence was intentional. You may think that the presenting of the knife and use of it requires a deliberate and intentional act. It is not something which inadvertently or accidentally occurs. It is for you to determine whether the knife was intentionally presented and used."

The trial judge then gave directions as to causation about which no complaint is made.

The appellant submitted that the word "intentional" in the s 12A expression "an intentional act of violence" means more than merely a voluntary or deliberate act. Counsel argued that it was necessary for the Crown to prove that E, in deliberately producing the knife, did so with the intention of threatening or intimidating Hillam. In other words, E must have intended to commit an act of violence.

The trial judge told the jury that in order for the introduction of the knife to be an act of violence, it had to be produced for the purpose of threatening or intimidating or stabbing another person. He then directed that the presentation of the knife had to be intentional as opposed to inadvertent or accidental. The total effect of the directions was to require the Crown to prove that E deliberately produced the knife with the intention of threatening or intimidating or stabbing Hillam. The trial judge achieved precisely what the appellant says he should have achieved.

In these circumstances, it is unnecessary to finally determine whether the person committing the act of violence must have intended the act to be one of violence as opposed to merely intending to do the particular act. I am inclined to the view that provided the act committed is one of violence, and this may depend upon the state of mind of the actor, it is sufficient to prove that the act was voluntary: R v Maurangi and Rivett (2000) 210 LSJS 392.

The appellant also complained that the trial judge erred in directing that the act of introducing the knife was an act of violence rather than directing that the act was capable of amounting to an act of violence. In my opinion, there is no substance in this complaint. It was left to the jury to decide whether the purpose of the production of the knife was to threaten or intimidate or stab Hillam. It was only if the jury was satisfied of the existence of one of those purposes that the trial judge's direction applied. The direction was correct. Once the fact of purpose was found, in law the production of the knife with such a purpose was an act of violence and it was appropriate to instruct the jury accordingly.

The final complaint in connection with statutory murder was that a verdict on that basis was unreasonable and not supported by the evidence. Notwithstanding the clear inference that E stabbed Hillam with a knife, counsel submitted that the production by E of the knife "really rests on a very fickle factual basis". He argued that it was necessary to be careful about accepting the evidence of Hillam at face value because there were some areas in which his evidence was contradicted by other objective facts. A comparison was drawn between Hillam's description of a lot of kicking and punching of Bourne and the evidence of the forensic pathologist as to the limited number of injuries. Hillam denied that a phone call was made from the telephone box, but other evidence established that a call was made. Other features of Hillam's evidence were identified together with specific features of the evidence of Douglas and Durrant.

Hillam did not see the knife produced. He was first aware of it as it was being pulled from his body. The appellant confirmed that E had possession of the knife when he approached Hillam. Regardless of any infirmities in Hillam's evidence, there is no doubt that during the altercation between E and Hillam, the knife was produced and used by E to stab Hillam. Even on the appellant's evidence, until he lost sight of Hillam immediately before Hillam threw the punches, E was the aggressor who pursued Hillam while carrying his knife in a concealed position with the intention of robbing Hillam. In that pursuit E behaved aggressively and attempted to provoke Hillam. The inference as to the purpose for which E produced the knife could readily be drawn from evidence other than that of Hillam.

In my opinion, there was ample evidence to support a verdict based on statutory murder. There is no basis upon which this court could reach the conclusion that such a verdict would be unreasonable or unsafe.

In my opinion the appeals should be dismissed.

BESANKO J I would dismiss the appeals against conviction. I agree with the reasons of Martin J.

Criminal Law Consolidation Act 1935

Young Offenders Act 1993

Criminal Law Consolidation Act 1935

Young Offenders Act 1993

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (138 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (3)