R v Franklin [2001] VSCA 79

R v Franklin [2001] VSCA 79 - VSCA 2001 case summary — Zoe

[5]

"You will recall that right at the outset of this trial I instructed you that there must be an action of the accused which is the cause of the death of the deceased. I indicated to you that that does not mean that every action which is undertaken must be personally performed by the accused. In the present case, the Crown argues that ... the accused man ... enlisted a number of other persons ... to assist him in the systematic beating and humiliation of the deceased over a number of hours. He was, the Crown contends, beyond reasonable doubt, at all stages in control of the whole operation, whether or not he personally struck all of the blows or indeed was even present for all of the time during which assaults took place. In that situation the Crown says that his actions caused the death of the deceased. Mr Brustman has submitted that you cannot be satisfied about the presence of that link. He has submitted that in a situation in which the accused was simply not present for very substantial periods of time, when, on the evidence of Wade Russell in particular, it is clear that continuing vicious assaults took place, you cannot infer that the accused man had the control, had the responsibility for what was taking place. It is not in that situation reasonable, Mr Brustman contends, to attribute to the accused man the actions of persons, who had motivations of their own for engaging in the attacks on the deceased, the conduct of those individuals. You could not, in any event, Mr Brustman argued, be satisfied beyond reasonable doubt that there was such a link between what these various individuals did and the accused man so that you could say they acted under his control and direction and so that you could say their actions were effectively his actions. As I have said to you, the Crown must, in order to establish the commission of the crime of murder, show that the actions which brought about the death of the deceased were because they were either in part performed by him and otherwise under his control, or actions which can be attributable to the accused man as his actions. The actions must constitute a cause of the death of the deceased ...".

[44]

"HIS HONOUR: ... If I engage someone to perform, to assault somebody and the person is busily assaulting the person, it doesn't matter whether I am there or not and it really doesn't matter that that person isn't intending to cause the death, it is my intention what the ultimate culmination of these assaults will be. MR BRUSTMAN: If that be so. HIS HONOUR: It is. MR BRUSTMAN: I accept that. Even if that be so, he [the Crown prosecutor] is therefore, it seems to me, put in the position of casting the Crown case within the character of principal and innocent agent. He can tell the jury all he wants about other people [other offenders] being dealt with before and after. HIS HONOUR: No, the category isn't as simple as innocent agent, it is a question of whether or not he has made himself a party to and responsible for actions of others with the existence in him of the necessary murderous intention and I have tried to make that clear that it is his personal culpability with which the jury is concerned in the sense that he has made his own all that occurred and that he did so with the intention at the relevant time of bringing about death or serious injury to the young man. MR BRUSTMAN: I accept that if that is what the inference bears out, that is correct. HIS HONOUR: I have confined it because it didn't seem to me in the context of this particular case that the references which have been made to Johns were appropriate or some of the other notions which get mixed up in this concept of common purpose but that Mr Rapke's case, as I understood it, was essentially based upon the proposition that the whole afternoon's and evening's activities were orchestrated and controlled by the accused man and whatever may have been the intention or otherwise of individuals who joined in that activity, his intention, he says, can be clearly inferred out of the totality of the circumstances and that is the way I have tried to confine it in the initial instruction I have given to the jury. You can either make that stick or not, Mr Brustman. Are you happy with that Mr Rapke, is that a correct statement of your position? MR RAPKE: Yes." [My emphasis.]

[48]

"You will recall that right at the outset of this trial I instructed you that there must be an action of the accused which is the cause of the death of the deceased. I indicated to you that that does not mean that every action which is undertaken must be personally performed by the accused. In the present case, the Crown argues that ... the accused man ... enlisted a number of other persons ... to assist him in the systematic beating and humiliation of the deceased over a number of hours. He was, the Crown contends, beyond reasonable doubt, at all stages in control of the whole operation, whether or not he personally struck all of the blows or indeed was even present for all of the time during which assaults took place. In that situation the Crown says that his actions caused the death of the deceased. Mr Brustman has submitted that you cannot be satisfied about the presence of that link. He has submitted that in a situation in which the accused was simply not present for very substantial periods of time, when, on the evidence of Wade Russell in particular, it is clear that continuing vicious assaults took place, you cannot infer that the accused man had the control, had the responsibility for what was taking place. It is not in that situation reasonable, Mr Brustman contends, to attribute to the accused man the actions of persons, who had motivations of their own for engaging in the attacks on the deceased, the conduct of those individuals. You could not, in any event, Mr Brustman argued, be satisfied beyond reasonable doubt that there was such a link between what these various individuals did and the accused man so that you could say they acted under his control and direction and so that you could say their actions were effectively his actions. As I have said to you, the Crown must, in order to establish the commission of the crime of murder, show that the actions which brought about the death of the deceased were because they were either in part performed by him and otherwise under his control, or actions which can be attributable to the accused man as his actions. The actions must constitute a cause of the death of the deceased ...".

[87]

One of the striking things about this trial is that no alternative Crown case was left to the jury that acts directly performed by the applicant himself substantially contributed to the death. It is clear that for the purposes of the law of homicide there may be more than one cause of death and that criminal liability may attach to an actor even though the act was not the sole or even the "main" or "most substantial" cause of death. On the other hand, it is also clear that criminal liability will not attach unless the act was a "significant" or "substantial" cause of death. In the last 50 years a good deal of authority has accumulated on the subject,[39] culminating, for Australian purposes, in the decision of the High Court in Royall v. R.[40]. The issue of the cause of death is of course one of fact for the jury[41], and while many if not most cases of homicide call for no direction about the principles of law concerning causation there are some which do. The decisions in which those principles are discussed are those in which either the judge's charge on causation or the jury's entitlement to find a causal connection is called in question. Putting to one side pure questions of fact (for example, which of two bullets struck the body, or whether death was due to trauma or some unrelated cause), there remains a wide variety of situations in which juries will need assistance from the judge when they come to consider what caused or contributed to the death. For example, where a wound was inflicted by the accused it may be argued that the "chain of causation" has been broken by unskilful medical treatment, or by the victim's refusal on religious grounds of a blood transfusion. On the other hand, the question may be whether death has been caused by aggressive behaviour of the accused where the victim has jumped from a window or moving car. The possible factual situations are infinite and even the categories to which they may be sought to be assigned are numerous.[42]

[107]

On this application for leave to appeal against the murder conviction the ground originally relied upon when the application was first made was specifically abandoned[52]. A string of six new grounds was added in the latter part of last year, few of which, as seems to be the custom, were the subject of specific objection at the trial, except for, arguably, one relating to complicity and one relating to the admission of covertly recorded conversations between the applicant and an undercover policeman which it is said were wrongly admitted (ground 2). The third ground complains that the judge had erred in his directions concerning lies and consciousness of guilt and in particular about his use of an expression[53] which in essence has already been the subject of a very recent decision of this Court upon an argument advanced by the same counsel, in R. v. Camilleri[54]. Of course the evidence in the present case and the context in which it arose at the trial are quite different. Ground 4 asserts that the judge "erred in his directions concerning complicity". The substance of this ground, examined in detail in the judgment of Brooking, J.A., was that the judge directed the jury on the basis neither of acting in concert nor of aiding and abetting but upon the basis that the acts carried out on the deceased were carried "either by him or at his behest and under his control" and that in those circumstances "it really doesn't matter what was in the mind of the person who actually struck" the blows. The fifth ground asserts that the judge erred "in his directions concerning causation", essentially raising on argument that it could not be shown that any particular injury or injuries inflicted by the applicant caused the death of the deceased, especially as there was evidence that a number of blows were struck while the applicant was absent. Ground 6 asserts that the judge erred in his directions concerning manslaughter and in failing to leave manslaughter by criminal negligence. It is said that, having regard to the applicant's general concession as to manslaughter, leaving manslaughter to the jury only on the basis of an unlawful and dangerous act prevented the jury from accepting one of two available alternatives to a verdict of murder. Finally, in the seventh ground it is said that the verdict was unsafe or unsatisfactory, but that was stated as intended only to catch up the argument based on the inadequate proof of causation.

[115]

The two brothers were then forced to crawl from the foot of the stairway around the corner of the house to a low door or gate leading under the house, with the applicant continuing his abuse with at least Alan Franklin, Shane Kelly[55] and probably Paul Cassar following. The area under the house, although partly protected from the weather, was only a few feet high inside the entrance and, it would seem, never reached standing height through its whole extent. The floor was bare earth and otherwise there were only concrete pillars which formed the footings to the house. According to Wade Russell, Alan Franklin began striking him, while the applicant recommenced his attack on Joel, still constantly asking questions about his gold chains. Thereafter, the two brothers were variously kicked, punched, hit with baseball bats, bars, chains and were stabbed or cut with one or more knives, variously by at least four of the co-offenders, including Robert Carpenter, who had followed under the house shortly afterwards. The assaults continued throughout the afternoon and, even from Wade's description, it is not easy confidently to ascribe particular acts to particular offenders. It seems that throughout the applicant was continuing his abusive questioning while the offenders moved from one to the other of the victims to attack them. Early in the piece the applicant asked one of the others, probably Paul Cassar, to get some knives which he brought down under the house, one a steak knife and the other with a longer serrated edge. Although the son, Alan, first struck Wade, soon afterwards the applicant came across with one of the knives and stabbed Wade in the buttocks with it. Then Shane Kelly took the other knife, at the same time pressing it against Wade's neck and half choking him on the other side with a trampoline pole, as he pushed Wade up against a concrete post. At the time the applicant and his son, Alan, concentrated their attacks on Joel. The son pulled Joel's arm out across the dirt floor, while the applicant threatened that, if Joel did not tell him the truth, he would break his wrist with a bat. As he received no satisfactory answer the applicant then swung his bat onto Joel's wrist, causing him to cry out. The bat was then used to rain blows on Joel's arms, ribs and legs, also causing him to cry out. Later the applicant turned his attention to Wade, delivering blows with the bat to his elbow, thighs, shins, knees, ribs and shoulder blades, although not as frequently as with Joel.

[120]

While the applicant had been away the beatings had continued from the other co-offenders but not as frequently. When the applicant did return he "started laying into Joel pretty badly", as Wade put it. As the applicant continued to complain about being misled about the roof, then, as Wade described it: "Crack, crack, crack with the bats. I don't know how many times, but it just seemed continuous." The blows rained on Joel's shoulder blades, shins and arms as he hung suspended from the bearers. He was moaning and it seemed that he was having difficulty breathing. Indeed, Wade said that from the time he was tied up he noticed that his brother was wheezing and that his breathing was "definitely stiff". Robert Carpenter continued the assaults on Wade's shins and kneecaps while he was told to sit up against one of the concrete posts. Then to add insult to injury Shane Kelly told Wade to pick up one of the baseball bats and hit his brother with it. He could only use his left hand as his right hand was injured, but he lifted the bat and went over to Joel and "went tap, tap" on his brother. This merely provoked Alan Franklin to kick Wade in the ribs. Throughout this the applicant was sitting on the left-hand side of Joel. Then Alan Franklin pointed to some dog faeces on the ground and told Wade to pick it up and put it in his mouth and chew it. He refused but, when Alan Franklin threatened him with the bat again, he started chewing and it made him choke and become sick. A friend of the co-offenders, or at least of Kelly, one Dallas Sweetman, a witness at the trial, had also come below the house at this stage, apparently writing down the answers, such as they were, to the questions put to the two brothers. She brought water to Wade but when some was brought to Joel it was just thrown in his face. At another stage Shane Kelly brought some bolt-cutters and required Wade to put his little finger into the cutting part. Kelly started to close it but the witness pulled his finger out and the exercise was gone through a second time. Whether or not it was merely a cruel game the witness found hard to determine, but he said it did not seem so at the time. Then Joel was rolled onto his side so that Alan Franklin could kick him in the stomach, though it seems that the applicant was not present at that time.

[133]

Secondly, and this may be seen to be a second basis for treating the earlier answers as lies, he had spoken in a cell later that day with an undercover police officer. A recording, taken by a concealed tape recorder and admitted in evidence at the trial, was objected to at the time and its admission is presently of one of the grounds of the application. The conversation was a stream of vulgarity, abuse and candour, albeit that the applicant had an apparent tendency to "big-note" himself. He told his fellow "inmate" that he was being held for attempted murder, that four people had run through his house and that he had caught two of them. He said that he had dealt with one of them with a baseball bat and that one was now in hospital. Of Wade he said "He's the one we grabbed and he's a c---- of a mess ... he's supposed to have two broken legs, broken arms and f--- massive head injuries, f--- lot." As to the other person, which must have been Joel, he said that he was "missing". The undercover officer then said that it looked as though his only concern would be if the missing man turned up, to which the applicant had replied that that would be "too bad". As he saw it, if he turned up dead, then the way it would work out was that there was only one brother who could give evidence. So with one dead and one injured there would be "only one talking". As he threatened: "By the time it gets to court date, he'll already be spoken to and then he, from what he got, believe it or not, he's going to get worse." The undercover man commented: "Gee, he must've kinged this bloke for assault and f--- attempted murder", to which the applicant responded: "Yeah, maybe that won't ever stick in court. How do they know what I was thinking, or what f--- they were, or he was thinking?". He conceded to his fellow inmate that he was very angry at those who had run through his house. He complained about being arrested without there being a body, "without the person being alive, dead or f--- rah rah rah". He was told he would need confidence to lie about it, to which the applicant had replied that he would beat it at trial and he just hoped it would not get that far. He was asked whether the body was likely to turn up to which the applicant had replied, "No". He said that if he were to turn up alive, that would make the police out to be liars because they had already charged the applicant with murdering him. However, he said they could search anywhere and everywhere they wanted to but in any event Wade would "freak" the closer it got to the court date. The rest of the appalling conversation is better left unnoticed.

[160]

Essentially the real objection to the learned judge's statement was that it tended to withdraw the ultimate question of guilt or innocence from the jury. As it was expressed, counsel said that a conclusion that a lie was told because of "consciousness of guilt" does not mean that one has concluded that the accused is guilty as charged. A lie of that kind is, so it was contended, "simply a piece of evidence in the character of an implied admission against interest". Of course, if his Honour had directed the jury in terms that it was not necessary for the jury to be satisfied beyond reasonable doubt that the lies in the present case demonstrated a consciousness of guilt of murder, as the Crown contended would have been here sufficient, then there might then have been some substance in the objection. It is obvious, however, that the judge would not have given any such direction if he had thought the implicatory admission had to be made out to the lesser standard. His observations were meant only to emphasise the seriousness of any finding of "consciousness of guilt". Nevertheless, as all members of the Court in Camilleri observed, and I would reiterate, it would have been preferable if the observations had not been expressed in terms such as those used in that case and in the present, the substance being effectively the same. It had a tendency to confuse the jury in an area where the somewhat difficult tests adopted in Edwards v. The Queen[66] were expressed in the required terms, without additional comment: see Camilleri[67]. As I there said, although one might understand what the judge was driving at, this was not an observation which should have been made to the jury. If the lies were found to be evidence of consciousness of guilt, then that could be treated as no more than an implied admission of guilt which had to be "weighed with all the other evidence in determining whether the prosecution case had been made out beyond reasonable doubt".[68] But to suggest that it had any tendency to mislead the jury, by suggesting that the general issue was withdrawn from them, would be "far-fetched".[69] No objection was made at the trial, nor could there reasonably have been seen to be any risk of a miscarriage of justice.

[167]

The difficulty, as I see it, lies in the use of the expression "consciousness of guilt", for it imports a significance to evidence which may be relied upon to support a circumstantial case which the words themselves ought not to bear. Their use by prosecutors and judges suggests to the jury, so it may be thought, that a lie or other implicatory act is consistent only with the act of a guilty person, thus sowing the seeds of a conclusion which is yet to be reached upon the high criminal standard. So the tests laid down for their acceptance as evidence of implied admissions by the accused, in cases such as Lucas, Edwards and Zoneff, have been expressed in terms which, if anything, emphasise the seriousness of the implication to be drawn from such acts. Consequently, despite the conclusions reached by the majority judgment in Edwards and confirmed in Zoneff that lies and other implicatory acts ordinarily need only be established to a lesser standard of proof, the requirements import a far greater significance to the conclusions than if they were mere strands in a circumstantial case, as they frequently are. If one looks to the Lucas test, as qualified and expanded in Edwards, then it is not surprising that counsel in certain cases do not seek, or ask for further elaboration of, a "consciousness of guilt" direction, inasmuch as by concentrating on so many aspects of their client's untruthfulness (or whatever otherwise is relied upon), they may well fear that over-emphasis will give undue prominence to what might thereby be seen as damning evidence. This would be the more so whenever the onus is properly to be limited to the balance of probabilities. It is only where the prosecution case has placed reliance on some obvious act of consciousness of guilt that counsel will normally seek that the judge give an appropriate and full warning, largely because prosecuting counsel would have already laboriously traipsed through the necessary foothills. It would also explain in the present case why counsel did not ask the judge to identify each of the lies relied upon, a good thirty or so in all, for fear, I would suspect, that repetition would merely drive home their client's mendacious conduct, although, as Edwards[79] and Zoneff[80], in particular, have emphasised, the identification of the lies relied upon is essential to a full and proper charge on the subject.

[170]

It is not desirable here to reach conclusions about the case for renaming the concepts presently hidden under the umbrella of "consciousness of guilt", for that must now be left to the High Court. Recently, however, views have been expressed as to the desirability for change in the Canadian Supreme Court[83], in the High Court[84] and in this Court[85]. The term there favoured is "evidence of post-offence conduct". I respectfully support the desirability of a change in description, certainly for cases where the burden is merely on the balance of probabilities, but, with the greatest of respect, I would not favour the term proposed.[86] "Post-offence conduct" is certainly neutral, but it fails to convey either the subject matter or the risk sufficiently. Moreover, if I may say so, there are many more examples of post-offence conduct which the Crown can legitimately call in aid as relevant to proof of a prosecution case but which have no connotations of "consciousness of guilt". Without examining them in detail one may point to what has come to be called "retrospectant evidence". Of course, not all such evidence relates to conduct of the accused but there are many examples of it which would not satisfy the tests in Edwards but which clearly may be adduced by the Crown in proof of its case.[87] Naturally "consciousness of guilt" evidence has been treated as one category of retrospectant evidence but there are other kinds of evidence relevant to proof of a prosecution (or defence case) which may be so characterised. Frequently there is evidence of continued conduct by the accused which may by inference lead to the conclusion that the accused has done the charged act or had a guilty intent when carrying out some undisputed act. Failure to give an explanation of certain acts, such as possession of stolen goods or their sale at an undervalue, may be relied on in certain circumstances, without it being suggested that those acts must satisfy the tests for evidence of consciousness of guilt. Again the prosecution may seek to lead evidence of a changed relationship, such as the accused living with or marrying the deceased's former spouse. It is unnecessary to examine additional examples.

[184]

If I were to differ from the analysis of Brooking, J.A., it would be only on matters of emphasis, albeit that it can be argued that slight changes of emphasis have been significant in the development of the common law relating to complicity. I would mention only his Honour's preference[105] for the analysis and treatment of the subject in Smith and Hogan on the Criminal Law (9th ed.) Chapter 7. Although the chapter contains a learned and illuminating discussion, I am inclined to the view, with the greatest of respect, that it tackles the subject back-to-front. By that I mean that, in that chapter which is headed "Parties to Crime", the author deals first with accomplices and accessorial liability[106] before turning to the subject of "joint enterprise", albeit even then only in the context of "secondary liability".[107] Apart from another brief reference to liability as a "principal"[108] I could discover no reference in that work to the concept of acting in concert, as such, while the author seeks to treat the acts of a possible second (or other) principal in the course of a joint criminal enterprise as "governed by the ordinary principles of secondary participation".[109] I believe that approach to be inconsistent with the approach of the members of the High Court in Osland v. The Queen[110] and especially that in the detailed discussion by McHugh, J.[111] In Australia the emphasis has been, at least in recent years, on enquiring in the first place whether the participants to an alleged crime have acted in concert, in which case, subject to the necessary proof of intention, each party is held responsible for the acts of the other, and then secondly asking whether the accused can only be held responsible as an accessory to another party's acts, either by counselling or procuring those acts or by aiding and abetting their carrying out.[112] That there is this important difference in emphasis is, I believe, recognised by Professor Smith himself[113] and by recent Australian academic writers such as Professor Lanham, who has written extensively on this subject[114], and the recent Australian work, Bronitt and McSherry: Principles of Criminal Law (LBC, 2001).[115] The basis of the Australian approach[116] is even mentioned in passing by Professor Smith; see R. v. Macklin and Murphy[117], referred to in Smith and Hogan[118] and in, e.g., Osland[119].

At a glance

Court

Decision date

Before

Source

Judgment (331 paragraphs)

Parties