R v COZZI No. SCCRM-98-133 Judgment No. S174 [1999] SASC 174

BLEBY J. I agree with the orders proposed by Martin J and with the reasons that he gives. I have nothing to add to those reasons.

MARTIN J. The appellant was jointly charged with Salvatore Menendez with the murder of Geoffrey Neil Plew. Menendez pleaded guilty to manslaughter, but not guilty to murder. The Crown declined to accept the plea in satisfaction of the Information. In a joint trial, Menendez was convicted by a jury of murder. The appellant was found not guilty of murder, but guilty of manslaughter. She appeals against her conviction on the ground that the verdict of the jury is unreasonable or cannot be supported by the evidence submitting that the verdict is unsafe and unsatisfactory (M v The Queen [1994] HCA 63; (1994) 181 CLR 487, Jones v The Queen (1997) 191 CLR 439).

The deceased was last seen alive during the evening of Thursday, 31 July 1997 at his home. Late on Monday, 4 August, 1997 a concerned neighbour raised the alarm and police attended in the early hours of Tuesday, 5 August 1997. They forced their way into the deceased's home and found him lying on the kitchen floor. He had been dead for some time and had died from a massive blood loss caused by a stab wound to the neck which cut the left internal jugular vein. Two other stab wounds to the neck had caused severe injuries. He had been repeatedly beaten about the head and face with sufficient force to cause fractures to his cheekbones, eye sockets and nose as well as a loosening of his jaw. His left ear lobe was hanging loosely. The severity of the head injuries indicated the use of more force than would be expected from punches. Footprints on his skull suggested his head had been stomped on which would account for the head injuries. He had also been beaten about the body resulting in fractures to three ribs and other bruising and abrasions. His legs were taped together and there were no defence injuries.

A pathologist gave evidence that the fatal wound would have caused the deceased to lose consciousness and rapidly bleed to death within a few minutes. The head and other injuries would also have caused the deceased to lose consciousness. While they were serious, those other injuries posed no direct or immediate threat to life.

The pathologist was unable to determine the order in which the injuries had been inflicted, but the presence of substantial bruising on both sides of the head suggested to him that the head injuries were likely to have been sustained prior to the stab wounds to the throat.

It was the Crown case that Menendez beat the deceased and committed the crime of murder by inflicting the stab wounds. Menendez put forward a defence of provocation. He gave evidence that he had met the appellant approximately four years ago and they planned marriage. He met the deceased in February, 1997 and eventually became friendly with him. Menendez said that, in due course, there was sexual contact between him and the deceased which developed to the point where unprotected anal intercourse had taken place on two occasions. About a month before the deceased died Menendez decided to cease contact with him.

According to Menendez he suspected the deceased was HIV positive. He said there was an occasion at the deceased's home when he noticed a letter on the table from the Modbury Hospital which said something about HIV positive and the deceased going to the hospital for a check-up every month. This topic became the subject of an argument Menendez said occurred on the night he killed the deceased.

Menendez, who was called "Sam", referred to an occasion when the appellant came to his house and showed him a letter she had received addressed "To Sam" which contained a rhyme about changing his jocks and cars. It also said "I know your every move" and described some of the cars owned by Menendez. He said he thought it was the deceased's writing and he told the appellant who it could be. She said "Go and find out" and he decided to go to the deceased's house and confront him about the letter. He attended at the deceased's house on two occasions when the deceased was not home. His third visit was on Monday 28 July which was the Monday before the deceased was killed. He was accompanied by the appellant who stayed in the car while he entered the house and spoke to the deceased. He put it to the deceased that he had written the letter, but the deceased denied doing so. On returning to the car the appellant asked whether it was the deceased who had written the letter and he replied that he did not know as the deceased had denied it. In his words, he said to the appellant "I think he is bullshitting; he knows something about it".

Menendez agreed that before leaving the premises the deceased had said "You are an easy bloke to fall in love with". When he got back to the car the appellant said "Did I hear right? Did that guy just say to you 'You are an easy guy to fall in love with?' and he replied 'No'." In cross-examination Menendez said he told her "You haven't heard right" and also said "Don't believe what you hear".

Menendez said he went alone to the deceased's house on the Thursday night to find out the truth about the letter and to discuss another matter. In short, an argument developed which became physical. According to Menendez, he lost control and started hitting the deceased with the end of a chair. After ceasing his attack and sitting on a chair for about five minutes in a state of shock, he said he saw a kitchen knife in the drawer, took it in his hands and stabbed the deceased twice in the neck. As to why he did that, he said he was not sure as he had totally blanked out.

The Crown led evidence that marks on the deceased's head and the floor were consistent with having been made by shoes worn by Menendez at the time of the arrest. Blood on the same shoes could have come from the deceased, but not from the appellant, Menendez or 99.9 per cent of the population.

The jury rejected the defence of provocation. It does not automatically follow from the verdict with respect to Menendez that they rejected all of his evidence, but in view of the verdict with respect to the appellant they must have rejected substantial parts including his claim that the appellant was not present at the time he killed the deceased.

The Crown case against the appellant was that she was present at the time of the killing and was party to an agreement or understanding with Menendez that the crime of murder would be committed. In addition, the Crown put its case on the alternative basis of aiding and abetting in that even if there was no agreement to murder, the appellant was present either actively doing acts to assist Menendez to kill the deceased or encouraging him to commit the crime of murder. Those are the bases upon which the learned trial Judge left the case of murder against the appellant to the jury.

It is apparent from the not guilty verdict that the jury were not satisfied the appellant was a party to a joint enterprise to murder. The jury having been told that murder requires proof of an intent to kill or to cause really serious bodily harm, it follows from the verdict that the jury were not satisfied the appellant was party to an agreement to kill or inflict really serious bodily harm. In addition, the verdicts mean that the jury were satisfied the appellant was present at the time of the killing, but were not satisfied that she assisted Menendez to kill the deceased or encouraged him to commit the crime of murder.

In this Court, there were three principal propositions put forward in support of the appellant's contention that the verdict of guilty of manslaughter was unsafe and unsatisfactory. First it was said that there was insufficient evidence from which a jury could safely conclude that the appellant was present at the time Menendez killed the deceased. Secondly counsel argued that even if the appellant was present, there was insufficient evidence to support a finding that she was implicated in the killing to the extent that she was guilty of manslaughter. Finally it was submitted that if the appellant was implicated by way of being party to assaulting the deceased, the assault to which she was a party did not cause the death and, therefore, the Crown had failed to prove the essential element of causation.

The appellant gave evidence. She denied being present at the time that Menendez killed the deceased. In his directions his Honour stressed that if it was a reasonable possibility that the appellant was not present at the time the deceased was killed, she could not be found guilty of murder or manslaughter and that a proper verdict in that situation would be not guilty of murder and not guilty of manslaughter. He went on to say that even if she was present at the scene of the killing, that presence by itself could not make her guilty of any offence as it would then be necessary to prove that she was party to an agreement to commit either of those crimes or that she was present at the scene aiding or encouraging the commission of either of those crimes.

The Crown case against the appellant relied heavily on the evidence of two persons who had separate conversations with the appellant which the Crown argued amounted to admissions by the appellant that she was present at the time of the killing. The alleged admissions were of critical importance as the other evidence was not capable on its own of proving she was present.

According to a close friend of the appellant, Ms Hassen, the appellant rang her and said "Something has happened. I've got to tell you". The appellant went to Hassen's house where they spoke in the bedroom. His Honour read to the jury the following passages from the evidence of Hassen as to that conversation:

"Q. What did Ms Cozzi say when they came to your room. A. She said that Sam murdered somebody. Q. Did she say when this happened. A. Friday morning. Q. Did she give a time. A. About 3 o'clock. Q. Did she say where she was at 3 o'clock. [A. Yes.] Q. What did she say. A. With Sam. Q. Did she say where they went. A. To his house. Q. As much as possible could you use the words that she used, what words did she use to describe his house. A. What do you mean describe his house. Q. Where did she say they went. Did she say they went to his house or did she use some other words. A. Went to his house, to that poofter's house. Q. Did she say what they did when they got to this man's house. A. She just said Sam asked him "Why did you tell her I was gay?" And he was denying it and he lost his temper. Q. Did she say what Sam did. [A. Yes.] Q. What did she say he did. A. Said he struggled.'. Q. Did she say what he did this with. A. No. Q. Did she mention any injuries. A. His ear came off. Q. Did she say how his ear came off. A. No. Q. Did you say anything during this. A. I said you 'Just stood there and let him do that'. Q. Did she reply. A. She said that she tried to stop him. Q. Did she say whether she was able to. A. She said she tried but she couldn't. Q. Was there any talk about whether they would get caught. A. Yes. Q. What was said about that. A. They had gloves. Q. First of all who raised the topic. A. I did. Q. What did you say. A. I said 'Do you think you are not going to get caught'. Q. What did she say. A. Wearing gloves. Q. Was there any reference to a chair. A. I think so. Q. What was said about a chair. A. He was hitting him with the chair or something, I can't remember. Q. You say 'he'. A. Sam. Q. Was there any talk about his jaw. A. I think so. Q. What did she say about his jaw. A. It was hanging or something. Q. Was there any talk about keys. A. She said Sam took the keys. Q. Took whose keys. A. The guy's keys. Q. Did she say whether they took anything else. A. No. Q. Did she say why Sam had taken the keys. A. I can't remember."

The answers in brackets are in the transcript of evidence, but are not repeated in the transcript of the summing up.

"'Q. You said when you were giving evidence that something was said about gloves. Do you remember that. A. Yes. Q. What was said about gloves. What did Claudia say. A. That they were wearing gloves. Q. That they were wearing gloves. A. Yes, that they had gloves. Q. Who was she referring to when she said 'they'. A. I don't know. Q. Did she use the word 'they' or did she say some other word. Imagine you were Claudia speaking, what did she say. A. I can't remember, I just remember something about gloves.'"

The learned trial Judge then reminded the jury of submissions by counsel for the appellant and of passages in the cross-examination of Hassen:

"Pausing there, you will remember the reliance which both the prosecution and Mr Braithwaite place on certain passages in that. Mr Braithwaite's submission is that in certain important respects, even on the face of the evidence, it is equivocal; it is not clear and that you should bear that in mind. Ms Hassen was asked this by Mr Braithwaite in cross-examination. Page 351: 'Q. I suggest to you that this happened; that Claudia told you the things you have reported to us here in court, that is, that Plew was hit with a chair and his throat cut, et cetera, all those things. I suggest she told you those things as you reported but not that she was there. Could that be right. A. She just told me what happened. Q. I will ask the same question another way. What I'm suggesting to you is that she said that Sam did these things, the things that you've described at Plew's house, and told me and I'm telling you, do you understand that. Could that be right. A. I don't know, it could be right.' Once again Mr Braithwaite relies on that aspect to indicate perhaps some doubt about precisely what was said. Page 353 there were some further questions: 'Q. Just a while ago' - I was asking these questions - 'Mr Braithwaite said to you could it be the case that Ms Cozzi told you that she had been told certain things by Mr Menendez and she told you those things. Do you remember being asked that question. A. Yes. Q. You said that could have been the case. A. She told me what she knew. Q. Did she suggest, at any time while she was speaking to you, that she wasn't there when this incident involving the chair and the knife and so on took place, but she was simply telling you something that she had been told at some other stage by Mr Menendez. A. Could you rephrase the question? Q. You say that she told you certain things that happened on this night when the man was killed, do you remember that. A. Yes, she told me that. I don't know what happened. Q. I realise that she told you those things. A. Yes. Q. Did she, in effect, tell you that she wasn't there, but she was telling you something that had been told to her or did it happen in some other way. A. She just told me what happened. She didn't get into every little detail about what happened. Q. Did she tell you that she had seen certain things or she had simply been told they had happened. A. She just told me what happened. Q. Did you get the impression from what she said that she may not have been there but she was just telling you things that had happened; or was she giving the impression that she had been there and seen certain things. A. Yes. Q. Which one. A. I had the impression that she was there, but I can't be sure."

After that conversation between the appellant and Hassen another friend, Ms Presutti, went to Hassen's house. The three women then drove to a lookout where the appellant told Presutti about the incident. Hassen said she was not paying attention. Presutti said this occurred on a Monday evening.

His Honour reminded the jury of the evidence of Presutti by reading the following extracts from her evidence as to that conversation:

"'A. She said that Sam had killed that Geoff. Q. That Sam had killed that -' A. Geoff; had killed Geoff. Q. Did she say when that had happened. A. Friday morning. Q. Did she say what time. A. About two. Q. Did she say where it had happened. A. In his house. Q. Did she say who had gone there. A. Her and Sam. Q. Did she say what happened once they got to the house. A. She said that Sam had asked Geoff if he had told Claudia he was gay and he denied it. Q. Did she say whereabouts this had taken place, whereabouts in the house. A. I don't recall. Q. You said that she had said Sam had asked him about whether he had told Claudia that he was gay and he denied it. A. Yes. Q. What happened then. A. And then Sam started getting mad and hitting this guy. Q. Did she say where Sam was hitting this guy. A. Just hitting him. Q. Did she say how Sam was hitting this guy. A. She said 'He hit him over the head with the chair'. Q. Did she tell you of any injuries. A. That the - Geoff's ear was off and his jaw was hanging down and that he slit his throat with a knife. Q. Was there any conversation about the topic of whether they would get caught. A. Yes, there was. Q. What was said about that. A. That they wouldn't because they were wearing gloves. Q. What was Ms Cozzi's demeanour, what was her manner when she was talking to you. A. Shock. Q. Did you respond to what she was saying. A. Yes, I did. I couldn't - I said I couldn't believe that they had done that. Q. What did she say. A. She said he lost his temper."

His Honour then read the following from the cross-examination of Presutti:

"'Q. I suggest to you that when Claudia Cozzi spoke to you up there at the lookout that what, in fact, she said to you was 'Sam told me he had done these things to Mr Plew up at Mr Plew's house'. A. If she had said that I wouldn't have said otherwise. Q. It was your impression that she said she was there, is that right. A. That's right. Q. I suggest to you that there's very little difference to listening to it, between someone saying something like 'We went up to that poofter's house' and 'He went up to that poofter's house' 'Q. I am suggesting to you that she never, in fact, said that 'I was there when these things happened'; could that be right. A. Going back ten months ago I thought I knew. She had told me that they were both there and that's what I have said in my statement. Q. What I am suggesting to you is that you have got the wrong impression in those circumstances. Could that be right. Could it be right that you got the wrong impression about that. A. It could have been.'"

The essence of the appellant's defence was that she was not present at the time of the killing. She gave evidence of her relationship with Menendez and of receiving the letter at her home. She said she showed the letter to Menendez and asked if he was going behind her back with another woman. He had responded that it had nothing to do with going behind her back with another woman and he thought he knew who had written it. She said he should find out.

According to the appellant, on Monday 28 July she went to the deceased's house with Menendez. He told her he was going to see someone about sorting out the letter. She waited in the car and observed the two men having a conversation on the verandah. She overheard the deceased say to Menendez "You're an easy bloke to fall in love with". She was shocked. When Menendez came back to the car she confronted him about the statement and, after about five seconds, he responded "You can believe what you want, but I'm not bloody gay".

The appellant said Menendez continued to deny that he was gay. On Wednesday 30 July she and her friends Hassen and Presutti went to the deceased's house where they spoke to him and gave him false names. In response to a question from one of them as to whether he was more than friends with Menendez, the deceased responded "I hope to think that I was, because I feel that I am". They left without giving their true identities and went for a drive. Within twenty minutes, however, they returned to the house where the appellant spoke with the deceased and apologised for lying to him. She told the deceased she wanted to find out the truth and they discussed the sexual relationship between Menendez and the deceased. They exchanged telephone numbers and she left. The appellant was feeling sick and could not believe what she had just heard.

The appellant said she wanted to confront Menendez and they searched for him unsuccessfully. Eventually she waited outside his home until 8 am the following morning, but he did not return. At about 1 pm that afternoon Menendez rang her and she told him the essence of what the deceased had said to her. He responded that it was " a whole lot of bullshit". They met that afternoon. He maintained that she should not believe what she had heard because it was not true and he was not gay.

The appellant described their movements during the afternoon and related discussions during which she was upset and Menendez maintained he was not gay. They ate dinner together and Menendez drove her to her friend's house. She spent the evening with her friend and arrived home at approximately 11 pm and went to sleep.

According to the appellant, Menendez knocked on her window at about 2.00 or 2.30 am. She spoke to him outside the house. She said he told her that he had killed the deceased and, in the course of the conversation, when she asked him about what happened he told her details such as using the chair, tying the deceased's ankles together, slitting the deceased's throat and that the deceased's ear and jaw were hanging. In addition she said:

"I told him 'you are going to get caught' and he said 'No, I'm not because I wore gloves and that - I said 'Did you leave the door to the house wide open' and he goes, he said to me 'No', he had Geoff's keys and that was all I know".

It was in this way that the appellant explained how she was aware of the details that she subsequently related to Hassen and Presutti.

She said she spoke with Menendez in his car for about forty-five minutes to an hour and he left. She went back to bed, but he returned at about 3.30 or 3.45 a.m. with property from the deceased's house. She agreed with his request that he leave the property in her father's shed.

According to the appellant she spoke with Hassen on the Monday evening and relayed to her what she had been told by Menendez. Similarly, she subsequently relayed the same information to Presutti.

The Crown sought to link the statements by the appellant that she and Menendez wore gloves with a box of gloves found in Menendez's vehicle from which two pairs were missing. They were the sort of gloves used in the business of hairdressing in which the appellant was engaged. The appellant admitted they were her gloves. She said she purchased them some time early in July for use in the hairdressing business and just threw them in the back seat of her car.

The learned trial Judge made it clear to the jury that if the appellant's version was reasonably possible, she could not be found guilty of any offence. He pointed out that she denied those parts of the conversation attested to by Hassen and Presutti that suggested that she, the appellant, was present at the house when the deceased was killed. Recognising the importance of the evidence of Hassen and Presutti, in the latter part of his charge to the jury, his Honour was at pains to stress how the jury should approach their evidence and the manner in which it could be used. He said:

"HIS HONOUR: Ladies and gentlemen, the evidence of these two young women Hassen and Presutti is, as I have pointed out to you before, crucial to the prosecution case. They must be assessed carefully. You must remember the accused Cozzi's version while you are assessing them. Before using the evidence for any purpose in the case, that is their evidence, you would have to be satisfied beyond reasonable doubt of what Ms Cozzi did say to them; that is to say, any part of that conversation you would have to find proved beyond reasonable doubt before you used it for any purpose in the case. There are two important features of this evidence: Did either or both statements include an admission that Ms Cozzi was there at the house, and was that admission true and accurate? Furthermore, did she tell either or both of them that she and Menendez were wearing gloves? Ms Abraham said that Ms Hassen was a reluctant witness. She asked could there be any real mistake as to what they were being told. She said their questions of Ms Cozzi reflected the fact that she was saying that she was there. She said their evidence is supported by the fact that there were two sets of gloves missing. Mr Braithwaite argued that the evidence of the two young women gave rise to considerable concern as to whether they were mistaken, and so much depends on their evidence. He said there is no suggestion that they were lying but, he said, could they be mistaken? Is it a reasonable possibility that they might be mistaken in their evidence or some of the details? He pointed out that the emphasis in the conversations was on Sam killing him. He pointed out that their evidence was too equivocal, and I have read those passages, particularly his cross-examination upon which he relies. He referred indeed to marijuana on the second occasion at the lookout and the possible effect that that might have had."

Subsequently his Honour reinforced that direction when he said:

"Ms Abraham has referred to other evidence in relation to Cozzi, but the prosecution case in relation to murder and manslaughter against Cozzi cannot succeed without the evidence of these two witnesses. It cannot be used to assist in founding a conviction of either murder or manslaughter unless you find that it leaves no reasonable doubt on the question of presence at the scene and Cozzi wearing gloves".

From the admirably clear and fair directions, the jury could not have been left in any doubt that unless they accepted the evidence of Hassen and Presutti and, further, were satisfied beyond reasonable doubt both that the statements to those witnesses included an admission that the appellant was at the house and that the admission was true and accurate, they could not convict the appellant of either murder or manslaughter. His Honour also clearly told the jury they could not convict unless they were satisfied she told either or both of those witnesses that she and Menendez were wearing gloves. In addition, the defence case was clearly put to the jury that the conversations were equivocal and it was doubtful whether the statements were an admission that the appellant was at the house or merely a recitation of what the appellant had been told by Menendez.

There was nothing inherently unreliable about the evidence of Hassen and Presutti. This was not a case in which the appellant was able to point to matters such as prior inconsistent statements, internal inconsistencies or any motive for those witnesses to falsely implicate the appellant. Nor could counsel find any criticism of the way in which the evidence of those witnesses and the critical issues on this aspect were left to the jury.

In his written outline of submissions, counsel referred to the fact that the prosecution had not suggested a motive for the appellant to take part and highlighted the absence of any forensic evidence placing the appellant in the kitchen or connecting her with the injuries sustained by the deceased. He emphasised what the defence argued was the equivocal nature of the conversations on the critical issue of whether the appellant was relating what she had been told or acknowledging her presence. He pointed to evidence that the appellant was in a state of shock and shaking at the time of the conversations.

The various matters raised by the appellant, and I have not attempted to relate all of them, were clearly matters properly to be considered by the jury. There is no reason to doubt that they gave due attention to those matters, particularly in view of the clear directions given by his Honour.

In essence, the Crown relied upon the appellant's statements as admissions that she was present at the time of the killing and that she and Menendez were, at the time of the killing, wearing gloves. The gloves belonged to the appellant and only two pairs were missing from the box. In addition, the Crown pointed out there was no sign of forced entry to the house. The evidence established that the deceased was very security conscious and particularly fearful of Menendez. His attitude toward the appellant was such, however, that he would have allowed her into the home.

The Crown was also able to point to a reason for the appellant attending with Menendez. The appellant had confronted Menendez about whether he was a homosexual following receipt of information to that effect from the deceased. Menendez denied he was a homosexual. If Menendez was anxious that the deceased retract the allegation, it would not be surprising if he attended at the deceased's home on the evening in question accompanied by the appellant for the purpose of extracting such a retraction in the presence of the appellant.

In support of its case that the appellant was present at the time of the killing and implicated in it, the Crown also referred to a large amount of property stolen from the deceased's home at the time of the killing and the fact that the property had been stored at the appellant's home. The appellant acknowledged going through some of that property, including a bag of CDs to see what sort of music was in the collection. She helped put together CD racks to store the stolen CDs. An amplifier stolen from the deceased's home was found in the boot of the appellant's car at the time of her arrest. The Crown also pointed to evidence that the appellant appeared to be leading a normal life after the killing and chose to spend most of her time in the company of Menendez.

It was clearly open to the jury to be satisfied that the appellant's statements to her friends disclosed such knowledge and were expressed in such a way as to prove beyond reasonable doubt that the appellant was present at the time Menendez attacked and killed the deceased. In my opinion there was ample evidence from which a jury could reasonably and safely conclude that the appellant was present at the time of the killing.

The evidence to which I have referred also disposes of the second complaint that, even if the appellant was present at the time of the killing, the evidence was insufficient to implicate her in that killing. Bearing in mind that the appellant denied she was present, in my opinion counsel's submissions overlooked the significance and weight of the evidence of her admissions and subsequent conduct.

There was also another feature of the evidence to which I have not referred. A roll of tape was found in Menendez's vehicle which matched the tape used to tape the deceased's legs together. Blood matching that of the deceased was found on that roll. The significance of that evidence is to be assessed by considering it in conjunction with the general background that indicates Menendez was anxious to have the deceased retract his allegation that Menendez was gay. It is also to be considered in the light of the appellant's admission that she and Menendez were wearing gloves.

In those circumstances, it was clearly open to the jury to safely conclude that the appellant and Menendez attended at the premises with tape and gloves to ensure that whatever they intended to do would be done while the deceased was restrained and without leaving any trace of their presence. In addition, as previously mentioned, the jury could also have found that the involvement of the appellant extended to persuading the deceased to open his door knowing that he would not have done so if he had been aware of the presence of Menendez or if Menendez had attended alone.

In my opinion, therefore, the second basis upon which the appellant attacked the conviction is not made out. A finding that the appellant was implicated in the attack upon the deceased is not unsafe or unsatisfactory.

In considering the third head of the attack upon the verdict which challenges the adequacy of the evidence led to prove that the assault in which the appellant was implicated caused the death of Plew, the following matters must be borne in mind:

(i) The appellant was acquitted of murder. The jury were not satisfied that she was party to an agreement or understanding to kill or inflict really serious bodily harm upon the deceased. It also follows that, although the appellant was present at the time of the killing, she did not aid and abet Menendez in the crime of murder. (ii) It is unknown when Menendez formed the intention to kill or cause really serious bodily harm. Whenever he formed that intention, the appellant was either unaware of it or did not join in to that extent. (iii) The acquittal of murder occurred in the context of a defence case that the appellant was not present at the time of the killing. That case was rejected as was the Crown version of a plan to kill or cause really serious bodily harm having been reached at the outset. (iv) The finding of the jury that the appellant aided and abetted or was party to a dangerous assault upon the deceased short of murder fits with the evidence of a desire to confront the deceased and obtain a retraction.

An examination of the evidence concerning causation will also involve consideration of the directions given to the jury and assessing the bases upon which, in view of the background and those directions, the jury could reasonably have found the appellant guilty of manslaughter. The critical question is whether, in respect of the crime of manslaughter, the directions provided sufficient assistance to the jury in relating the legal requirements of the crime to the factual possibilities open to the jury (R v Anderson [1996] VICSC 17; [1996] 2 VR 663). It must be recognised that the directions were given in the context of a trial in which the appellant was denying she was present at the time of the killing. The adequacy of those directions, however, must now be assessed in the light of the verdicts.

After general directions and dealing with the case against Menendez, the learned trial Judge gave directions of law as to the Crown case against the appellant that she was a party to a joint enterprise to murder. His Honour then indicated that if the jury found the appellant not guilty of murder, they would be required to consider whether the Crown had proved she committed the crime of manslaughter. His Honour gave the following directions as to manslaughter:

"Manslaughter can arise in a case in a number of ways. One of them is where a person kills another in the course of an unlawful and dangerous act. If a person causes the death of another while assaulting that person and performing acts which were dangerous in the sense that they would have exposed the victim to an appreciable risk of serious injury, then the person who carries out those acts may be found guilty of manslaughter. How is this relevant to Ms Cozzi? If you reach the view that Ms Cozzi was present at the time of the killing, but was not guilty of murder by reason of being part of a joint enterprise to murder Mr Plew, or an aider and abetter to the crime of murder, she would nevertheless be guilty of manslaughter if Mr Plew was killed by Mr Menendez and she was party to an agreement to assault Mr Plew and join in acts which were dangerous acts in the sense that a reasonable person in her position would have realized that they would have exposed Mr Plew to an appreciable risk of serious injury. That is the joint enterprise principle applied to manslaughter. In order for such a verdict to be returned it would be necessary for the prosecution to establish the following elements: 1. That the accused Cozzi was present at the scene of the killing. 2. That she was party to an agreement or understanding that Mr Plew would be assaulted. An assault is the intentional infliction of bodily harm on a person without lawful excuse. 3. That the assault was dangerous in the sense that a reasonable person in the accused's position would have realised that it exposed the person assaulted to an appreciable risk of serious injury. 4. That Mr Plew was killed as a result of the assault. What I have just described would amount to the commission of the crime of manslaughter by means of a joint enterprise. Once again, the alternative of aiding and abetting is relevant. Ms Cozzi would also be guilty of manslaughter if: 1. She was present at the time of the killing of Mr Plew. 2. Ms Cozzi either aided or encouraged the commission of the assault. 3. The assault was dangerous in the sense that a reasonable person in Ms Cozzi's position would have realised that the assault would have exposed the deceased to an appreciable risk of serious injury. 4. Mr Plew was killed in the course of the assault."

The evidence established that death was caused by an assault with a knife. I have no difficulty in concluding that the evidence to which I have referred was capable of supporting a finding that the appellant was party to an enterprise that encompassed both an assault upon the deceased and the use of a knife in the course of that assault or that she aided and abetted such an assault. In those circumstances, it was open to the jury to arrive at the view that the assault was dangerous in the sense explained by the learned trial Judge and that the deceased was killed as a result of that assault. On that basis, therefore, the challenge centred on the adequacy of the evidence as to causation fails.

A finding that the evidence was sufficient to support a finding of guilt does not, however, finally dispose of the matter. There remains to be considered the critical questions as to whether there is a possibility that the jury convicted on a different basis and, if so, whether the directions were sufficient to give the jury the necessary guidance as to the circumstances in which a verdict of guilty could properly be returned on that alternative basis.

In considering whether the jury might have convicted on a different basis, the first and important feature is that the jury were not specifically told that, in order to convict of manslaughter, the Crown had to prove the appellant was party to an assault which encompassed the use of a knife. The Crown argued, however, that the jury must have found the appellant was party to such an assault because:

(i) the judge told the jury the Crown had to prove the dangerous assault to which the appellant was a party caused the death (ii) it was clear from the evidence that death was caused by an assault with a knife and not by the assault by beating the deceased about the head and body.

It is correct that the learned trial Judge directed the jury in the passages quoted that, in order to convict of manslaughter, the prosecution had to prove that death resulted from the dangerous assault to which the appellant was a party. But those brief references to causation were the only directions on that issue in the context of manslaughter. The only other reference to causation was in the context of the directions concerning the legal definition of murder when his Honour stated briefly that the Crown must prove that the act or acts of the accused caused the death of the deceased. Causation was not a live issue in the trial and the issue was not mentioned by counsel in the course of their closing submissions. It is not surprising that there was no discussion about this issue as attention was primarily focussed upon whether the Crown had proved that the accused was present at the time of the killing.

If the jury had complied with the directions as to the elements to be proved, they should not have convicted of manslaughter on the basis that the appellant was party only to the dangerous assault by beating the deceased about the head and the body, being an assault in which the use of the knife was not encompassed. The jury were not specifically told, however, that being party only to that beating was not sufficient to prove manslaughter. The beating was brutal and caused serious head injuries. The evidence that the injuries sustained from the beating did not cause or contribute to the death was given at an early stage of the trial and consisted of the following:

"Q. Would those blows have resulted in loss of consciousness. A. It's quite likely, yes. The extent of the brain injury suggested they were an unlikely cause of death, in terms of injury to the brain. I think it's most likely he would have lost consciousness from them, but they posed no direct and immediate threat to life. Q. In giving that answer I take it you are confining yourself just to the head injuries and excluding the other injuries; you've already spoken of the stab wounds. A. Yes, I'm just talking about the blood and trauma to the head."

In view of the lack of attention given to the issue of causation, once the jury turned to consider to the question of manslaughter it would have been relatively easy to overlook or misapply the direction as to causation and the need to find that the enterprise to which the appellant was a party included the use of a knife. The natural temptation would have been to regard the appellant as bearing some responsibility for the death merely because she was party to the brutal beating. This is particularly so because the mention of causation was the brief reference to element number four in the passages quoted and those references occurred after the general statements that manslaughter can arise if death is caused during an assault to which the appellant was a party. In a general sense the jury could easily have concluded the death was caused during the brutal beating if, as is likely, the jury regarded the attack upon the deceased as one episode.

In this context it is also relevant to consider the strength of the Crown case that the appellant was party to an assault that encompassed the use of a knife as opposed to the view that she was party to an assault, but the use of the knife was not contemplated as part of that assault. In my opinion, while it was open to the jury to be satisfied that the appellant was party to an assault that encompassed the use of a knife, the evidence was not so strong that it compelled such a conclusion. The overall impression gained from the evidence, including the appellant's admissions to her friends and the evidence of Menendez with all its imperfections and the aspects the jury must have rejected, is that the defence could have argued quite strongly that the use of a knife may not have been contemplated by the appellant as part of the original enterprise.

In these circumstances, in my opinion there is a real possibility that the jury were not satisfied the enterprise to which the appellant was a party included or contemplated the use of a knife. There exists a real possibility that the jury convicted the appellant on the basis that she was party to an enterprise to commit a dangerous assault, but that enterprise did not contemplate the use of a knife. Viewed in this way, the verdict can only be sustained if directions were given as to the legal consequences of this alternative finding. The need for directions is acute because, while this alternative view of the facts could properly result in a verdict of manslaughter, it could also lead to a complete acquittal. No directions were given.

If the appellant was party to an arrangement to perpetrate a dangerous assault, but that arrangement did not encompass the use of a knife, she was entitled to be acquitted of manslaughter if Menendez had, in using the knife to stab the deceased, gone completely beyond the scope of the common design and acted in a way which no party to that common design could suspect. She could only be convicted of manslaughter if the jury were satisfied that the use of a knife to kill the deceased was no more than an unexpected incident in carrying out the common design. These different results ensue from the principles enunciated by the High Court in Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108 at 112-113 in the following passage:

"In some cases the inactive participant in the common design may escape liability either for murder or manslaughter. If the principal assailant has gone completely beyond the scope of the common design, and for example "has used a weapon and acted in a way which no party to that common design could suspect", the inactive participant is not guilty of either murder or manslaughter: Reg. v Anderson; Reg. v Morris. If however the use of the weapon, even if its existence was unknown to the other party, is rightly regarded as no more than an unexpected incident in carrying out the common design, the inactive participant may be convicted of manslaughter: Varley v The Queen."

In this context I note the remarks of the New South Wales Court of Criminal Appeal in R v Duong (1992) 61 A Crim R 140 at 148-149:

"It is clear from the term of the Chief Justice's judgment in Varley and the Acting Chief Justice's judgment in Markby that their Honours were imposing an objective test upon this aspect of accessorial liability. And there is some logic in this. For when determining an accessory's culpability for manslaughter in a situation where the principal is guilty of murder, one can assume that the act causing death was not within actual contemplation. If it had been, then in most cases the accessory would also be guilty of murder. The issue in relation to manslaughter is whether, notwithstanding that the fatal act was not in fact foreseen or contemplated, it was nevertheless, from an objective point of view, within the scope of the common design. If it was, then the accessory will be taken to have encouraged it, and he will be guilty of manslaughter. If it was not, then the principal will have gone so far outside the common purpose that the accessory will bear no criminal responsibility for his actions. Accordingly, in all such cases it will be incumbent upon the Crown to prove either that the accessory knew of the presence of the weapon but assumed that it would not be used to inflict grievous bodily harm or death, or alternatively that some use of the weapon was within the scope of the common design, in which case the accessory will be taken to have encouraged or assisted in its use, notwithstanding that he did not know of its actual presence. It follows that if a Crown case is to reach a jury in relation to an accessory who is unaware of the presence of the weapon, there must be some evidence from which it can be inferred that the use of the weapon was nevertheless within the scope of the common design. The more lethal the weapon, the more difficult it will be to draw such an inference, so that more substantial evidence will be required in order to get the case to the jury. But each case will depend on its own facts."

In R v Woolley (1989) 42 A Crim R 418 at 437-8, the New South Wales Court of Criminal Appeal said:

"The use of a weapon such as a baton, a rock, a knife or a revolver, which brings about death, may be no more than an unexpected incident in carrying out the common design. If so, then the differing verdicts of murder and manslaughter are still open. This would appear to be so even if the existence of the weapon was unknown to the second accused. In Varley's case the weapon was a baton or cosh. It is more likely that there would be a going "wholly outside the common design" when one accused had and use[d] a knife or revolver without the knowledge of the other accused. But it will be a question of fact in each case and it cannot be said that there is a special rule for knives or revolvers to the effect that their unknown possession and use will invariably involve a complete departure from a common design to carry out an assault where there is no murderous intent."

In summary, therefore, the difficulties confronting this Court have arisen in the following way:

(ii) Death was caused by an assault in which a knife was used. The beating about the head and body did not cause the death. (iii) Through a combination of factors, there is a real possibility that the jury were not satisfied the appellant was party to a dangerous assault that encompassed the use of a knife, but nevertheless convicted on the basis that the appellant was party to the dangerous and brutal non-fatal assault in which the deceased was beaten about the head and body. (iv) The jury were not told specifically of the factual circumstances in which the appellant should be convicted or acquitted of manslaughter if she was party to an assault that did not encompass the use of a knife (Markby).

In the particular circumstances of this trial, in my opinion the absence of that direction in accordance with Markby resulted in a real risk that the jury convicted on factual findings that entitled the appellant to a complete acquittal. In arriving at that view, I have been conscious of the need to bear in mind the basis on which the trial was conducted and the need to tailor the directions accordingly (Alford v Magee [1952] HCA 3; (1952) 85 CLR 437 a 466 and R v Williams (1990) 50 A Crim R 213). In my view, however, the directions failed to bring the critical issues discussed to the attention of the jury and they were not given sufficient assistance in relating the legal issues to the different factual scenarios upon which a conviction of manslaughter was open.

In my opinion a miscarriage of justice has occurred and the verdict should be set aside. I would do so not on the basis that the verdict is unreasonable and cannot be supported by the evidence, but on the basis that the appellant has lost a chance of acquittal which was fairly open to her (Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493).

I turn to the question as to whether an order should be made that the appellant be retried on the charge of manslaughter. In normal circumstances, the state of the evidence would justify a re-trial. There is, however, another possibility. If the appellant was retried on the charge of manslaughter, the jury would also be asked to consider the alternative offence of assisting an offender if they acquitted of manslaughter. This alternative was left to the jury by the learned trial Judge, but as the verdict of guilty of manslaughter was returned they were not asked to return a verdict on this final alternative.

The offence used to be called accessory after the fact to a felony. As the learned trial Judge directed the jury, the offence is comprised of the following elements:

1. That the person alleged to be the principal offender (in this case Menendez) committed the offence of murder or manslaughter. 2. That the appellant assisted the principal offender to escape apprehension or prosecution or to dispose of the proceeds of the offence. The assistance need not be successful in the sense that it actually prevents apprehension or prosecution, but this must be its purpose; to assist. 3. That at the time of the assistance, the appellant knew or believed the principal offender, Menendez, had committed the crime of either murder or manslaughter. 4. That the appellant performed the act or acts of assistance intending to assist the principal offender to escape apprehension or prosecution. 5. That the acts of assistance were performed without lawful authority or reasonable excuse.

At the conclusion of the hearing of the appeal, counsel obtained specific instructions from the appellant. He then advised the Court that the appellant admits she is guilty of the offence of assisting an offender.

Section 354(2) of the Criminal Law Consolidation Act 1935 empowers the Court of Appeal to substitute a verdict of guilty of assisting the offender if it appears to the Court that the jury must have been satisfied of facts which proved the appellant guilty of assisting the offender. In my opinion, the evidence at trial must have satisfied the jury of facts which proved the appellant guilty of assisting Menendez.

I have given this question anxious consideration. The Crown is able to produce ample evidence from which a jury could conclude that the appellant was party to an agreement to assault the deceased realising that he was being exposed to an appreciable risk of serious injury. On the assumption that the evidence is substantially the same in a re-trial, directions would be given in accordance with Markby and the jury left with more than one basis upon which they would be entitled to convict of manslaughter. The acquittal of murder and the different bases upon which manslaughter would be left to the jury will necessarily result in complicated directions. The primary offender has been convicted and sentenced. It is pertinent to note that, in sentencing the appellant, the learned trial Judge observed that the appellant may have taken part out of misguided loyalty to Menendez and that it is not difficult to feel some sympathy for the appellant in the way she became involved. The appellant has now spent approximately 14 months in custody.

While there may be a number of factors that would justify a decision by the Director of Public Prosecutions not to proceed with a retrial on the charge of manslaughter, some of those factors are matters peculiarly within the knowledge of the Director. In my view this Court should be slow to decline to order a retrial where the evidence justifies a further trial.

In my opinion the appeal should be allowed. The verdict should be set aside and the appellant remanded to appear for a further trial on the charge of manslaughter.