R v Franklin [2001] VSCA 79

5. In his charge to the jury in the applicant's trial, the learned judge, addressing the matter of complicity, gave the jurors the following directions.

"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 ...".

"To return a verdict of guilty of murder against him you would need to be satisfied beyond reasonable doubt that he, Lance Franklin, intended through the actions that were being undertaken either by him or at his behest and under his control, to kill the deceased or cause really serious bodily injury to him."

13. Early in the trial at a time he deemed appropriate, the learned judge had given the following directions to the jury:

"Obviously when you come to look at a question like that you would have regard to what other people might have done, and what act or acts can properly be attributed to him, either because he performed them personally or because he directed their performance or associated himself with them. ... And you would look at the independent behaviours of other people and be concerned to direct your attention to the question has the Crown established beyond reasonable doubt that actions which he performed, or actions with which he associated himself in this legal sense, so that they can be attributed to him effectively as his actions were performed, the Crown would have to establish that such actions caused the death of the deceased and that the actions for which he was legally responsible, either in the sense that he performed or made them effectively his own actions, were carried out with an intention to kill or to cause really serious bodily injury."

17. In an exchange with counsel during the course of the plea which followed the applicant's conviction, the learned judge explained why he had directed in the above terms.

"HIS HONOUR: I really had this matter go forward to the jury on a very, very limited basis in order that what was essentially asserted as the underlying proposition was starkly before the jury rather than confused in a galaxy of legal concepts of concert contemplated through different mechanisms. That was said at the outset. The trial was proceeded with on that foundation, it was argued by both counsel on that proposition, and it seemed to be far more realistic in the circumstances that it was presented in that limited fashion than, as I said, by reference to convoluted legal concepts which didn't tie in with some other thing. If anything, it was more favourably presented than might technically otherwise have been possible."

21. I would infer that his Honour was attracted to directions in these terms by the unusual circumstances disclosed by the evidence. The infliction of injury to the deceased occupied, for a murder case, an unusually long period during which the applicant was absent for substantial periods when others did violence to the deceased. Attempts at simplification of directions by trial judges ought, prima facie, to be supported by appellate courts and it is with regret that I have come to conclude, for the reasons expressed by Brooking, J.A. in his judgment, that the learned judge's attempt constituted misdirection.

24. I am, however, of the opinion that no miscarriage of justice occurred. Upon his trial the applicant's counsel suggested that the jurors should not be satisfied to the requisite standard on the evidence that the applicant had so directed his confederates that their actions effectively became his. The essential issue joined, however, was that the jury should not be satisfied that the applicant possessed a murderous intent at material times.

27. In my view no reasonable jury properly directed could have entertained a reasonable doubt on this issue. The evidence admitted of but one conclusion. - whatever his intention during the initial blows on the deceased - that thereafter, under the house, the applicant formed an intention to inflict really serious bodily injury on the deceased and maintained that intention. That view is based entirely on the acts of violence personally administered by the applicant and his relevant utterances.

30. The evidence of Wade Russell provides a convenient summary of part of this evidence.

* "Lance (the applicant)...grabbed an aluminium baseball bat and walked over and hit Joel (the deceased) on the back of the head and started asking where his stuff was." (155) "My brother straight away put his hands up to the back of his head and crouched down..." (156) "He (the applicant) said, `You're a fucking lying dog'." (157) * "...and then the second blow came in...roughly around the same area at the back of the head." (157) * "He (the deceased) went down to a squat on the ground and holding the back of his head...I saw a mark on the back of his head that looked like blood." (157) (The witness then identified "the bat used", a metal baseball bat Exhibit "C".) (After the second blow the applicant said to the witness) "Youse are fucking lying, you, I'm going to shiff you (meaning stab) five or six times just for knowing something about it." (157-158) * (Under the house.) "You are fucking lying to me...I'm going to break your wrists with the bat." (165) "Crack, he (the applicant) hit him (the deceased) on the wrist with the bat. Joel's cried out. (The applicant) swung the bat onto his wrist." (166) * "(The applicant) had the bat in his hand at the time, started swinging at Joel more because he was making a noise, crying out. The more he cried out the more he got hit...the arms the ribs the legs. Wherever the bat would land." (166) "(My brother was bleeding) from the hits he copped in the head, his nose was definitely bleeding. I don't know if his mouth was or not. There was that much blood coming out I couldn't tell if it was from his nose or his mouth as well." (169)

(At this point, as the judgment of Ormiston, J.A. shows, the deceased pretended that the stolen goods were in the roof of his home and the applicant departed to look for them.

* Before he did so he said: "Don't lay into him (the deceased) too much...he could be telling the truth. We don't want to hurt them too much, just wait till I get back." (The applicant) said if he didn't find the gold he would "fucking kick the living fuck right out of you." (The applicant added that he hated climbing up on roofs because he hated spiders.) (171) (The applicant then returned.) * "Eventually (the applicant) came back...got the bat off Alan and started laying into Joel pretty badly. I could see the expressions on (the applicant's) face. He was pretty much trying to give it everything he had, yes." (177) "(The hitting) just seemed continuous...mainly in the shoulder blade area. (The applicant said) `I looked and its fucking not in the roof, where is it?' Crack, crack, crack with the bats." (Joel was tied up at the time and suspended from the bearers.) (177) "(The deceased) was also hit in his shins and his arms. He was putting out like a cry or a moan or a groan. Every time he made a sound out of his mouth he was hit more." (177) "Joel copped another hiding from (the applicant) again and (the applicant) said, `This dog here is lying to me' (referring to Joel). He has gone up and laid into Joel." (183)

(Somewhat later, the deceased having suggested, as Ormiston, J.A.'s judgment again shows, that a person called Hexter had something to do with the raid on his house, the applicant and another man went to the Russells' home a second time and saw Hexter. Upon the applicant's return to where the deceased was:)

* (The applicant) said "Where the fucking hell is the shit? I just want the stuff back and you guys can go." (184) * "He (the deceased) was laid into some more by (the applicant)...with the baseball bat into his shoulder blades and his shins...he was tied up..." (184) "I didn't cop near as many blows as what Joel did." (184)

(Thereafter the applicant returned the witness to his home. His mother, upon seeing him, burst into tears. The witness continued:)

* "(The applicant) turned round and said to my mother `Don't worry, your other son is in better condition than him.' Letting out a bit of a giggle after he said that." (191)

46. This last statement of the applicant to the deceased's mother is significant for present purposes. Although couched in sickening humour, it was open to the jury to use it as an admission of both knowledge as to, and approval of, the condition of both the deceased and his brother at that time. That knowledge and approval throws light on the applicant's intention vis a vis the deceased. The condition of the deceased is vividly conveyed by the evidence of Wade Russell and it is convenient to here cite from the judgment of Ormiston, J.A.

"At that stage he said that the area around Joel's shoulder blades were dark red and the middle of them was black. His legs were coloured dark purple. Wade did not see his brother try to move or wriggle at all: Joel was just hanging and Wade was not sure whether his chin was just touching his chest or not. His brother's breathing was `wheezy, very stiff, like, yes, just like very hard to breathe'. He was still bleeding but his T-shirt was mopping up the blood dripping off of his face, primarily from the gash on the top of his head. There was also blood on the front of his neck and running down to his chest. His head was swollen, indeed out of shape and there was a very distinct lump on one side."

50. The deceased, Wade Russell said in his evidence, was "definitely worse off" than he was. Wade Russell was admitted to hospital with no less than 29 injuries to various parts of his body.

53. In my opinion, no reasonable juror could do other than conclude, according to the appropriate standard, that if the applicant did not form an intent to cause really serious bodily injury to the deceased at the time of the initial two blows, he certainly formed such an intent thereafter. That such an intent was maintained at material times is, in my view, emphatically demonstrated not only by the applicant's utterances previously set out, but also by the applicant's conversation with the covert police officer while in custody. In that conversation the applicant contemplates the death of Joel Russell with appalling equanimity. He also envisages a situation where Wade Russell alone can provide the most damaging evidence against him and wherein Wade can be dissuaded from giving that evidence. Throughout the conversation there is not the slightest expression by the applicant of disassociation with Joel's fate or any disapproval or regret as to what had been done to him. Again, it is convenient to cite part of the judgment of Ormiston, J.A.

"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."

57. I should add that no reasonable juror could regard the applicant's absences from his home as being driven other than by a determination to recover his property and, by an act of unmitigated arrogance, the delivery of terror to the Russells. Indeed, nothing other was ever suggested on his behalf at his trial.

60. In his final address to the jury, counsel for the applicant said to the jurors "I invite you to return a guilty verdict of manslaughter". After dealing with the concept of manslaughter by an unlawful and dangerous act, counsel added, "Now Mr Franklin invites you to convict him of that crime of homicide, of manslaughter".

63. At the close of his address, counsel said, "You might well think that his actions, atrocious as they are, when they are happening, neither have the intent nor the desire for murder, but are quite clearly both very, very unlawful and quite clearly very dangerous. They contributed to the death. Causation is exactly the same for manslaughter, the judge will tell you, as murder, and at the end of the day not only because of the medical evidence as to what actually caused his death, but as to the ambiguities of it all, what we simply say to you is that this man is not guilty of murder, but unfortunately, guilty of the crime of manslaughter."

66. So there, in my opinion, in the most grave setting that a court room can provide, the applicant, through his counsel, accepted his criminal liability in law for

the death of the deceased and the jury were thoroughly entitled to act on this acceptance. In the absence of any suggestion to the contrary, the applicant must be taken to have instructed his counsel accordingly. Nor has there been any suggestion that in making the concessions he did, counsel was negligent or guilty of forensic errors of judgment.

70. It follows in my opinion, that the jury could not have reasonably entertained doubt of the applicant's guilt of murder. Not only was there overwhelming evidence of a murderous intent in him at material times, but there was uncontradicted evidence of the infliction without lawful justification of serious violence on the deceased by the applicant personally. The conscious, voluntary and deliberate nature of that conduct, together with the causal link between it and the death of the deceased, were also formally and solemnly conceded.

78. This case raises important questions about when a person may be regarded as having actually perpetrated a crime. (For reasons which will become apparent I am not concerned in this judgment with persons who may be regarded as in a sense actual perpetrators by reason of the doctrine of concert.) The applicant, convicted of what might be described as murder by prolonged torture, now complains that the judge enlarged the scope of criminal responsibility by directions to the jury to which no exception was taken at the time but which are now said to be not only unconventional but fundamentally erroneous. In this and other respects the case is yet another unhappy example of an attempt to overturn a conviction on points not taken below, a state of affairs deplored in R. v. Challoner[2].

81. Notwithstanding the applicant's assertions to the police that he had had nothing whatever to do with the killing of the 14 year-old boy, Joel Russell, and the

infliction of serious injuries on his brother Wade, the trial was, inevitably, conducted on his behalf on the basis that he had in fact, on the afternoon of 14 January 1997, taken the two brothers to his home and personally attacked them both. Indeed, he pleaded guilty to the charge of intentionally causing serious injury to Wade. The trial was also conducted on his behalf on the basis that several other men had been present at his home and that they too had attacked and injured Joel and his brother. It was common ground that the applicant had been absent from his home for a number of substantial periods of time and that the attacks had continued in his absence. The weapons used included two metal baseball bats (one at least filled with sand), a heavy chain and a brick, while threats were made with a pair of bolt-cutters. The injuries inflicted were most grievous.

85. The unusual feature of the case is that the judge did not charge the jury along conventional lines about participation in a crime. He did not tell the jury about concert and aiding and abetting. Instead, he directed them that the accused was criminally responsible for his own acts and for the acts of other persons who were under his control. This was a novel direction. The Crown went to the jury on the basis that death had been caused by the combined effect of all the injuries and that all the injuries had been inflicted either by the accused personally or by persons under his control.

88. It seems that the Crown had originally intended to put its case along conventional lines. During the argument on the stay application - an application the refusal of which is not now complained of - senior counsel for the Crown was comparing the applicant's conduct with that of the other offenders. The request for a stay did not raise the technical question how the applicant and other persons had participated in a crime, but for the purpose of emphasising the applicant's prominence in events counsel said:

"So up to that point of time he is an accessory before the fact, he is a principal in the first degree and when the co-offenders get involved becomes a principal in the second degree in respect of blows they inflicted. On any view he is well and truly up to his neck in the mischief taking place at his home."

92. After a stay had been refused, counsel for the applicant said that it seemed that the Crown must be relying on common purpose. His Honour at once questioned this:

"HIS HONOUR: I'm not sure I understand what you mean by common purpose. MR BRUSTMAN: The Crown would have to put that these acts were done within the contemplation of a certain result. HIS HONOUR: By him? MR BRUSTMAN: Yes, by him and others. HIS HONOUR: No, not by others, but by him. They don't have to establish that the others contemplated these things at all. They have to establish that the others assaulted and that they intended, but it's not a Johns scenario. MR BRUSTMAN: I don't know if it is or isn't. I would have thought it is that the Crown would be putting - - - HIS HONOUR: I'm sorry, have I interpreted your position correctly? MR RAPKE: It's not put on that basis. HIS HONOUR: It's not put on that basis at all, and I wouldn't have thought it would be."

96. In the course of the Crown prosecutor's opening the judge said to the jury:

"So that if I intended to kill, we will pick someone in the court, we will try Mr Rapke, if I intend to kill Mr Rapke and I hand a the baseball bat to his junior and say, `Hit him for me, will you please' and he is good enough to do so then this is my act as much as it is his act. Do you understand that? That I have in fact controlled, directed and am indeed making myself a party to that particular act. This is the point at which a little confusion may have arisen because it really doesn't matter what was in the mind of the person who actually struck that blow. What matters is what is in my mind when I get him to strike that blow. Do you understand what I am saying to you? Because I think Mr Rapke at one point suggested in his comment that the accused or accomplice performed the act with the intention of causing the death or serious injury. Do you follow? Whereas I am saying to you that you have to be satisfied before you would be entitled to return a verdict of guilty against the accused man in the court that he was a party to the relevant acts which caused the death of the deceased and that he intended that those acts would bring about that death. Do you follow what I am saying to you, ladies and gentlemen? I will put this in a more complete and more satisfactory context later. I will have to deal with the notions of joint enterprise and so forth as you will appreciate. I wanted to make it perfectly clear that the intention with which you are concerned must be the intention possessed by the accused man. For him to be responsible for the crime of murder, he must be a party to acts which caused the death of the deceased and he possessed at the relevant time the intention that those acts would cause the death of the deceased or cause really serious bodily injury to him."

100. The reference to the need "to deal with the notions of joint enterprise and so forth" in this passage suggests that his Honour was at that stage contemplating a direction along conventional lines. But shortly afterwards the following discussion took place:

"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.]

104. After the prosecution's opening had been completed and the defence had made a brief statement of its position and before the first witness was called the judge gave the jury some directions of law in the course of which he said:

"Obviously when you come to look at a question like that you would have regard to what other people might have done, and what act or acts can properly be attributed to him, either because he performed them personally or because he directed their performance or associated himself with them. ... And you would look at the independent behaviours of other people and be concerned to direct your attention to the question has the Crown established beyond reasonable doubt that actions which he performed, or actions with which he associated himself in this legal sense, so that they can be attributed to him effectively as his actions were performed, the Crown would have to establish that such actions caused the death of the deceased and that the actions for which he was legally responsible, either in the sense that he performed or made them effectively his own actions, were carried out with an intention to kill or to cause really serious bodily injury."

108. In the course of his charge, having defined murder, the judge said:

"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 ...".

112. His Honour went on to emphasise that the intention with which the jury were concerned was the intention of the accused man, adding:

"To return a verdict of guilty of murder against him you would need to be satisfied beyond reasonable doubt that he, Lance Franklin, intended through the actions that were being undertaken either by him or at his behest and under his control, to kill the deceased or cause really serious bodily injury to him."

116. Something said by the judge in the course of the plea shows why he charged the jury as he did:

"HIS HONOUR: I really had this matter go forward to the jury on a very, very limited basis in order that what was essentially asserted as the underlying proposition was starkly before the jury rather than confused in a galaxy of legal concepts of concert contemplated through different mechanisms. That was said at the outset. The trial was proceeded with on that foundation, it was argued by both counsel on that proposition, and it seemed to be far more realistic in the circumstances that it was presented in that limited fashion than, as I said, by reference to convoluted legal concepts which didn't tie in with some other thing. If anything, it was more favourably presented than might technically otherwise have been possible. MR BRUSTMAN: I agree with everything Your Honour says."

120. The only authority mentioned in the discussion about participation before the verdict was R. v. Johns[3], which was merely said by his Honour in passing not to be relevant.

123. No directions were given to the jury about concert or aiding and abetting and the jury were most explicitly instructed that the only suggested murderous intent for their consideration was that of the applicant himself. Accordingly the conviction cannot be supported on the basis that the applicant acted in concert with the other men or aided and abetted them. (Nor, for the same reason, quite apart from the question of the effect of the applicant's presence for much of the time, can the conviction be supported on the basis that he was an accessory before the fact.)

126. What the jury was told by the judge, at different times in the course of the trial, about participation in crime was not always substantially the same. The example given when he intervened during the Crown prosecutor's opening[4] might well be thought to suggest that a mere request acted upon will make the act that of the person requesting it. (In the actual example given by the judge he, being present, would be liable as an aider and abettor, but this is not the kind of participation that was left to the jury.) This early direction went on to inform the jury that the accused must be a party to acts which caused the death; but that in itself gave the jury no test to apply. Just before the first witness was called the judge gave the direction I set out above in which the jury were told that the acts of others could be attributed to the accused either because he directed their performance or because he associated himself with them. What constituted "association" and how it differed from directing is not clear. The charge itself was more specific, the jury being told that the other persons had to be acting "at his behest and under his control". On the other hand, they also had to consider the effect of the much less clear direction given a little earlier:

"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."

130. What the judge told the jury about participation was accepted as correct by both the Crown and the accused. But were these directions nevertheless unsound? Unusual they certainly were. In many cases of offences against the person there is a ringleader, and quite often a ringleader who may be said to dominate the other offenders. Yet it is never, so far as I am aware, suggested that the usual directions about concert and aiding and abetting should be replaced or supplemented by a direction that if the ringleader so controlled the others that their acts can be attributed to him (a vague and almost question-begging test, it might be said), then the acts of the others are in contemplation of law the acts of the ringleader. In innumerable cases, where conventional directions were given, judges have, if the present directions are sound, overlooked a simple and obvious mode of participation in crime that was on the evidence relevant. It is well accepted that an accessory before the fact may play the paramount role. "The accessory may play a dominant ... role in respect of the commission of the crime".[5] The accessory may be the master mind and guiding spirit and the others mere tools.[6] In early writings it is commonplace to find "command" as one of the verbs used to describe the role of the accessory before the fact.[7]

133. The differing ways in which in the present case the judge expressed the supposed principle, and the very fact that he thought it necessary to speak in terms, not simply of direction or control, but of direction or control such as to make the acts of one person attributable to another, throw doubt on the principle itself. What is to mark off the direction or control sufficient in law to fix the dominant person with responsibility from the direction or control which is insufficient? To tell the jury they must be able to say that the actions of the other persons were "effectively his actions" or "attributable to the accused man as his actions" hardly provides them with a workable test. They are to attribute actions to the accused if they think them to be attributable. The judge's reference to the accused's either directing the performance of acts or "associating himself" with those acts similarly provides no workable test.

136. In what circumstances may someone who does not physically perpetrate a crime be regarded as the actual perpetrator on the basis of action through the agency of another?[8] The doctrine of "innocent agency" has been recognised since the sixteenth century.[9] So one who procured a third person to give poison to the victim in the procurer's absence was liable only as an accessory before the fact if the intermediary knew it to be poison, but liable as the actual perpetrator if the intermediary knew nothing of the poison, "or else a man should be murdered and there should be no principal".[10] The doctrine was "a rule of necessity", founded in "that justice which is due to the publick".[11] The innocent agent has been described for the last two or three hundred years as a mere instrument,[12] although other expressions have been used.[13] The law regards the puppet-master as causing the mischief done by the puppet. "Innocent agency" has been considered a number of times in recent years.[14]

139. In the days when an accessory before the fact could not be indicted as a principal[15], where the instigator of an offence was proceeded against as a principal and was found to have committed the crime through an innocent agent, conviction would follow, the innocent actor being regarded as the tool of the prisoner. But if the actor was not innocent but guilty of the offence, the instigator[16] could not be convicted on an indictment charging murder as opposed to one alleging liability as an accessory before the fact to a felony committed by another.

142. An illustrative case is R. v. Stewart & Dickens[17], where the prisoners were charged with uttering a forged bank note. The evidence was that they had been paid in advance for a quantity of forged notes. They took precautions to keep themselves at a distance from the delivery of the notes to their purchaser reminiscent of those employed nearly two hundred years later by dealers in drugs. The purchaser Platt was ultimately directed by them to a woman called Anne, and he and Anne walked along the road together until she gave him a number of parcels from her reticule. Counsel for the prisoners contended that they could not be convicted on an indictment charging them as principals, the evidence going only to show guilt as accessories before the fact to a felony by the woman called Anne. Garrow, B. let the case go to the jury, who convicted. Judgment was respited so that the opinion of the judges could be taken at one of the numerous informal meetings held for years before the establishment in 1848 of the Court for Crown Cases Reserved. The judges held the conviction wrong, thinking it clear that the woman Anne was a "guilty agent"[18] and that the prisoners were only accessories before the fact. They directed that the prisoners be recommended for a special pardon extending only to this offence and that they be detained till the next assizes, to be tried as accessories before the fact.

145. This case may be compared with R. v. Soares & Ors[19], R. v. Valler & Ors[20] and R. v. Giles[21]. In G_iles_ the charge was also one of uttering a forged bank note. The prisoner gave the note to a man named Burr, who used it to buy meat from a butcher. For the prisoner it was contended that, not having been present when the note was handed to the butcher, he ought to have been indicted as an accessory before the fact and could not be convicted as a principal. The jury were directed that if they found that Burr knew the note was forged, the prisoner could not be convicted, but that if Burr was employed by the prisoner as an innocent instrument his act would then be the act of the prisoner, who might properly be convicted on that indictment. The jury convicted the prisoner and at the judge's request added an express finding, which was that Burr did not know that the note was forged. A point having been reserved for the consideration of the judges, they determined that it was clear on the evidence that Burr knew that the note was forged but that the conviction could be sustained on another, not presently relevant, ground.

148. Of particular interest is R. v. Manley[22]. An apprentice, charged with larceny, had persuaded his master's nine-year-old son to take money from his father's till and give it to him. The prisoner's counsel[23] elicited from the nine-year-old in cross-examination that he had often taken money from the till for other boys, which evidence he later relied on for a submission that the son knew what he was doing was wrong when he took money from the till for the prisoner. Cox submitted that the evidence did not sustain an indictment for larceny, since the son, being criminally responsible, was guilty of larceny and so the prisoner was an accessory before the fact and could not be convicted on an indictment charging him as a principal offender. Counsel distinguished the case of an innocent agent: if the child did not know he was doing wrong he committed no crime and the prisoner was liable as principal. The particularly interesting feature of this decision for present purposes lies in the response of the trial judge, Wightman, J., who raised, but later himself rejected, the suggestion that the prisoner could be liable as principal even if the agent was a guilty one. For initially the judge was not persuaded by the argument put by the prisoner's counsel, saying that if "an act done through the medium of an innocent agent makes the prisoner a principal, how do you shew that he is not a principal where the act is done through the medium of a responsible agent?" But in the end the judge accepted counsel's submission, subject only to the proviso that it was for the jury, not the judge, to determine whether the child "knew that he was doing wrong, or was acting altogether unconsciously of guilt, and entirely at the dictation of the prisoner."

151. This last case is of interest because it is the only one of which I am aware in which a judge has expressly considered whether, as a matter of causation[24], the act of someone other than an innocent agent may be attributed to an accused person. In all other cases of which I am aware the judge has simply proceeded on the basis that it may not.

154. Administration of poison through a third person has been a favourite example in discussions of "innocent agency" since the earliest days. An actual case is R. v. Williams & Rees[25]. The prisoners were charged with attempting to administer poison with intent to murder, a statutory offence. They obtained some arsenic and gave it to a simple-minded man named Edwards, telling him it was poison and asking him to slip it into a pint of beer, which he was to hand to the victims. Edwards at once went to the victims' house, handed the poison to them and told them everything that had happened. Although of rather weak intellect, he was well aware that if he had done as requested death would have resulted. The prisoners were convicted and Rolfe, B., in respiting the judgment, observed that if the poison had actually been administered Edwards would have been the sole principal felon, the prisoners being accessories before the fact. He accordingly reserved the question whether the prisoners could be convicted of an attempt where, if the attempt had succeeded, the agent would have been the sole principal felon. Fifteen judges met to consider the point and held the conviction to be wrong.

157. Another example of a prisoner's attempting to escape conviction on the ground that he was indicted as a principal but was only an accessory before the fact is to be found in R. v. Bull & Schmidt[26]. The attempt was unsuccessful because the accused had acted through an innocent agent. Tindal, C.J. said:

"That reasoning would be good if the actual maker had been a guilty party, because he would stand in a different position to those who had counselled him to the commission of the crime. But it altogether fails where the immediate agent is an innocent one. Then those who have plotted and arranged that he should do the particular act are themselves principals."

"If a person does an act of this kind with a guilty intent, he is not the agent of anyone. If he does it innocently, he is the agent of some person or persons ...".

165. These remarks of Alderson, B. are illuminating: the notion of agency will supply a causal connection between instigator and the acts of an innocent agent, but where the actor is not innocent the law will not treat him as the agent of anyone. The remarks should be borne in mind in considering the views of Hart and Honoré and Professor Kadish, to which I shall come presently. I should make it clear at this point that nothing I say in these reasons has any reference to the body of law developed in relation to vicarious liability in the criminal law.[27]

168. Of interest are provisions found in the draft bill[28] prepared by the Royal Commissioners[29] in 1846:

"ART. 2. Every one is a principal in respect of a criminal act who either does it or causes it to be done otherwise than by a guilty agent ... . ART. 3. A party shall be deemed to cause a criminal act to be done within the meaning of the last preceding Article who wilfully causes it to be done by means of any mechanical device or contrivance, or by any innocent person (whether such innocent person acts unconsciously or under compulsion, or be or be not the person to whom injury is done), or by such means combined ...".

172. "[I]t is not the ordinary principles of agency which determine who are parties to the crime of murder and what are their categories".[30] I have looked in vain for any suggestion in Australian, English and United States texts that, except in the case of "innocent agency" and the special case of vicarious liability, one person's acts may be attributed to another as a matter of causation so as to give rise to criminal liability. Not only have I found no statement to that effect, but, as one would expect in the light of the authorities, statements can be found inconsistent with the view on which the present case was allowed to go to the jury. According to Russell on Crime, vol. 1, p.129, "in case of absence from the scene of the crime, to make a man responsible as a principal offender, he must have set in force physical agencies or have employed an innocent agent". Archbold, Criminal Pleading, Evidence and Practice (1994), s.18.7-8, says this:

"Nor is it necessary that the act should have been perpetrated with his own hands; for if an offence is committed through the medium of an innocent agent, the employer, though absent when the act is done, is answerable as a principal ... . Thus, if a child under the age of discretion, or any other person who is not criminally responsible (whether by reason of defect of understanding, ignorance of the facts, absence of mens rea or other cause) is incited to the commission of any crime, the inciter, though absent when the act constituting the crime is committed, is liable for the act of his agent, and is a principal. ... . The same principle will apply where the crime is committed through the agency of an animal. If, however, an agent is aware of the nature, etc, of his act and is acting voluntarily, he is a principal, and the employer, if absent when the act was committed, is a counsellor and procurer ...".

Gillies, Criminal Law, 3rd ed., p.152 admits only the case of innocent agency and the exceptional case of vicarious liability. Perkins, Criminal Law, (1957) p.557 defines "perpetrator" as "one who, with mens rea, has caused a socially-harmful occurrence either with his own hands, or by means of some tool or instrument or other non-human agency, or by means of an innocent agent." LaFave and Scott, Criminal Law, 2nd ed. p.570 say that one who uses an intermediary to commit a crime is not ordinarily a principal in the first degree and go on to recognise only the exception constituted by innocent or irresponsible agents. Perhaps the most useful treatment is to be found in Smith & Hogan, Criminal Law, 9th ed., Chapter 7. Particular note should be taken of the statement at p.124:

"[C]ausing another person, X, (not an innocent agent), by persuasion or otherwise, to commit the crime is not causing the actus reus. X's voluntary intervening act `breaks the chain of causation'".

"b) Causation and commission of the office [sic] as a principal. If a procurer were taken to have caused the commission of the offence for all purposes he would become a principal. If D2, having procured D1 to murder P, were taken to have caused P's death, i.e., killed P, he would satisfy the definition of murder as a principal. Anyone whose assistance or encouragement in fact caused another to commit a crime would be a principal. The separate body of law of accessory liability is based on the assumption that the accessory does not cause the actus reus. The Draft Code, cl. 17(3), accordingly provides: `A person who procures, assists or encourages another to cause a result that is an element of an offence does not himself cause that result so as to be guilty of the offence as a principal except when - (a) section 26(1)(c) [innocent agency] applies; or (b) The offence itself consists in the procuring, assisting or encouraging another to cause the result.' A procurer of an innocent agent to commit a crime is taken to have caused the actus reus for all purposes. An alleged procurer of a guilty agent must be proved to have in fact caused the act of the guilty agent; but, in law, he is not regarded as having caused the actus reus."

182. More than four hundred years ago, the law, faced with the need to fix responsibility upon those who committed mischief through the medium of persons who could not be held criminally responsible, fixed responsibility by treating the instigator as the cause of the mischief. Where the actor was criminally responsible, there was neither the need to attribute, nor the doctrinal warrant for attributing, the conduct to the instigator. As regards need, the actor was criminally responsible and the instigator could be held criminally responsible as an accessory before the fact to the actor's crime. As regards doctrine, the notion that the acts of a normal person, not labouring under some serious mistake of fact, were voluntary prevented the instigator from being viewed as the cause of the acts of the "guilty" agent. The same notion allowed the little child, or madman, or even the sane adult unaware that the substance was poison, to be treated as a mere instrument for the purposes of causation. Some remarks of Tadgell, J. are in point:

"As Professor Glanville Williams has pointed out, `the "perpetrator" (or if you will, "the principal") means, and means exclusively, the person who in law performs the offence': Textbook of Criminal Law, 2nd ed., p.329-30. At p.392, speaking of causation in the criminal law, and of the operation of the doctrine of novus actus interveniens (which in substance reflects the law's attitude that a man is primarily responsible only for what he himself does or incites) he observed, as I would respectfully think with perfect correctness, that: `The novus actus rule is of fundamental importance at common law because it underlies the doctrine of accessoryship. If D2 incites D1 to kill V, and D1 complies, D2 has prompted (in ordinary speech, caused) D1 to perpetrate the crime, and is himself an accessory to the crime, but he has not in law caused V's death ... If it were not for the novus actus rule the successful inciter would be liable as a perpetrator, which would require the law of complicity to be rewritten.' Professor Glanville Williams there also referred to the complementary statement by Professor George P. Fletcher in Rethinking Criminal Law, Boston, 1978, p.582, that: `Aiding a crime of a responsible, self-actuating perpetrator does not "cause", "control" or "determine" the latter's conduct. The accessory contributes to the crime, but the execution is not his doing.'"[31]

186. Drawing on the work of Hart and Honoré, Causation in the Law, 2nd ed., Professor Kadish has written much that is relevant to the present case.[32] It would be possible to quote at length from what both Hart and Honoré and Professor Kadish have written. Their helpful analysis supports the view that it would be wrong to say in the present case that the applicant, by reason of the "control" which he exercised, should have the acts of the other men attributed to him so that he may be regarded as having caused the injuries which they inflicted. Some of the theses of Hart and Honoré[33] are that for the purposes of the criminal law one person does not cause another to act where the act of that other is wholly voluntary; that the act is wholly voluntary for this purpose even though an adult responsible person has used persuasion, by a request, or the promise of a reward, or playing on the feelings; that an instigator may be said to cause another to act where the instigator intends the act to be done and the act is not wholly voluntary, and that the act is not wholly voluntary if it is induced by coercion, or the issuing of commands to an inferior, or deceit; that use of an "innocent agent" does not negative causal connection, since there is no wholly voluntary act which intervenes. This approach is adopted in the article by Professor Kadish,[34] who concludes:[35]

"As Hart and Honoré's study has shown, a voluntary action is treated as the terminal point of a causal inquiry beyond which the inquiry does not usually proceed. The primary party's voluntary act is his own action. No one and nothing caused him to act as he did. He chose to act."

190. I have not overlooked what was said by McHugh, J. in Osland v. R.[36]:

"Moreover, as Hart and Honoré point out in Causation in the Law[37], a person will be a principal to murder where his or her only `act' is to incite a person over whom he or she exercises, as a matter of fact, a degree of power to kill the victim[38]. On the evidence, it was open to the jury to conclude that Mrs Osland was in just such a position of influence over her son David Albion and that she exercised that power. The fact that her involvement in the killing was considerably greater than mere incitement can, I think, only strengthen the conclusion that she was in her own right a principal in the first degree. Having regard to the alternative case that could have been made against Mrs Osland, it is hardly surprising that her experienced counsel did not raise any point as to whether Mrs Osland's acts had contributed to her husband's death or whether she could be convicted if her son was not convicted."

194. The passage from Hart and Honoré specifically cited by McHugh, J. concerns the circumstances in which a person may be said to have caused death where the death was physically brought about by the act of another. It is said, here and elsewhere in the book, that this will be so only if the intervening actor's conduct is not wholly voluntary and it is said that accordingly a person may be guilty of homicide by inducing another to kill, or to do an act dangerous to life which in fact results in death, if the means used amount to coercion, deceit or the exercise of authority, but not if mere persuasion of an adult responsible person is employed. Examples are then given of what would be homicide, including "to order an inferior to do a specifically dangerous act, in the absence of justification, which results in the inferior's or another's death". Other references to the exercise of authority are made in the book. So at p.52 there is mention of a person's being induced to act "by threats, coercion, the exercise of authority, or false statements". At p.57 another example is given of cases in which the intermediate act is not fully voluntary: "where the first actor resorts to threats or gives orders which the second is under some duty to obey". These and other passages in the work of Hart and Honoré make it plain that when at p.364 they speak of an order given to an inferior they do not intend to comprehend cases in which the alleged murderer is nothing more than a ringleader having the position of authority which such things as age and dominant personality may give.

197. There was nothing in the present case to take it outside what I might call the ordinary situation of ringleader and others. I have considered the whole of the evidence bearing on the roles played by the applicant and the other men who attacked Joel Russell and on the relationship between them. Most of the men were much younger than the applicant, although one of them, Kelly, was his own age. There is no suggestion that any of them was intellectually defective or misled by the applicant into believing that their actions were in some extraordinary sense justifiable. There is no suggestion of the exercise of control by the applicant over his companions by threats or coercion. There was evidence that one or two of the other men had a grudge against the boy and there was evidence of a considerable number of hostile, vicious acts by men other than the applicant done by them of their own initiative. The position disclosed by the material was accurately put by Wade Russell when he said:

"Well, I mean, like, they were all doing their own thing, but if he told them not to do something, they wouldn't, and if he told them to do something, they would."

201. Were it not for the matter to which I now turn, a retrial would have to be ordered on the ground of misdirection, notwithstanding the failure to take exception to what was said about attributing the acts of others to the applicant. But I think that when regard is had to the principles of the law of homicide governing the causing of death, to the state of the evidence and to the position taken up at the trial by the applicant's counsel, no reasonable jury, properly instructed, would have failed to convict of murder.

204. 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]

207. One such category is that of the infliction of injuries by two or more assailants, acting independently and at substantially the same time. In such a case, where there is no complicating factor which may be put forward as "breaking the chain of causation", it is enough for the jury to enquire whether the attack of the accused made a substantial contribution to the death. The present was such a case: the victim was subjected to a prolonged attack (extending on and off over some hours) by the applicant and a prolonged attack (also extending over some hours) by other men. It was not and could not have been suggested that there was some "intervening" or "supervening" or "superseding" act or event which "broke the chain of causation". Problems of the kind considered, for example, in Royall, did not arise. It was enough for the jury to consider whether the applicant's acts were shown to have substantially contributed to the death, even though the acts of the other assailants may also have been a substantial, and even a more substantial, cause. The issue of causation was to be resolved without any occasion to consider whether some intervening agency absolved the applicant. It was enough to consider what causal connection there was in fact, and so to ask whether, in the light of the medical and the relevant lay evidence, the injuries inflicted by the applicant had substantially contributed to the boy's death. This approach is supported by Royall and Osland and by authorities dealing specifically with death following the independent and substantially contemporaneous infliction of injuries by two or more persons.[43] The approach in the United States appears to be the same.[44]

210. Had the present jury been asked to consider the simple question whether, in the light of the medical and the relevant lay evidence, the injuries inflicted by the applicant had substantially contributed to the boy's death, it would have undoubtedly been open to them to answer it in the affirmative. I have read the whole of the lay and medical evidence bearing on the question and shall not summarise the evidence of the pathologist or the lay evidence about the attacks made on the boy by persons other than the applicant. The evidence of Wade Russell of the attacks by the applicant on his brother may be summarised as follows: in the bedroom the applicant hit Joel on the back of the head with a baseball bat, striking two blows; the second blow drew blood and caused Joel to squat down on the floor; after Joel had crawled under the house the applicant told him he was going to break his wrists with the baseball bat; as Alan Franklin held Joel's right arm on the ground, the applicant hit Joel on the wrist with the bat, with a crack, and Joel cried out; then, because Joel was crying out, the applicant hit him with the bat on the arms, the ribs, the legs - wherever the bat would land; Joel's nose was bleeding and the top of his head was bleeding; when Lance returned from his visit to Joel's home and said there was nothing in the roof, he hit Joel with the bat on the shoulder blades, the shins and the arms; this beating was continuous; the applicant was trying to give it everything he had and at this stage Joel was hog-tied, suspended from the bearers; he was moaning and groaning and every time he did so the applicant hit him again; when the applicant returned to the house after seeing Hexter, Joel "copped another hiding" from the applicant; this was with the baseball bat into his shoulder blades and shins and while he was still hanging hog-tied from the bearers.

213. None of this evidence was challenged in cross-examination and none of it was contradicted by any other evidence. The applicant's record of interview was simply an untruthful denial of any connection with the attacks. And he stood mute.

216. Not only was it open to the jury to find that the applicant's own acts substantially contributed to the death, but no reasonable jury properly instructed could have failed to make such a finding. I say this in the light of the evidence as a whole and without regard to the course taken by the applicant's counsel in relation to manslaughter. But when regard is had in addition to that course, it becomes even more clear that it would have been unreasonable for the jury to decline to make the finding. The applicant's counsel pressed the jury to convict his client of manslaughter. In addition, he urged them not to attribute any of the acts of the other assailants to his client. He was accordingly urging the jury to find that his client's own acts were a cause of the boy's death. At the end of his address he said:

"You might well think that his actions, atrocious as they are, when they are happening, neither have the intent nor the desire for murder, but are quite clearly both very, very unlawful and quite clearly very dangerous. They contributed to the death. Causation is exactly the same for manslaughter, the judge will tell you, as murder, and at the end of the day, not only because of the medical evidence as to what actually caused his death, but as to the ambiguities of it all, what we simply say to you is that this man is not guilty of murder, but unfortunately, guilty of the crime of manslaughter."

220. In addition, no reasonable jury properly instructed could have failed to find murderous intent on the applicant's part. True it is that the jury were directed that they should consider whether it had been proved that death was caused by acts "for which he was legally responsible, either in the sense that he performed them or made them effectively his own actions" and, consistently with this, were directed to consider whether at the time of those acts he intended to kill or cause really serious bodily injury. The question is whether a properly instructed jury could have failed to find that at the time of his own acts which substantially contributed to (and so in law caused) death he had the necessary specific intent. In my view they could not. They were misdirected about specific intent as a necessary result of the fundamental misdirection about the way in which a person can participate in a crime. This fundamental misdirection led to their being told to consider the issue of the accused man's murderous intent in relation to too wide a group of acts. They should have been told to consider whether the acts of the accused causing death were done with murderous intent. But the applicant's attitude to the injurious acts of the other assailants bore on the issue of the intent with which his own injurious acts were done. The jury should have been told this. Had they been given a full and correct direction, raising as the issue the applicant's intent at the time of his own acts which caused death and assisting them about what bore on that issue, they must have been satisfied of the applicant's intent to cause really serious injury.

223. The uncontradicted evidence of what the applicant did to Joel, and in what circumstances, is summarised earlier in these reasons and in the judgments of the Chief Justice and Ormiston, J.A. It is in my view enough in itself to constrain a finding of intent to cause really serious injury. But there is more. There is in addition the evidence of the applicant's attitude towards the infliction of injury by others on Joel. There is his plea of guilty to the intentional causing of serious injury to Wade Russell. From a number of things the applicant said, in his belief Wade had merely known of Joel's supposed intention to take part in a "run through", whereas Joel had in his belief taken part in the "run through" and stolen his property. He threatened to "shiv" Wade and later did stab him in the buttocks with a knife with a serrated blade. There is in addition his encouragement of the others in their attacks on both Joel and Wade and the nature, extent and circumstances of those attacks. There are also the threats he uttered. For example, he said to the brothers that if he did not find his missing property "I will fucking kick the living fuck right out of you" and he told Joel he was going to break his wrists with the baseball bat before one of the attacks which Ormiston, J.A. and I have described. In considering this issue of intent, the whole of Wade's evidence of what took place should in particular be read. Of course regard must be had to the whole of the evidence.

226. Other points are raised by the grounds of appeal. Ormiston, J.A. has dealt with these. I am pleased to be able to adopt his Honour's detailed statement of the facts. As to these other grounds of appeal I am, subject to one important qualification, content to express my agreement with what Ormiston, J.A. has written.

229. His Honour has dealt at length with ground 3, concerning lies and "consciousness of guilt", and complaining of the judge's remark to the jury, "Once you reach the conclusion ... that a man has lied because of consciousness of guilt of a specific crime, you realise, that you have just said, `He is guilty', and you would have to be satisfied beyond reasonable doubt of all of these matters before you could make that statement."

232. As Ormiston, J.A. observes, this closely resembles a direction in the charge considered in R. v. Camilleri[45], a decision of the Court as presently constituted. Ormiston, J.A. considers the effect of the remark in the present case, viewed in the light of other passages in the charge. I agree with his Honour that, while the words now complained of were unfortunate and should not be used in future cases, the ground complaining of their use is not made out.

235. In paragraphs [115]-[131] of his judgment Ormiston, J.A. goes on to discuss at length what a jury should or may be told about the standard of proof in considering the matter of consciousness of guilt. His Honour refers to the case of R. v. Laz[46], among other authorities. In the case of Camilleri some difference of opinion emerged between the Chief Justice and myself on the one hand and Ormiston, J.A. on the other with regard to this question. I refer generally to what the Chief Justice and I said in that case on the matter of the standard of proof as regards consciousness of guilt and I refer in particular to what we said at paragraphs [30] and [31] and to our observation that dicta in Laz do not and could not impinge upon the rule as to the standard of proof laid down by the High Court in Edwards v. R.[47]. I adhere to the views there expressed.

238. Consciousness of guilt used not to cause much trouble in criminal trials. In recent years it has bedevilled them, quite unnecessarily in my view. I think it undesirable, with respect, that trial judges should be left in doubt about how to direct juries on the subject, and it is only to state the obvious to say that Edwards must be regarded as authoritatively laying down the law with regard to consciousness of guilt and as recognising the distinction drawn as regards the

standard of proof between cases where the supposed lie is no more than part of a body of evidence and other cases.

242. I should take the precaution of saying that there are some propositions of law in paragraphs [115]-[131] of the judgment of Ormiston, J.A. which I would most respectfully question and in addition that his Honour's approach to the matter of consciousness of guilt differs significantly from my own. Rightly or wrongly, I continue to hope that a return to the days of comparative simplicity is not yet beyond our reach. I take the liberty of referring to what I have earlier said about the undesirability of developing a jurisprudence of lies and consciousness of guilt which obscures a very old, very simple, very sound and very important notion.[48]

250. This application arises out of the convictions in the Trial Division of this Court of the applicant, Lance Edward Franklin, on one count each of murder, unlawful imprisonment and intentionally causing serious injury. The applicant may be described as a small-time criminal with mafia-like delusions of grandeur who, as the jury must have found, set out with family and friends to entrap two brothers, Joel and Wade Russell, so as to inflict on them a vicious beating, all because he believed that the victims and others had "run through" his house and stolen small quantities of cannabis, clothing, money and, in particular, two or three gold chains of the applicant. Without even being certain that the two boys were in part responsible, the applicant had determined to teach them a lesson and demonstrate to others how they could not trifle with his small criminal empire, such as it was. In the end the vicious and sadistic beating meted out to the two boys had consequences that even he did not perhaps fully contemplate at the outset, in that the beating of Joel, aged 14, was so severe and the injuries so grave that he died from them or, if he did not

then die of the injuries, he was unceremoniously tied up and dumped in the Yarra River where he drowned. That led to the charge of murder in count 1 of the presentment.

254. In addition, the applicant and his friends caused severe injuries to the 17 year old brother, Wade Russell, whom, for some unexplained reason, he let go and returned to his mother's house in a gesture of seeming bravado, perhaps expecting that his display of naked aggression and threats would frighten both Wade and his family and friends into silence.[49] The attacks on Wade led to the charge of intentionally causing serious injury in count 3, to which in count 4 there was an alternative charge of recklessly causing serious injury. Count 2 comprised a charge of unlawful imprisonment of Wade. The applicant pleaded guilty to counts 2 and 3[50] but not guilty to count 1. Having been found guilty on the first count by the jury the applicant was sentenced to 20 years' imprisonment on the count of murder; on count 2 he was sentenced to two years' imprisonment, and on count 3 to six years' imprisonment. The sentence on count 2 was made fully concurrent with that on count 1 and four years of the sentence on count 3 was directed to be served concurrently with that on count 1. The total effective sentence was 22 years of which the learned judge directed that the applicant serve a period of 17 years before becoming eligible for parole.

257. The events which led to these charges took place on 13 and 14 January 1997. There were originally five other accused, all of whom were likewise charged with murder and four of whom were each charged with the three other offences. In due course, three of them pleaded guilty to manslaughter, false imprisonment and intentionally causing serious injury, while the fourth pleaded guilty only to intentionally causing serious injury and the fifth pleaded guilty only to being an accessory to a serious indictable offence. Consequently only the applicant went to trial on a fresh presentment charging the four offences, but to only one of which (the count of murder) he pleaded not guilty. There is little doubt or even dispute that the events charged on the presentment took place, except to the extent that the applicant denied the requisite intention for the charge of murder inasmuch as it was virtually conceded in argument that he had been guilty of manslaughter, for which he had earlier offered to plead guilty. As to the first count of murder of Joel William Russell, there is little doubt that he received a savage beating at the hands of the applicant and the three others who pleaded guilty to manslaughter and that, whether dead or alive at the time, he was wrapped in bed clothing and tied up and weighed down with a brick and thrown in the Yarra River at Hawthorn where he was found a few days later. Moreover, because of his plea to counts 2 and 3, there is no doubt that the deceased's brother, Wade Robert Russell, was also beaten by the applicant and four other miscreants, although not so savagely as to kill him but only so as to cause a considerable number of serious injuries, while at the same time he was tied up by the applicant and the other offenders for that purpose, so giving rise to the second count of unlawful imprisonment. The fourth count of recklessly causing serious injury was, of course, an alternative to the third count.

260. The primary issues raised on the trial by these events were whether the applicant was responsible, as opposed to one or more of his co-accused being responsible, for conduct sufficient to constitute the element of unlawful killing under the first count, and secondly, whether it could be shown that the applicant had the requisite intent to render him guilty of murder on that count. As may be imagined, the evidence relating to these events came largely from those connected with them, either as perpetrators or as friends or acquaintances of the perpetrators, or from the victims, or from friends or acquaintances of the victims. The only witness[51] able, or at least willing, to give direct evidence of consequence, was the surviving victim Wade Russell, but even he could say little of the fate of his brother after he was released and taken home and nobody could give evidence of the throwing of Joel's body into the Yarra. There was, of course, evidence of its condition when recovered some days later and there was also, although at first the applicant in a record of interview effectively denied any connection with the events, evidence of certain admissions and other statements implying complicity obtained in gaol from the applicant by an undercover agent.

263. 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.

267. It is necessary to set out in some detail the evidence which has led to this application. For this purpose it is desirable to give an outline of the known events, without necessarily being able to ascribe on each occasion responsibility for them to those present on an individual basis, summarising also some of the particular evidence on which the Crown relied in order to show that the applicant was in fact responsible. Although the conviction for seriously injuring Wade is not the subject of this application, as the applicant had already pleaded guilty, the facts relating to the attack on and "imprisonment" of Wade are here relevant in that the applicant and his co-offenders seemed to attack both brothers with little discrimination between them, though, at the end of the day, Wade's injuries were sufficiently less serious for the applicant to decide to release him and take him home.

270. The applicant, then aged about 38, lived in a suburban house in Reservoir from which he engaged in selling marijuana on a regular basis. His home had become a place where that drug could be bought but he also allowed young people to gather there who used it, including his own son, the co-accused Alan Franklin. It seems that a group of people had become aware of the business the applicant carried on there so that, on the night of 13 January 1997, this group of otherwise unidentified people carried out a "run through" or armed invasion of his home for the purpose of obtaining drugs and other valuable items. He was not present at the time but his son and his girlfriend and one Robert Carpenter were present, but only Carpenter stayed in the house and was also robbed.

273. The applicant was greatly angered by this intrusion and, having discussed it with relatives and friends, reached the conclusion on a somewhat flimsy basis that the deceased was involved, largely because the latter had attempted to buy some marijuana from his house only two or three minutes before the raid and had gone inside rather than buying it, as he usually did, at the front door. This seems to have created the suspicion in the applicant that the deceased was spying out the land, for the burglars had taken clothing money and more especially the gold chains owned by the applicant.

276. Consequently the following afternoon, on Tuesday, 14 January 1997, the applicant drove to the Russells' home in Alphington and purported to seek the assistance of both the deceased and his brother to look for a person who was said to have either stolen money from the applicant or owed him money. Although they knew the applicant but slightly, they unwittingly accepted his invitation. To continue the pretence the applicant then drove to a number of places purporting to look for the supposed "debtor". Wade Russell then suggested that he might buy some marijuana, on which pretext the applicant took them both back home, arriving at about 2.15 p.m. The following account comes largely from the evidence of Wade.

279. They found there three of the co-offenders, his son Alan, aged nearly 19, Robert Carpenter and one Paul Cassar, as well as two young women. On some pretext the applicant persuaded both Joel and Wade Russell to go to his bedroom. One of the women came with them but she soon left, at which point the applicant picked up a baseball bat and savagely struck Joel on the back of his head which caused him to crouch down with his hands on the back of his head. The applicant shouted at him: "Where's the f---- gold, the clothes, the shoes and the marijuana?

F----, what did you do with it?" Upon Joel denying that he had taken any property the applicant struck a second blow, this time causing Joel's head to bleed. It seems at this stage that the applicant had not attacked Wade, but the applicant brought him into it by saying that he was lying and that "I'm going to shiff you five or six times just for knowing something about it and not stopping him", which the witness understood as a threat to stab him.

282. The applicant continued his vulgar threatening abuse, at the same time making the two brothers get down on their hands and knees, grabbing Wade by the scruff of his neck, or at least his shirt, and making them both crawl out to the kitchen, as he proclaimed to the others that he had found the culprits. They were then forced to crawl out the back door, down some stairs and past a bungalow.

285. 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.

288. Although the applicant had delivered the first few blows, later underneath the house all the co-offenders were involved, though, in Wade's words, "then Lance was ... the ringleader".[56] He said the applicant was telling who was to hit whom and how often. The applicant then tried to cajole the brothers into telling him where the gold was by saying that, if they did, they could go, but they had to start talking "before I do something we are all going to regret". Both the brothers continued to insist they had done nothing, but the blows continued. Wade was kicked in the ribs and a couple of times in the head by two of the co-offenders. Paul Casser stomped on his head and Robert Carpenter and Paul Cassar also kicked Joel in the head. The applicant said nothing to stop the attacks continuing. At one stage one of the offenders, possibly Shane Kelly, took the long serrated knife and stabbed Joel in the lower left leg. Apart from the two baseball bats, Paul Cassar was using a window winder to strike both the brothers and Alan Franklin used a bat with a length of chain wrapped around it to hit both of them.

291. As a result of all this, it was not surprising that Joel started to bleed, obviously from the nose and probably from his mouth and the top of his head. It seems that during the afternoon both the brothers were tied up. For this purpose Wade had been taken outside the underpart of the house, but while he was on his hands and knees facing the house, the applicant had laid into him again trying to get information from him. At this stage another co-offender, Neville Honeysett, had arrived and was helping Alan Franklin to tie Joel up. In effect, Joel was hog-tied with his hands tied to his ankles and then he was taken underneath the house again and left hanging, suspended from one of the floor-bearers with his stomach just touching the ground. The beating continued while they were both tied up, with Honeysett joining in with the baseball bat to hit Joel on the shoulder blades. Robert Carpenter had likewise punched Wade on the right side of his face and kicked him in the ribs and then had gone across to Joel whom he also kicked and stomped on.

294. During this period the applicant and at least four of the co-offenders were present most of the time. At some stage, however, Joel pretended to tell the applicant where the stolen goods were, saying that it was in the roof of his Alphington home. To this the applicant said that if he was right he would let them go, but if he was not, "I will f--- kick the living f--- right out of you". As a result the applicant and Robert Carpenter went to the brothers' home and climbed into the roof cavity. At the time the applicant had left, Wade said he was not in the best of shape as he could not move his elbow and he had both sore legs and ribs. He was not as bad as his brother, however, whose shoulders were red and purple in colour, his arms were red and his legs seemed more purple than red. Joel appeared to be having trouble breathing but a sock was subsequently tied in his mouth with a shoelace by Alan Franklin who continued to hit him.

297. The search of the roof was unsuccessful, but the applicant communicated by mobile telephone with those left behind who were told to question the two brothers as to where the jewellery was. It is not clear precisely what answer was given, but Alan Franklin resumed beating the deceased with a baseball bat and the applicant continued his search in the roof. His boldness was such that he seemed quite content that both the brothers' mother and younger brother saw him in the roof. Eventually, after one last search, he came down from the roof, returned to his house and continued his interrogation and beating, especially of Joel.

300. 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.

303. A little time later, after Wade had been constantly questioned by the applicant, the latter decided that perhaps he was telling the truth and did not know anything of the robbery. He thought he did not have anything to do with it but said that he would hang on to him for a little while longer. After further beatings Joel suggested to the applicant that one Chris Hexter had had something to do with the raid. Upon receiving this information the applicant and Robert Carpenter went a second time to the Russells' home where Hexter was living. They met him but he persuaded them that he had had nothing to do with the theft of the applicant's property.

306. Although there were further but less frequent beatings while he was away, when the applicant returned he resumed his attack on Joel with the baseball bat. However, by this stage he was satisfied that Wade could not assist him any further and said that he would drop him back home with his mother. Whether this was evidence of contrition or whether he had the impertinence to think that he could do these acts with impunity, it is not necessary to conclude. What is important about Wade's evidence at this stage is that it was the last observation made of his brother Joel by a witness of any reliability. At that stage he said that the area around Joel's shoulder blades were dark red and the middle of them was black. His legs were coloured dark purple. Wade did not see his brother try to move or wriggle at all: Joel was just hanging and Wade was not sure whether his chin was just touching his chest or not. His brother's breathing was "wheezy, very stiff, like, yes, just like very hard to breathe". He was still bleeding but his T-shirt was mopping up the blood dripping off of his face, primarily from the gash on the top of his head. There was also blood on the front of his neck and running down to his chest. His head was swollen, indeed out of shape and there was a very distinct lump on one side.

309. Wade said that his brother was "definitely worse off" than he was. Wade described his own injuries as consisting of bruising to both his thighs and shins and likewise to his ribs, shoulder blades and back, where the bruises from the baseball bat had turned into white marks. He also had a lump on his head. He was then taken from underneath the house but had to stoop in order to pass his brother and to get out of the side door. The applicant then drove him, with Robert Carpenter as another passenger, back to his home at Alphington. His mother was home and burst into tears when she saw Wade, to which the applicant said, with a giggle, that "your other son is in better condition". There was little attempt at explanation except persistent expression in Joel's responsibility for the thefts. For the most part, the conversation with Mrs Russell and her daughter tended to be vulgar and abusive and included a large number of threats to each of them. Moreover, the applicant or Carpenter was handling one of the baseball bats throughout the conversation. Before they went inside Wade was told that, if he spoke to anybody, they would come and knock him off, to which he replied that he would just tell people that he had been rolled at a railway station or something like that. In due course Wade was taken to a hospital, where a doctor observed some 29 injuries to various parts of his body.

312. During the course of the afternoon and before he was returned home, the applicant had discussed taking both Wade and his brother down to a river. Wade did not know which river was being described but assumed it was the Merri Creek. The threat consisted of putting Joel in the boot and himself in the backseat with a blanket over him, taking them down to the creek and bashing them, because nobody would be able to hear them there and that, if the applicant killed Wade's little brother, "he would have to kill me as well so there was no witnesses".

315. Obviously, the witness Wade Russell could not speak of what happened to his brother from the time he was taken away from the house to be returned home. Apart from a friend Kristy, who seems to have left early in the piece and whose evidence was treated on both sides as unreliable, there was only one other direct witness to the events, Dallas Sweetman, whose evidence was also subject to much criticism. Otherwise, there was evidence only of a blood stain, the DNA analysis of which showed that it came from the deceased, in the boot of the applicant's Holden car, and the evidence arising out of the discovery of the deceased's body in the Yarra River. Joel's body, it will be remembered, was not discovered until some four days later on the evening of Friday, 17 January 1997. Evidence was given that the applicant and the car he used were still at his house at about 10 p.m. on 14 January but that by 10.30 p.m., when the first police observations were made, both the applicant and his car had gone and there was no body under the house, though the car had returned by 1.00 a.m. the following morning. It seemed from the body's decomposition that it had been in the river for some time, although no precise time was ventured by the pathologist. In the meantime, Joel had been reported missing, early on 15 January, and the applicant had in fact been arrested early on 16 January and charged with attempted murder and causing serious bodily injury.

318. The remaining witness of consequence, as I have said, was Dallas Sweetman but it must be commented that, because of her relationship with Shane Kelly, her evidence was said to have been directed to an attempt to exonerate him. Counsel for the applicant had described her as an unmitigated liar while the Crown prosecutor had put it no more highly than that, at least as to some aspects of her evidence, she should be regarded as accurate. Nevertheless, she did give some evidence, which the jury may have accepted, as to events after the departure of Wade in the applicant's blue Holden. She said that at that time she went down and asked Joel if he had told the truth, taking some water for him to drink. She said that nobody else was there on that occasion, but it must be commented that the broad thrust of her evidence, criticised by counsel for the applicant, was that she was never present when any of the blows were struck, only being present apparently during intervals in the beatings. She said Joel was now sitting upright with the ropes round his chest. He was in a "pretty bad" condition and he was breathing "funny", as she sought to explain, "just heavy and delayed".

321. The applicant and Robert Carpenter then returned. Then, according to her, she had some reason to go outside into the yard. She did not go back under the house but she looked through the wooden slats that surrounded the underpart. According to her, Alan Franklin had said that he had been down there and hit him twice but that Joel had not made a noise or anything like that. When she looked Joel was in the same position but with his head lowered and in her words, "his breathing was very delayed", with saliva coming out of his mouth. He did not answer her call. She went upstairs immediately and said to the applicant and his colleagues: "Youse better go and check him. I think you've killed him." She said that after that she had left the applicant's house.

324. The consequences of the beating that the deceased received were described by the pathologist, although he conceded that the decomposition of the body to some extent had made his task more difficult. His evidence was largely undisputed. In substance, he said that the injuries revealed were consistent with the deceased having been severely beaten and traumatised before his death. The pathologist found extensive intramuscular haemorrhages at multiple sites, including the deceased's chest, legs and arms. He had found a number of fractures, including fractures to the left clavicle, collarbone, five ribs and two lumbar vertebrae. Other injuries included a ruptured right kidney, mesenteric haemorrhage, scalp lacerations and a stab injury to the right lower leg. Most injuries were consistent with repeated episodes of blunt trauma, while the leg injury had been caused by a sharp implement.

327. As to the precise cause of death the pathologist was of the opinion that it was likely that Joel had died from positional or traumatic asphyxia due to his being so incapacitated as to be unable to protect his airway so as to breathe freely. There was a possibility, however, that he was still alive when he was wrapped, bound and weighted down before being thrown in the river, where he may have met his death by drowning. The possibility of his being alive at the time he was tied up and thrown in the river could not be denied because the normal tests, which might finally establish asphyxia, could not be carried out when the body was as decomposed as here was the case. Nevertheless, he put asphyxia as the most likely cause and drowning as the next possible mechanism of death, with the final possibility that the various injuries and loss of blood may have led to a loss of blood pressure and failure of his heart. Therefore, as appeared from questioning from the learned judge, none of the injuries were of themselves essentially fatal injuries, at least in isolation.

330. As to the other witnesses, it may be said that a number of them confirmed incidental matters relating to the activities of the applicant over the day and evening in question. If Ms Sweetman was believed, she would have confirmed the broad timetable of the applicant's movements especially in his own house that afternoon but, as I have said, she stubbornly refused to concede that she had observed any of the beatings, only the consequences thereof. For the rest, there were many witnesses who confirmed that the applicant was furious about the run through, that he blamed the two brothers, and indirectly the whole of their family, and that that was clearly the reason for his animosity against them. Likewise, the four visits to the Russell household were confirmed by other members of the Russell family, by Chris Hexter and by other observers.

333. The other important evidence against the applicant was that which arose out of certain conversations, one formal and the other very informal which the applicant had after he was arrested.

336. Before the body was discovered a record of interview had already been carried out by the Homicide Squad. In the course of that interview, contrary to his later pleas at the trial to the counts involving Wade, he had denied any involvement in all the offences then under investigation which, so far as Joel was concerned, was then only a charge of attempted murder. The applicant had stated that he was not at his Reservoir home at the time and that he had not seen either Joel or Wade Russell or their mother for about five days before the interview. Indeed, he had not been to the Russells' home "for ages ... for months". He denied knowing Robert Carpenter and said that he had not seen Shane Kelly or Paul Cassar for some days. He said that on the day of the offences he was at his sister's house and either down at the shop or "walking around, doing something, or just looking". In the light of those answers, it is not surprising that the Crown sought to characterise them as lies, for indeed by the trial that had been effectively conceded for some time, and as evidence of consciousness of guilt of the count on which he was on trial.

339. 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.

342. As I have said, at the trial only one count remained for determination by the jury, as the applicant had pleaded both to intentionally causing serious injury and to unlawfully imprisoning Wade. In fact, the issue was solely whether the applicant was guilty of murder for it was clear from the conduct of his case and in particular the address of his then counsel that he conceded that he was guilty of manslaughter. In the last stages of that address, for example, his counsel had invited the jury to return a guilty verdict on manslaughter. Indeed, he had said that his client's actions were atrocious, they were very unlawful and "quite clearly very dangerous", but they contributed to the deceased's death inasmuch as causation is "exactly the same for manslaughter". However, because the applicant lacked the necessary intent, counsel said he was "unfortunately" guilty only of the crime of manslaughter.

345. As to the other matters raised at the trial, the form of the charge and the evidence specifically relating to the particular grounds, it is preferable to leave those matters to the stage at which they are discussed later in these reasons and in those of Brooking, J.A.

348. I shall deal with the arguments in the order in which they were presented to the Court.

352. The third ground of the amended notice reads:

"The learned judge erred: (a) in his directions concerning lies and consciousness of guilt; (b) in directing that `[once] you reach the conclusion ... that a man has lied because of consciousness of guilt of a specific crime, you realise that you have just said, "he is guilty" ...'"

As noted earlier, although not expressed in identical terms, the effective meaning of the latter observation is the same as a passage from the charge considered in the recently decided case of Camilleri where the Court treated the earlier expression as unfortunately stated but not so as to vitiate the trial.[57] In each case the learned judge also directed the jury that they must be satisfied beyond reasonable doubt that the particular lies or other acts evinced a consciousness of guilt; but, although the latter may be said to favour the applicant, the principal vice relied upon is that such a statement erects a finding on one item of evidence into a finding as to the ultimate issue of guilt. As stated in Camilleri, such reasoning cannot be accepted, but in each case one must look carefully at how the comment came to be made and what in practical terms was likely to be its effect on the jury.

357. In the first place it should be realised that the particular passage about which complaint is made was "surrounded" by two warning passages. So the complete passage[58], which concluded the learned judge's primary directions on the subject, was expressed in these terms:

"I have told you of the great care that you must take in the consideration of this question. Once you reach the conclusion, ladies and gentlemen, that a man has lied because of consciousness of guilt of a specific crime, you realise, that you have just said, `He is guilty', and you would have to be satisfied beyond reasonable doubt of all of these matters before you could make that statement."

The "matters" to which the judge referred were essentially the relevant three of the four tests laid down by Lord Lane, C.J. in R. v. Lucas (Ruth)[59], which were adopted, with some variations, by the judges forming the majority of the High Court in Edwards v. The Queen[60].

362. Before examining the particular objection further it is desirable, partly also because there is a more general if unspecific objection to the learned judge's directions as to consciousness of guilt, to examine the structure of his Honour's charge relating to lies and consciousness of guilt and what he said to the jury on those subjects. One may begin by noting that the judge gave directions to the jury about the onus of proof and the drawing of inferences both of which may be described as conventional. Thus, in describing the need to establish each element or ingredient of the offence charged, he said the Crown "must prove the existence of the facts upon which the establishment of each such element depends" and that if they considered a fact "is of significance in the establishment of an element or ingredient of the charge, then the Crown must establish the presence of that fact beyond reasonable doubt." Then, a short time later, his Honour dealt with the drawing of inferences, again in what might be described as conventional terms. He said that the drawing of inferences in a criminal trial "can have very serious consequences", so that he directed the jury that -

"When ... you are considering drawing an inference in a criminal trial about a matter which the Crown must establish beyond reasonable doubt then you must keep clearly in mind that you are not entitled to draw any such inference unless you are satisfied that it is the only proper inference in the circumstances."

366. Some time later, the learned judge proceeded to give a number of directions relating to lies and consciousness of guilt. He began by observing to the jury that they should appreciate "that situations can arise in which the very words and conduct of an individual can constitute the most powerful incriminatory evidence." After referring back to what he had said about the drawing of inferences in criminal trials, he noted that prosecution counsel had argued that the applicant had lied throughout the entire interview when he was first questioned about the circumstances and that the only reasonable explanation for that behaviour was a recognition by him that he was guilty of the crime charged.

369. The learned judge therefore commenced his specific directions relating to consciousness of guilt by noting that there could be situations "where the words or conduct of an accused person can speak unequivocally of the guilt of the individual and the person's recognition of the existence and character of the crime committed". Whether or not a statement or conduct does display consciousness of guilt was a matter for the jury to consider, but he said to them that -

"If you are satisfied that the only reasonable explanation for acting in this way is that the accused man was conscious of his guilt in endeavouring to avoid responsibility for what he has done, then his own actions and words constitute very powerful evidence against him."

However his Honour advised the jury that great care must be taken in drawing such conclusions, as false and misleading statements are made in many situations and for a variety of motives. He warned them that such actions may be designed to mislead or divert the police, sometimes the accused "may simply be frightened about possible involvement in situations and events for which they have no responsibility" and sometimes they act because they perceive that they bear "moral responsibility ... for situations which got out of control". His Honour then came to what may be described as the Lucas tests, which he put to the jury in these terms:

"Before you would be entitled to rely upon evidence of such conduct or statements as indicating consciousness of guilt of the crime charged, you would need to be satisfied, one, that the accused man said or did what was attributed to him. About that matter there seems to be no dispute whatever in [this] trial, as the relevant portions were either recorded or on video-tape or on audio-tape. Two, you would need to be satisfied that the subject matter of any untruth related to [a] question of real importance in the context of the case, and again there would appear to be no dispute as to the existence of that aspect, and third, that the accused was aware that his statements were false and/or his conduct misleading. You would need to be satisfied that he acted in this fashion in order to attempt to avoid responsibility for the commission of the offence in question, and as I have indicated, you would need to be satisfied of each of these matters beyond reasonable doubt."

After summarising a number of arguments put by the prosecution and defence counsel, his Honour specifically dealt with the possibility that the jury might see that there was a consciousness of guilt at least of the crime of manslaughter. So he said that the jury would then have been satisfied beyond reasonable doubt that the applicant was "conscious of his criminal involvement in the death of Joel Russell". Then he said they would have to deal with the matter "a little more specifically", in these terms:

"You would, before you could use that evidence, as consciousness of the guilt of the commission of the crime of murder, you would need to be satisfied beyond reasonable doubt that that was what it related to, and you had excluded all other reasonable possibilities ... It is not just involvement in the unlawful death of the young boy, but the commission of the crime of murder ...".

377. It was at this point that his Honour concluded his primary directions on the subject by the observations about which complaint is made, including the preceding and succeeding sentences, which I have already set out[61], emphasising the need for "great care" and the final requirement, according to his Honour, that they had to be "satisfied beyond reasonable doubt of all of these matters".

380. The learned judge returned to consciousness of guilt considerably later in his charge for two purposes. One was to summarise the contentions of opposing counsel and it is not necessary to elaborate those. As to the second, in the course of outlining defence counsel's contention why individuals might say things which were not true, though appearing to implicate them, his Honour dealt with an aspect which he had not already referred to but which he thought desirable to include at that stage by way of further direction. In describing the other kinds of inferences which, as counsel had contended, might fairly be drawn, his Honour said the jury should also "keep in mind another kind of mechanism which can apply to a gaol house conversation". So they had to be conscious that it was possible that the applicant was trying to give an impression "of toughness, of criminality and so forth which may well be designed to protect [him] in that kind of environment, to create some kind of aura about [him], or simply conceal the real fears that [he had] being in that situation". So he continued that the jury should have regard to the context situation and the nature of the participants in the conversation in the cell so as to be "very careful ... with respect to the drawing of adverse inferences ...". As to this he reiterated his earlier general direction in these terms:

"You do not draw an adverse inference against an accused person unless it is the only reasonable inference open in the circumstances. You have to exclude the possibility of any explanation consistent with innocence before you would be entitled to find that that represented a statement of his consciousness of guilt or, placing it in conjunction with the other interview, infer out of that juxtaposition this consciousness of guilt."

384. In substance that was what the learned judge said about lies and consciousness of guilt to the jury. What he did not do, however, was to refer to the specific lies or acts of consciousness of guilt which were relied upon by prosecuting counsel for this purpose, other than in the most general and brief terms. Counsel had in fact put to the jury a comprehensive catalogue of alleged lies, over 30 in number, almost all deriving from what was said or not said in the original record of interview. Their inaccuracy was said to arise from his admissions shortly thereafter to the undercover policeman, from his concessions in his second record of interview, from his pleas to the other counts (and indirectly his admission as to manslaughter) and finally from the evidence of Wade and of those who saw him both at home and at the Russells' house at the relevant times, in each case about matters which were originally denied.

387. Nevertheless, although in the first part of the relevant ground there is a general complaint about the learned judge's directions on consciousness of guilt, no argument has been advanced on this application that there was a failure by the judge to comply with the requirements laid down by the majority in Edwards[62] where it was said that lies "should be precisely identified, as should the circumstances and events that are said to indicate that [they] constitute an admission against interest." It is not surprising that no such argument has been relied upon, as no objection was taken at the trial in circumstances where an omission of that kind might be thought to have been more than apparent to defence counsel. Moreover, the untruth of what the applicant said as to so many of these matters was so blatantly obvious and the basis for that conclusion so clear that there were, in the special circumstances of this case, no good reasons for merely elaborating and explaining that aspect of the evidence of consciousness of guilt, for the other more contentious aspects in this case were fairly and properly examined by the judge in his directions on the subject. They likewise have provoked no argument as to error, save only for that directed to the passage earlier set out.

390. I should add, however, that there was some issue raised in counsel's argument as to whether the lies could be said to have provided evidence of consciousness of guilt as to murder as such or only as to guilt of one or other of the offences with which he was charged, in other words that the evidence was equivocal. The complaint, if so it might be characterised, did not condescend to any detailed critical analysis of the judge's direction on the matter; rather it was sought to demonstrate that a conclusion as to consciousness of guilt of murder might have been the harder to infer in these circumstances. There was brief reference to cases such as R. v. Hartwick[63] and R. v. Rice[64].

393. I cannot accept that there is any substance in these objections. Although counsel had barely touched on such distinctions in his address, the judge had clearly pointed out the relevant difference. Moreover, no complaint was made that it was not open to the jury to draw the required inference. There would, in any event, have been little doubt that the applicant was here well aware of his role in the killing and fearful that the truth as to his role would emerge. Although when he was first interviewed he made no admissions as to his role in the tying up and beating of Wade, his own previous actions must have made him realise that his part in those offences would come out. What, however, he was really afraid of, so the jury may have inferred, was that his connection with the murder of Joel would be revealed if he admitted any connection with the events at his house on the day in question. No objection was taken to the leaving of the lies to the jury. Therefore, there was no real argument (nor was it suggested in the course of the trial) that his acts could in law only be related to his fear of being shown to be guilty on one of the lesser charges. The lies must have been seen by the jury as having been provoked by his realisation and fear that his guilty intent as to the killing of Joel might implicate him in a charge of murder.

396. To return to the principal point argued, I can see no basis for saying that the impugned passage set out above[65] resulted in any miscarriage of justice. Although the words are not precisely those used in Camilleri, the impact is the same and the criticisms there made apply to the passage in this charge. Indeed, it may be thought somewhat more misleading as it came at the end of the judge's otherwise impeccable directions on the subject, thus giving the impression that he was here summarising what had gone before. He was in fact doing so, but in terms which were intended to protect the applicant from any unfairly or carelessly drawn inference. So he emphasised the "great care" required and the need to be satisfied beyond reasonable doubt, matters which he had already made clear in his preceding directions.

399. 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.

402. It is perhaps strictly unnecessary to examine the other alleged defect in the impugned passage, since the objection came only from the Crown on this appeal. Again, the learned judge used a test for "consciousness of guilt" requiring proof beyond reasonable doubt. The problem is not all that different from that raised in Camilleri but, as might be expected, the factual basis for the claim is quite different. The lies were blatant and undisputed. Equally, there was little doubt that the applicant carried out sufficient of the acts which made up the actus reus for the concession to be made on his behalf that he was guilty of the manslaughter of Joel Russell. So there remained essentially only the question of the applicant's intention. Not unnaturally the prosecution placed heavy reliance on the applicant's many lies in his first record of interview to show that he had the necessary intent for the jury to find him guilty of murder.

405. It may be said that proof of intent is almost always made out by a circumstantial case, for, short of an explicit and undisputed admission, there will ordinarily be no direct evidence of this essential element of every indictable offence, and it will usually be sought to be proved by one or more items of evidence from which the jury will be invited to infer the required intent. In terms of the test of circumstantial evidence laid down in Shepherd v. The Queen[70] such facts will, more often than not, be "strands in a cable rather than links in a chain", but, as was pointed out by Callaway, J.A. in R. v. Kotzmann[71], although ordinarily none of the facts relied on need be proved beyond reasonable doubt, there are certain categories of facts which, so it seems, still call for proof beyond reasonable doubt. For present purposes, it is sufficient to observe that proof of a confession or other explicit admission ought ordinarily to be proved to the criminal standard: cf., e.g., Burns v. The Queen[72] and McKinney v. The Queen[73]. That is not to say that a circumstantial case may not be made up in part by a number of less explicit implicatory statements, whether or not characterised as "admissions", which, viewed as a whole, are sufficient to establish any required element. Here the undisputed lies of the applicant were a striking piece of evidence called in aid by the Crown, although it cannot be said that, for the purpose of inferring intent, it stood on its own. Nevertheless, having regard to the applicant's stated position, it is conceivable that the jury saw the other evidence as equivocal and may well have placed primary reliance on the lies told in the first record of interview.

408. The problem may be thought to derive from the following passage from the majority judgment in Edwards[74]:

"Although guilt must ultimately be proved beyond all reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted (see Shepherd v. The Queen [1990] HCA 56; 170 C.L.R. 573). If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty. But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt."

According to that passage it is only where the lie is the sole item of evidence or is an indisputable link in a chain of circumstantial evidence necessary to prove guilt that the lie and its character as an admission must be proved beyond reasonable doubt. One assumes that that is meant to apply to each required element of the offence, but the difficulty is that the test assumes that it is possible to characterise these matters in advance. As was pointed out in R. v. Laz[75], it is not possible to know whether the jury will consider the evidence in the same light as prosecuting counsel or the judge. Logically, if the jury see the lie as the only evidence against the accused, then they should not act upon it unless it is proved beyond reasonable doubt. But, as was suggested in Laz, to put two alternative burdens of proof to the jury is asking a great deal of members of the community unused to applying such concepts.

413. Here it was said that, according to the tests accepted in Edwards and in Zoneff, proof of the lies and their effect as admissions did not have to be proved to that strict standard and so they could have been proved "without applying any particular standard of proof".[76] That, however, assumes that the jury would have seen the lies here relied upon as merely part of a circumstantial case going to intent and not as critical to it. Again I am inclined to think[77] that the learned judge in the present case was merely trying to adapt what had been said in Laz so as to allow for the possibility that the jury might act on the lies alone as establishing the applicant's intention to murder the victim. Again, it is not here necessary to determine the correctness of Laz[78], but the problem remains where a lie or any other act ordinarily characterised as one of consciousness of guilt may be seen to be so striking that a jury might choose to act upon it rather than upon the combination of it and other rather less certain matters relied upon to found a circumstantial case.

416. 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.

419. These concerns flow largely from a perceived risk that the jury will find itself impelled on insufficient materials to reach a conclusion which is conventionally described as one of "consciousness of guilt".[81] I believe it was to obviate the clear risks of such a conclusion that the learned judge expressed himself as he did, in an attempt to ensure that the jury would only place the tag of "guilt" on the applicant on the strictest possible basis. For that he could not here be criticised by the applicant.

422. Of course, Edwards and Zoneff were concerned with the use of lies only in cases where the imposition of any high burden of proof would have made little sense. In corroboration cases such as Edwards, the critical evidence is that of the accomplice or the complainant (in certain classes of case), so that the "consciousness of guilt" evidence provides only confirmatory support to other direct evidence. The test could be no higher, for the High Court had unanimously said only three years earlier in Doney v. The Queen[82] that it "is not necessary that corroborative evidence, standing alone, should establish any proposition beyond reasonable doubt". Likewise in Zoneff there was no attempt to rely on the lies explicitly as consciousness of guilt, so that the issue there was how a judge should prevent an attack on credibility from appearing to be a case in which characterisation of the accused's story as lies might, wrongly, be used as proof positive of guilt. Neither case had to deal with the ordinary case where lies or other incriminatory behaviour are relied on generally as part of proof of the prosecution case, either as part of a genuinely circumstantial case or, perhaps additionally, as independently proved evidence of an implied admission, such as would in itself establish an element of the Crown case. It is only the very last of these examples which has been presently held to require proof of "consciousness of guilt" beyond reasonable doubt.

425. 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.

428. The vice is not in leading evidence of conduct occurring after the offence: it is in calling it evidence of "guilt", howsoever it may be expressed. It would be no use giving a warning unless the vice is properly exposed and that vice is in too easily drawing a conclusion as to the accused's guilt from acts such as flight and the telling of lies, all customarily described as acts evidencing "consciousness of guilt". Nor is it of any use to bury one's head in the sands by treating as "mere strands in a cable" of a circumstantial case evidence which cries out, even to lay jurors, that the accused feared apprehension or exposure as the offender. Likewise, it is no use describing lies as merely reflecting on the accused's credibility when the essence of the prosecution attack is that they positively make out its case against the accused. That is precisely what happened in Nguyen where both prosecutor and judge forswore characterising the prosecutor's attacks on the accused's case as reliance on consciousness of guilt, so leading wrongly to the absence of any proper warning. The burial of a gun used to shoot a victim, jumping through the glass window of a burgled house as the owners return, falsely claiming the victim's blood upon a handkerchief to be one's own[88], as well as the blatantly lying account in the present case, do not merely cry out for an explanation but may lead many a jury to believe that such damning acts could only be those of a guilty person.

431. The question in each case is where to draw the line between the kind of acts described in the last paragraph and those fibs and other suspicious acts which frequently form part of the circumstantial case which neither counsel nor judge place under the umbrella of "consciousness of guilt" evidence. Of course, the tag cannot determine the question, but ordinarily to say that an accused is not to be believed because of the telling of lies does not imply any more fundamental an attack on the defence case, certainly where the lies have been told in court or in a record of interview which is otherwise accepted as largely accurate. After all, as Lucas, Edwards and Zoneff insist, the lies must be capable of being treated as deliberate and told for a proscribed purpose if they are to require a warning, let alone be used to infer guilt. But the precise language used, as is the intention of the prosecutor, is not conclusive, for the question is objective[89], and must depend on whether the jury could fairly understand that the lie or other implicatory conduct "is relied upon to prove guilt"[90], i.e. not merely to assist in making out a case for conviction but to show in itself that the accused was implicated in the commission of the offence.[91] Thus the verbal formula "consciousness of guilt" may not be used if, for example, prosecuting counsel, directly or by implication, argues along the lines: "How could the accused be innocent, if you accept that he told this pack of lies/jumped out of the window of the burgled house etc.?" Occasionally, as in Nguyen, the nature of the prosecution attack on the accused's case will make it apparent that the accused's behaviour is being used in itself to support a conviction, without any item of evidence being described as proving "consciousness of guilt".

434. Whether the evidence is so relied upon explicitly or implicitly there must be a warning. Why that is legally required has two aspects. Earlier judgments dealing with the question tended to concentrate on the admissibility of such evidence and the reasons why and in what circumstances such evidence was relevant to the issue, although it has been accepted for many years that, subject to certain precautions, it is.[92] The later cases such as Edwards and Zoneff have concentrated on those aspects of the admission of such evidence as require the judge to ensure that the accused receives a fair trial according to law.[93] What the judge is presently required to tell the jury is not merely a warning as to how and in what circumstances they should use evidence of lies or other implicatory conduct: that is certainly necessary in that, as suggested in R. v. Miletic[94] and in R. v. M.C.G.[95], it is not fair, in cases where the danger of too easily accepting certain classes of evidence will not be apparent to a jury, to leave the matter to counsel to bring out any manifestly obvious deficiencies in evidence of that kind. The stamp of judicial authority is required on the required warnings, inasmuch as a judge ordinarily may fairly be thought to have far greater experience of witnesses and accused persons seemingly lying, but for reasons not properly attributable to realisation of guilt and for one or more of the other reasons which are set out or adumbrated in the first paragraph on p.211 of Edwards, such as panic, protection of family or friend, fear of unjust accusation or the desire merely to avoid being charged with some lesser offence.[96]

437. Nevertheless the present requirements also go beyond the giving of a warning, for the full requirements laid down in Edwards and Zoneff are in effect a statement of the preconditions to the relevance of consciousness of guilt evidence to a particular issue, namely whether the accused's alleged acts, whether lies or other implicatory conduct, amount to an implied admission against interest of the most serious kind, that of guilt of the charged offence. That is why the jury "should be instructed that there may be reasons for the telling of lies [etc.] apart from the realisation of guilt".[97] Moreover, it is also why, upon being appropriately warned of the alternative hypotheses, the jury "should be told that, if they accepted a reason of that kind is the explanation for the lie, they cannot regard it as an admission"[98].

440. It follows that in consciousness of guilt cases one is not speaking merely of lies or other acts which throw doubt on the accused's account of the events and circumstances relating to the alleged offence but of those lies and acts which might be used as a true "admission" based upon a "realisation of guilt". Further the reason for the lie or other acts is that the truth, in terms of the Edwards' test, as varied in Zoneff[99], "would implicate him in the commission of the offence" (emphasis added).

443. It is not difficult, having regard to the presently accepted tests, to see why such evidence has been described as that of conduct evidencing "consciousness of guilt", for that is what it is all about, that is why such strict conditions are placed on the jury's right to use it and why such stringent warnings are required, albeit sometimes it is put forward only as evidence of corroboration or as part only of a circumstantial case.

446. Consequently, there is good reason for saying that, unless the evidence is sought to be used only as a "strand in a cable" of a circumstantial case, it is preferable, as seems likely here, to assume that the jury, if directed in accordance with Edwards and Zoneff, might treat evidence of blatant lies, such as the present, as an independent and thus an indispensable link in the chain of evidence relied on to establish guilt, and so to require the jury to be satisfied beyond reasonable doubt that the applicant had made an implied admission as to the his guilt upon which they could find him guilty.

449. In my view, whether it be thought by others to be desirable or undesirable, the significance at a criminal trial of conduct evidencing consciousness of guilt is the natural consequence of the stringency of the tests laid down and expanded in Lucas, Edwards and Zoneff. One cannot ask a jury to follow through tests of such detail[100]

, if not complexity, without investing evidence of this kind with an importance which must raise in the jury's minds the question, "Is this evidence sufficient to amount to an admission, though indirect, by the accused that he or she was guilty of the crime charged?" The language required to be used is redolent of the serious consequences flowing from its acceptance and, even if "guilt" is not used at every turn, more often than not the jury is asked whether the alleged acts "implicate [the accused] in the commission of the offence".[101] The use of the latter expression would seem to suggest that, if the expression "consciousness of guilt" is thought to assume that the evidence in question proves the issue of guilt or innocence against the accused, perhaps the expressions "implicating evidence" or "evidence tending to implicate the accused in participation in the offence"[102] might be adopted, rather than the somewhat imprecise expression "post-offence conduct".

454. Nevertheless, as things stand, it is difficult to use conduct of this kind either as evidencing consciousness of guilt or as tending to implicate the accused in the commission of an offence merely as part of a circumstantial case without also requiring the judge to give the elaborate directions accepted in Lucas, Edwards and Zoneff. Some may think the simplicity of the proposed warning outlined by Lord Devlin in Broadhurst[103] to have been preferable, but the acceptance, and further elaboration, of the Lucas test by the High Court in Edwards and Zoneff has made that impossible (at least to my way of thinking), unless prosecuting counsel, in presenting a circumstantial case relying on lies or the like, abandons, both directly and by implication, any reliance on the evidence as an implied admission of guilt. In short, according to those tests, either the jury is satisfied that the accused has impliedly admitted his guilt in the offence or at least has admitted some essential and disputed element of the offence, or it is not so satisfied. At present, whether or not "beyond reasonable doubt" is used by the trial judge, the effect of the restrictions imposed by the presently accepted tests on the jury is virtually the same. In the present case, although, according to the tests in Edwards and Zoneff, the judge may not have been strictly correct to impose such a high test, in this case, as I would suspect in many others, to do otherwise would have been potentially dangerous having regard to the significance of the lies here told. Indeed, if the jury were instructed that they had to be satisfied only on the balance of probabilities that the lies were told out of a consciousness of guilt or the like, they might critically have asked the judge why he had been going through "all this rigmarole" to warn them about evidence of limited significance.

457. No other matter having been raised on behalf of the applicant, the ground should be rejected.

461. The fourth added ground of the application was expressed in these broad terms: "The learned trial judge erred in his directions concerning complicity." The essence of counsel's complaint was that his Honour directed the jury neither on the basis of the applicant's and the others' acting in concert while present at his house on the night in question, nor on the basis of his counselling or procuring, or for that matter aiding and abetting, the other offenders in their attack on Joel Russell: rather the judge put the case to the jury upon the basis that the assaults on the boy were either carried out by the applicant or by the others at his behest and under his control, with the intent on his part either to kill or cause really serious injury to the victim. There were other aspects to counsel's argument and, in particular, he said that in any event it had not been possible to charge the jury on the basis of acting in concert or of aiding and abetting, because the applicant was absent during some of the attacks and therefore, as he contended, the Crown were unable to establish that the attacks were carried out while he was present at the scene.

464. This ground and these complaints are dealt with in great detail by Brooking, J.A. in his judgment which I have had the considerable advantage of reading in draft form. It has concerned me that the learned and experienced trial judge should have directed the jury on this basis, but, in the end, having considered for myself the many matters raised in Brooking, J.A.'s judgment, I am also of opinion that the directions on this issue given to the jury at this trial cannot be supported. In particular, I agree with what he has to say about "non-innocent" agency and how, in particular, other than in cases of innocent or "non-responsible"[104] agency and possibly in cases of vicarious liability, an accused cannot be held responsible for what is done by his or her so-called agent, unless it also satisfies one of the tests for complicity or liability as an accessory.

467. 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].

470. The difficulty in the present case may have been seen to be the applicant's significant participation in the carrying out of the assaults on Joel and yet his absence from the scene for a number of not inconsiderable periods. So it was contended that he could not have been prosecuted and convicted on the basis that he was acting in concert with the other offenders inasmuch as he was not present at the scene, a requirement seemingly insisted on by all the authorities with the possible exception of the judgment of Gaudron and Gummow, JJ. in Osland.[120] That contention would appear to ignore the existence of authority suggesting that continuous presence is not essential: see R. v. Standley[121], Bingley's Case[122], R. v. Kirkwood[123], R. v. Dade[124], R. v. Jordan[125], R. v. Sheppard[126] and R. v. Kelly[127].

473. What I have said so far might tend to suggest that I would agree with the conclusion that Brooking, J.A. has reached, namely that, notwithstanding there were fundamental errors in the charge to the jury in this case, the conviction could be justified on the basis that the applicant was primarily liable, not merely by looking at the vicious assaults he inflicted on the deceased, but also by an application of the principles laid down by the High Court in Royall v. The Queen[128], in particular by concluding that what the applicant had done could be treated as a sufficiently "significant" or "substantial" contribution to his death to justify the verdict of murder. I have, however, had the gravest of difficulties in satisfying myself that such conclusions necessarily follow from the jury's verdict in this case, having regard to the form of the judge's charge. By this I am not suggesting that, if properly directed, the jury might not well have reached that conclusion on the evidence before them. A significant factor tending to support that conclusion is in fact the way in which counsel conducted the case on the part of the applicant, for which I should be loathe to criticise him, for he had an exceptionally difficult tactical issue to resolve having regard to his client's conduct, not merely at the time, but after the death and by reason of the inferences which could be drawn from his pleas on the other counts and his proffered plea in this case. The essence of counsel's approach may be seen from the quotation set out in paragraph [58] of the judgment of Brooking, J.A., wherein the jury were virtually invited to bring in a verdict of manslaughter,[129] rather than to convict on the count of murder.

476. That approach seems to suggest that the applicant conceded that he was responsible in part, for the death of Joel, at least to the extent that the death had been brought about by the unlawful and dangerous acts of the applicant. But the principal issue presently to be resolved is not merely whether the applicant's acts substantially contributed to the actus reus, consisting in the killing of Joel, but whether one can infer that the jury would have reached the same conclusion on the disputed element, i.e. his mens rea, namely whether he intended thereby either to kill or cause really serious bodily injury to the deceased. The difficulty with which I have struggled is whether one can properly take out of the "equation" the acts of the other offenders, which, by virtue of the judge's charge, the jury almost certainly treated as part of the totality of the physical acts in respect of which they found that the applicant had the requisite mental intention. It may be an unduly sophisticated enquiry but, at this stage of the application, one is dealing here not with what the jury found but with what hypothetically they may have found. I would have found it easier if the matter could have been looked at on the basis of there being inferentially a verdict on the basis that the applicant acted in concert with the other offenders, but the question of presence and absence from the scene was barely touched on in the judge's charge. Moreover, one perhaps ought not to ignore what the High Court said in Meyers v. The Queen[130], albeit that was not a case of complicity:

"The particular act and the intent with which it is done must be proved by the prosecution beyond reasonable doubt. Act and intent must coincide.[131] If the circumstances of a fatal altercation are such that the prosecution can prove that some acts were done with the necessary intent but cannot prove that other acts were done with that intent, no conviction for murder can be returned unless there is evidence on which the jury can reasonably find that the act which caused the death was one of those done with the necessary intent."

In short, in the present case and on the relevant hypothesis, we can look only at whether the jury should have been satisfied that the accused did the acts which he personally perpetrated with the requisite intent, and we must ignore, for present purposes, what his intent may have been when sooling on or encouraging the others in their attack on the deceased while acting under his so-called "control". In other words, it might be said that his own acts, though vicious, did not have had the necessary quality and accompanying intent.[132]

481. Moreover, in practical terms, it would have been easy for the jury to conclude, in the light of the manner in which the learned judge had directed them, that the applicant's intention in controlling and directing the other offenders was sufficiently proved in the circumstances having regard to the totality of what occurred on the particular night, even if the participation of the applicant had by chance lessened in the course of the evening. As time went by, notwithstanding what he had done in those early stages, he had left on three separate occasions to look for the gold chains and to visit the deceased's home. What then occurred, especially after Wade was taken home on that third visit, was by no means so clear, except that there was no reason to believe that the beatings had ceased; nor was it clear precisely how and in what circumstances the deceased was taken and thrown in the Yarra River. All this may fairly have been comprehended by the jury's finding, if they were entitled to look to what was done under his control and direction, as they were wrongly invited to do.

484. In these circumstances it might be thought difficult to reach a conclusion as to what the jury would have concluded if properly instructed, especially if that instruction had been confined to the applicant's own acts. It is here, however, that two facts may be considered which in combination are unusual and which make any enquiry into what the jury would have found much easier. The first is the concession by counsel, clearly on instructions, in his address that the applicant's acts substantially contributed to the death of Joel Russell, to the extent that the jury was specifically invited to bring in a verdict of manslaughter. The second was the fact, the admission of which was expressly consented to by his counsel, that the applicant had pleaded guilty to intentionally causing serious injury to Wade Russell. The first effectively limits the enquiry at this stage to the applicant's intent at the relevant time. The second showed that the applicant admitted that his intentions towards the older brother would have been sufficient to found a charge of murder if he also had died as a result.[133]

487. The significance of these matters is merely that it makes it easier to conclude that the applicant's intent towards Joel was, at the least, to inflict on him really serious injury, the alternative basis of the necessary intent for murder. Even if that was not his intent before he inflicted the first few blows, there can be little doubt that, by the time he had forced the two brothers under the house, both words and actions could only be viewed by the jury as directed to giving them each a vicious beating. That is what in fact occurred and it would be sheer sophistry to argue that the medical consequences of each individual blow could not be separately identified. The facts earlier described, as analysed by Brooking, J.A. in his judgment (and by the Chief Justice in his judgment), demonstrate why no jury would rationally have reached any other conclusion, even confining the relevant acts to those inflicted by the applicant, than that he had the necessary intent to support the count of murder.

490. Consequently I have formed the opinion that there can be no doubt that the jury, properly instructed, would have found the necessary elements for the count of murder. The misdirection, to which I have referred, did not result in any miscarriage of justice. The ground is therefore not made out, but in any event I would have applied the statutory proviso.

Directions relating to causation - whether verdict was unsafe

494. Grounds 5 and 7 were argued together. Ground 5 contended that "the learned trial judge erred in his directions concerning causation", although essentially the argument was directed to whether the Crown had satisfactorily proved that element. Ground 7 which alleged that the verdict was "unsafe or unsatisfactory" was specifically related to and confined to reliance upon the claimed failure to establish the applicant's responsibility for causing the death of Joel Russell.

497. In so far as ground 5 involved an attack on the judge's direction, that seemed largely confined to the way in which the judge dealt with the applicant's responsibility for the acts of the co-offenders where again the judge spoke of responsibility deriving from the applicant's control of the other offenders, an issue which substantially reiterates the complaint about the judge's directions as to complicity dealt with under ground 4. So it was that the judge said that in order to establish the applicant's responsibility for the death of the deceased, the Crown had to show that "the actions which brought about the death of the deceased were because they were either in part performed by [the accused] and otherwise under his control, or actions which can be attributable to the accused man as his actions." It was contended that the pathologist, Dr Lynch, had given evidence that no particular injury could be identified as causing death and that the injuries he had found were not necessarily fatal, but that he nevertheless put the combination of the injuries as the cause of death which most likely resulted from positional asphyxia. He had not excluded drowning as a possibility. Because a number of serious assaults had occurred in the applicant's absence it could not be said, so it was argued, that the applicant's own acts had caused the death of the deceased.

500. No such objection was taken at the trial, nor in any real sense could it have been. After the passage I have just quoted the learned judge continued by saying that -

"the evidence that we have effectively in relation to that is that provided by Dr Lynch, which I do not understand is the subject of any controversy. He expressed the view that the deceased died as a consequence of the injuries which he received and which ultimately resulted in him being either alive or dead, tied up and thrown into the river."

Within a few minutes there was a break at which no point was taken by the experienced counsel then appearing for him. The reason is easy to see. Throughout the trial it was accepted by the defence that the acts of the applicant had contributed to his death so as to make him responsible for it. Whatever might have been the position if a different approach had been taken, the applicant's case was essentially confined to denying that he had the requisite intention to support the count of murder. In doing so, counsel had tactically conceded that his client was responsible for the manslaughter of the deceased, in passages which I have referred to above. Having made the concession that he was responsible for the death of the deceased to the extent that that would have founded a verdict of manslaughter, it is impossible to see how the same concession must not have been treated as relevant for a verdict of murder. It was the same death and the same events that were relied upon, albeit that there was a vigorous case mounted to deny that he had intended to kill the deceased or cause really serious harm to him.

505. In the light of that concession the grounds cannot possibly be made out. Ground 5 is therefore to be rejected, as is the dependent ground which would assert that the verdict was unsafe or unsatisfactory.

509. The sixth ground alleged that the trial judge erred both "in his directions concerning manslaughter" and "in failing to leave manslaughter by criminal negligence".

512. As to the first complaint, it was said that the judge erred in his directions as to the form of manslaughter in fact left to the jury, namely, manslaughter by unlawful and dangerous act. Dealing with the required element of dangerousness his Honour directed the jury that "it must be an act which a reasonable person in the position of the accused would realise would expose the deceased to an appreciable risk of death or bodily injury". The relevant test, at least in this jurisdiction, since Wilson v. The Queen[134], is posited on the jury finding circumstances in which "a reasonable person would have realised that he or she was exposing another to an appreciable risk of ... serious injury".[135] Again, no objection was taken to the judge's charge on this matter although a break in the proceedings followed almost immediately during which the judge asked counsel if there were any exceptions to what he had said. Even now the only objection is the inclusion in the judge's charge of the possibility that such a verdict might be brought in based on a realisation of an appreciable risk of death, as such, thereby potentially causing, so it was said, confusion in the minds of the jurors.

515. I can see no merit in this objection. In the first place the jury did not bring a verdict of manslaughter and any alleged confusion could in reality have occurred only if they had reached a verdict on the alternative count of manslaughter. More importantly, the applicant was not disadvantaged inasmuch as the jury was given a wider choice as to the basis upon which they could bring in that lesser verdict. Where the more serious charge of murder has been the subject of the verdict, the basis for an objection to the way in which the alternative charge of manslaughter is left to the jury, so I would understand it, is that the jury may be deprived of the choice (and thereby the accused loses the benefit of the possibility) of an alternative verdict which they might (quaere, mercifully) have brought in, notwithstanding their apparent satisfaction on the tests laid down for murder, assuming they have been correctly stated.[136] Thus, on any view of the matter, the wider the bases put forward by the trial judge in his charge as to the alternative verdict, the more likely it is that a jury might choose to convict on the lesser charge. Thus, as counsel for the respondent here contended, any error in the learned judge's charge on this subject was in fact favourable to the applicant.

518. The second complaint was that the learned judge failed to leave a further alternative verdict based on criminal negligence. The factual basis for this was said to be certain incidental comments made by the prosecutor and repeated by the judge in his charge, to the effect that the applicant was shown to be callous in his attack on the deceased (and his brother) inasmuch as he took no steps to ameliorate the victim's condition after the savage beating when the deceased was apparently distressed and took no steps to obtain medical assistance for him.

521. In so far as the prosecutor referred to these matters, they were essentially part of the overall story and circumstances and they might fairly be seen as mere verbal flourishes added to an otherwise appalling chain of events. The judge had merely picked up these events in summarising the evidence. Otherwise I would view the likelihood of the jury accepting that this could be a case of manslaughter by criminal negligence as largely fanciful, if I may say so. The story was one of consistent and deliberate beatings and one could never realistically characterise the applicant's treatment of the deceased as negligent, to whatever standard that might have to be proved. There was again, rightly, no attempt by counsel at the trial to seek directions for a verdict on this alternative basis, no doubt believing that it was sufficient that one broadly based statement of a head of manslaughter had been left to the jury so that, with luck, his client might be mercifully dealt with by them and the lesser verdict brought in. Finally, it should be noted that counsel's concession in his address to the jury was on the basis that the jury should bring in a verdict of manslaughter by an unlawful and dangerous act: it is hardly likely that they would have brought in a verdict of manslaughter on any other basis had they been minded to bring in such a verdict at all.[137]

528. The last ground argued was ground 2, namely that:

"The learned trial judge erred in admitting into evidence covertly recorded conversations between the applicant and an undercover policeman `Chris Harris'."

532. It will be recalled that the conversations were adduced in support of the Crown's proof of intention and in part as proof of the applicant's telling of lies and consciousness of guilt. Before the trial commenced before the jury counsel then appearing for the applicant sought to have the conversation excluded on the ground that it had been unlawfully taken by an investigating official and should be excluded in the exercise of the judge's discretion as being unduly prejudicial to the applicant's case. After hearing argument the learned judge refused the application in a ruling which he had considered overnight. A primary basis for concluding that there had not been a deliberate disregard of the applicant's rights, by employing the stratagem of planting an undercover policeman in his cell, was that the primary motive for taking that course was a desire on the part of those responsible for the investigation to obtain information about the whereabouts of Joel and as to whether he was alive or dead. It will be remembered that, at the time the applicant was taken into custody, the ultimate fate of Joel was unknown, except that he had been very severely attacked, for his body was not discovered in the Yarra River for another couple of days. Having regard to the fact that counsel for the applicant had conceded that that was the motive, or at least a primary motive for the taping of the conversation, his Honour concluded that he did not consider that it would be proper or necessary to exercise his discretion to exclude the evidence, for he thought that the probative value of it outweighed its potential prejudicial impact, not should it be "excluded as representing a deliberate or reckless departure from appropriate standards by those conducting the investigation".

535. On this application counsel argued that the motive of the investigating police to determine Joel's whereabouts was irrelevant to the exercise of the judge's discretion. He argued that there was still a "deliberate denial of the applicant's right to silence" with the consequence that the conversation should have been excluded. For this purpose he relied on passages in the judgments in R. v. Swaffield; Pavich v. The Queen[138].

538. It was contended for the respondent that Harris was not an investigating official within the meaning of s.464(2) of the Crimes Act 1958, but it might be said that one should have regard to the conduct of all those responsible for the taping of the conversation. For the present, and having regard to my conclusions, I should prefer not to express an opinion on that matter.

541. More importantly, I would agree with the respondent's contentions that there was nothing to show that the learned judge's exercise of his discretion in favour of admitting the evidence miscarried. The reasoning in his ruling made reference to all relevant considerations, of which he was well aware, for he cited, among other cases, Swaffield. Since that time this Court has analysed further the considerations relevant to the reception of evidence from undercover policemen in R. v. Lewis[139]. As there was in that case, there was here no relevant impropriety and the statements were made voluntarily. Subject to an appropriate direction, which the judge promised to and did give, the statements were sufficiently reliable for it to be fairly concluded that their probative value far exceeded their prejudicial effect. I can see no reason in these circumstances for excluding from the considerations relevant to the exercise of a judge's discretion the motives of the investigating police which in the present case were clearly conceded to have been directed primarily to finding information as to the whereabouts of the principal victim of the attacks.

548. It follows that the application should be dismissed.

[1] [2001] V.S.C.A. 14

[2] [2000] VSCA 32 at [4].

[3] [1980] HCA 3; (1980) 143 C.L.R. 108.

[4] "[I]f I say, `Hit him for me, will you please' and he is good enough to do so then this is my act as much as it is his act. ... I have in fact controlled, directed and am indeed making myself a party to that particular act."

[5] R. v. Demirian [1989] VicRp 10; [1989] V.R. 97 at 116 per McGarvie and O'Bryan, JJ.

[6] Johns v. R. [1980] HCA 3; (1980) 143 C.L.R. 108 at 117 per Stephen, J.

[7] See, for example, 1 Hale, Pleas of the Crown, 233, 435, 615; Foster's Crown Law (1762), pp.126-7; 2 Hawkins, Pleas of the Crown, Chapter 29, s.16; 4 Blackstone, Commentaries, 36-37. See too the direction given by Lord Campbell, C.J. in R. v. Bernard [1858] EngR 554; (1858) 1 F. & F. 240 at 242; [1858] EngR 554; 175 E.R. 709.

[8] I repeat that I am in no way concerned with persons liable by virtue of concert.

[9] R. v. Saunders (1576) 2 Plowd. 473; 75 E.R. 706.

[10] Kelyng, J., 52-53; 84 E.R. 1078 (mentioning a charge to a jury given in 1633). Compare what had been said in R. v. Saunders, several decades earlier: "and if such death should not be punished in him, it would go unpunished."

[11] Foster's Crown Law (1762), p.349.

[12] As in R. v. Brisac & Scott [1803] EngR 641; [1803] 4 East 164 at 172; [1803] EngR 641; 102 E.R. 792:

"And in the present case, the delivering the vouchers, and the presenting the bill of exchange to the commissioners of the victualling-office in Middlesex, were the acts of both the defendants, done in the County of Middlesex: I say it was their acts, done by them both; for the persons who innocently delivered the vouchers were mere instruments in their hands for that purpose ...". (Grose, J., delivering the judgment of the Court of King's Bench.)

[13] For example, Glanville Williams speaks of "a mere machine whose movements are regulated by the offender" (Criminal Law, The General Part, 2nd ed., p.350) and "a cat's paw" (Textbook of Criminal Law, 2nd ed., p.330). McHugh, J. prefers "non-responsible agent" to "innocent agent" (Osland v. R. [1998] HCA 75; (1998) 197 C.L.R. 316 at 347-8), while Stephen, J. would not speak of an "agent" (White v. Ridley [1978] HCA 38; (1978) 140 C.L.R. 342 at 353-354), but I have continued to use the old and familiar expression.

[14] Examples will be found in R. v. Paterson [1976] 2 N.Z.L.R. 394; White v. Ridley [1978] HCA 38; (1978) 140 C.L.R. 342 per Gibbs, J. at 346-7 and Stephen, J. at 353-4; R. v. Demerian [1989] VicRp 10; [1989] V.R. 97 at 118 per McGarvie and O'Bryan, JJ.; and Osland v. R. [1998] HCA 75; (1998) 197 C.L.R. 316 at 326 per Gaudron and Gummow, JJ. and at 347-9 per McHugh, J. There is an extensive discussion in R. v. Hewitt [1997] 1 V.R. 301.

[15] For the history of the Imperial legislation and that in Victoria see R. v. Welsh [1998] VSCA 138; [1999] 2 V.R. 62 at 71-73.

[16] Unless present at the scene of the crime and so liable as an aider and abettor.

[17] [1818] EngR 53; [1818] Russ. & Ry. 363; 168 E.R. 846.

[18] This is one of the few places in which this expression is to be found in the books.

[19] [1802] EngR 34; (1802) Russ. & Ry. 25; 168 E.R. 664.

[20] (1844) 1 Cox C.C. 84.

[21] [1827] 1 Mood. 166; 168 E.R. 1227.

[22] [1844] 1 Cox C.C. 104.

[23] Apparently none other than the editor of Cox's Criminal Cases.

[24] This phrase should serve as a reminder that this judgment does not concern itself with those who act in concert.

[25] [1844] 1 Den. 39; [1844] EngR 765; 169 E.R. 141; [1844] 1 Car. & K. 589; 174 E.R. 950.

[27] As to this see R. v. Demerian [1989] VicRp 10; [1989] V.R. 97 at 117 per McGarvie and O'Bryan, JJ.; Gillies, Criminal Law, 3rd ed., c.5; Working Paper No. 43 of the Law Commission in England on Parties, Complicity and Liability for the Acts of Another, passim.

[28] Parlt. Papers 1846, vol. xxiv, p.19.

[29] Holdsworth, History of English Law, vol. 15, pp.143-147.

[30] R. v. Demerian [1989] VicRp 10; [1989] V.R. 97 at 109 per McGarvie and O'Bryan, JJ.

[31] R. v. Demerian [1989] VicRp 10; [1989] V.R. 97 at 134-5.

[32] "Complicity, Cause and Blame: A Study in the Interpretation of Doctrine", (1985) 73 California L.R. 323, reprinted in Blame and Punishment - Essays in the Criminal Law (1987).

[33] See esp. pp.52-57, 336-337, 363-364 and 380-381.

[34] Note esp. pp.333-336, 341-344, 368-372 and 404-407.

[36] [1998] HCA 75; (1998) 197 C.L.R. 316 at 366.

[38] Hart and Honoré, Causation in the Law, 2nd ed. (1985), pp.363, 364.

[39] The decisions include R. v. Smith [1959] 2 Q.B. 35; R. v. Cato [1976] 1 W.L.R. 110; R. v. Evans and Gardiner (No. 2) [1976] VicRp 53; [1976] V.R. 523 at 528-9; R. v. McKinnon [1980] NZCA 22; [1980] 2 N.Z.L.R. 31 at 36-37; Royall v. R. [1991] HCA 27; (1991) 172 C.L.R. 378 at 398 per Brennan, J., at 411 per Deane and Dawson, JJ. and at 423 per Toohey and Gaudron, JJ.; R. v. Bingapore [1975] 11 S.A.S.R. 469 at 480 (specifically rejecting the contention that the act must be "the most substantial cause"); Osland v. R. [1998] HCA 75; (1998) 197 C.L.R. 316 at 324-325 per Gaudron and Gummow, JJ., at 342 per McHugh, J., at 386 per Kirby, J. and at 403-404 per Callinan, J.

[40] [1991] HCA 27; (1991) 172 C.L.R. 378.

[41] R. v. Evans and Gardiner (No. 2) [1976] VicRp 53; [1976] V.R. 523 at 527; Royall v. R. [1991] HCA 27; (1991) 172 C.L.R. 378 at 411 per Deane and Dawson, JJ., at 423-424 per Toohey and Gaudron, JJ. and at 441 per McHugh, J.

[42] See, for example, two articles, the first written before and the second after Royall: Colvin, "Causation in Criminal Law", (1989) 1 Bond L.R. 253 and Arenson, "Causation in the Criminal Law: a Search for Doctrinal Consistency", (1996) 20 Crim.L.J. 189.

[43] R. v. Garforth [1954] Crim.L.R. 936 (where the injuries inflicted by the unsuccessful appellant which contributed to the death were described as minor); Smithers v. R. (1977) 75 D.L.R. (3d) 321 at 330-331 (where the Supreme Court of Canada referred to Garforth in laying it down that the Crown need only establish a contributing cause of death, outside the de minimis range); R. v. Robbins [1994] S.A.S.C. 487; R. v. Morgan [1994] VicRp 41; [1994] 1 V.R. 567 at 569-570.

[44] Perkins, Criminal Law, pp.609-612; LaFave and Scott, Criminal Law, 2nd ed., pp.280-281, 616; 40 Am.Jur. 2d, Homicide, sections 15-16. A few examples will suffice: Henderson v. State (1914) 11 Ala. App. 37; 65 So. 721 at 723; State v. Francis (1929) 152 S.C. 199; 149 S.E. 348 at 363-4; State v. Luster (1935) 178 S.C. 199; 182 S.E. 427 at 429-431; State v. Serebin (1984) 119 Wis. 2d 837; 350 N.W. 2d 65 at 70; Holsemback v. State (1983) 443 So. 2d 1371 at 1382.

[45] [2001] VSCA 14.

[46] [1998] 1 V.R. 453.

[47] [1993] HCA 63; (1993) 178 C.L.R. 193.

[48] R. v. Chan (unreported, Court of Appeal, 12 March 1998); R. v. Mazur [2000] VSCA 111; (2000) 113 A.Crim.R. 67 at 72-73; and see Camilleri at [35] in the joint judgment.

[49] This appears from a conversation with an undercover agent in which the applicant expressed the belief that nobody would give evidence against him, notwithstanding that Wade had seen most of the beating which his brother had received.

[50] The transcript shows him to have pleaded guilty also to the fourth count (an alternative count to count 3), but that plea should not have been taken, as the judge pointed out shortly thereafter.

[51] Another witness whose motives and credibility were challenged professed to have observed the condition of the victims but none of the actual beatings.

[52] It alleged that the judge was wrong in failing to order a stay of the trial, by reason of abuse of process, because of the acceptance by the Director of Public Prosecutions of the offers by the co-accused to plead guilty to lesser charges and the refusal by the Director to accept a similar offer from the applicant. Although the subject of detailed argument at the trial, it was rightly rejected in a detailed ruling by the learned judge.

[53] See below at paras.[101] and [102] .

[54] [2001] VSCA 14.

[55] Another co-offender who seems to have arrived at about this time. He was the only one of the group close to the applicant in age, the others being younger.

[56] In cross-examination Wade appeared to waver on his assertion that the applicant was directing proceedings, saying that he "wouldn't go to that extent", because they were just doing "whatever they're going to do", "whether someone is directing them or not". Of course, the jury were not obliged to accept this uncertain qualification. Moreover, in the gaol conversation the applicant specifically admitted that he "organised it".

[57] See paras.[25]-[39] per Phillips, C.J. and Brooking, J.A. and paras.[106]-[112] per Ormiston, J.A.

[58] Counsel's outline carefully and properly set this out: it was only in the added ground that it was abbreviated.

[59] (1981) 1 Q.B. 720 at 724.

[60] [1993] HCA 63; (1993) 178 C.L.R. 193 at 208-211, per Deane, Dawson and Gaudron, J.J.

[63] (Court of Appeal, 20 December 1995, unreported).

[64] [1996] 2 V.R. 406. It may be thought that a similar argument might have arisen in Camilleri, but neither at trial or on application for leave to appeal was any such proposition there put forward, rightly, because the acts of the accused must have been primarily directed to the accused's fear that he would be held responsible for the two gruesome murders.

[65] The ground is set out in para.[101] and the more complete quotation appears in para.[102].

[66] [1993] HCA 63; (1993) 178 C.L.R. 193.

[67] [2001] VSCA 1, at para.[33] per Phillips, C.J. and Brooking, J.A. and at para.[107] per Ormiston, J.A.

[68] Camilleri at [107]: see the further discussion in that paragraph.

[70] [1990] HCA 56; (1990) 170 C.L.R. 573, esp. at 579 per Dawson, J.

[71] [1999] VSCA 27; [1999] 2 V.R. 123 at 128-131.

[72] [1975] HCA 21; (1973) 132 C.L.R. 258.

[73] [1991] HCA 6; (1991) 171 C.L.R. 468.

[74] 170 C.L.R. at 210, a passage which seems to have been accepted as correct by all members of the High Court in Zoneff v. The Queen (2000) 200 C.L.R. 234.

[75] (1998) 1 V.R. 453 at 468-469 per Ormiston and Charles, JJ.A. and Vincent, A.J.A.

[77] As I did in Camilleri at para.[108].

[80] 200 C.L.R. at 244 paras.[17] and [18], and 245 paras.[22] (referring back to 243 para.[13]) and [25].

[81] See Zoneff 200 C.L.R. at 244 para.[15].

[82] [1990] HCA 51; (1990) 171 C.L.R. 207, at 211 per Deane, Dawson, Toohey, Gaudron and McHugh, JJ.

[83] R. v. White [1998] 2 S.C.R. 72 at 85; 125 CCC (3d) 385 at 393, per Major, J.

[84] Zoneff 200 C.L.R. at 259-260 para.[63] per Kirby, J.

[85] R. v. Nguyen [2001] VSCA at [20] per Winneke, P.

[86] For reasons appearing below I would suggest "implicatory evidence" or "evidence tending to implicate the accused in participation in the offence".

[87] See the discussion and examples in Cross on Evidence (loose-leaf Aust. ed.) paras.1115, 1170, 1190, 1230, 1540 and 37105 and J. Stone (revised W.A.N. Wells): Evidence: Its History and Policies (1991) pp.148-150.

[88] Cf. Zoneff 200 C.L.R. at 258 para.[60] per Kirby, J.

[89] Zoneff 200 C.L.R. at 263 para.[71] per Kirby, J.

[91] Edwards at 211, as qualified in Zoneff at 244 para.[16].

[92] See the analysis of this question and the authorities in Edwards 178 C.L.R. at 208-210.

[93] Cf. Zoneff 200 C.L.R. at 256 para.[55].

[94] [1997] 1 V.R. 593 esp. at 605-606.

[95] [2001] VSCA 17 at para.[49].

[96] See also Broadhurst v. The Queen [1964] A.C. 441 at 457, though the latter part of this well-known passage might be seen to be inconsistent with Edwards and Zoneff.

[98] Edwards ibid, emphases added in each passage.

[100] In the present case, if the judge had in fact identified each of the 30 or so lies relied upon and the basis upon which each might amount to an admission (Edwards at 210-211: see para.[[]), the judge's charge would have been even longer.

[102] However, as the majority in Edwards said at 209, immediately after using the word "implicate", "to say that the lie must spring from a realisation or consciousness of guilt is really another way of saying the same thing". Same coffee, different cap!

[104] See Osland at 347-8 paras.[85]-[86] and fn.140.

[109] At p.141. To be fair, the author admits of the possibility of "joint principals" at p.142 (para.(b)) but in terms suggesting limited application: cf. at p.122.

[110] [1998] HCA 75; (1998) 197 C.L.R. 316.

[111] At 341-351 paras.[69]-[95], concurred in by Kirby, J. at 383 para.[74] and by Callinan, J. at 413 para.[257].

[114] See especially his recent article "Primary and Derivative Criminal Liability: An Australian Perspective" in [2000] Crim.L.R. 707, esp. at 714. He also wrote the chapter on Complicity in Laws of Australia.

[115] See Chapter 8 on Complicity, esp. at pp.405, 411.

[116] Which is not inconsistent with earlier English authority.

[117] (1838) 2 Lewin CC 225; 168 E.R. 1136.

[119] At 324 and 401, paras.[15] and [214].

[120] See at 328, 329-330, paras.[24] and [27].

[121] [1816] EngR 159; (1816) Russ. & Ry. 305; 168 E.R. 816.

[122] [1821] EngR 48; (1821) Russ. & Ry. 446; 168 E.R. 890.

[123] (1831) 1 Mood. 304; 168 E.R. 1281.

[124] (1831) 1 Mood. 307; 168 E.R. 1283; see also 1 Lewin 145; 168 E.R. 992.

[125] [1836] EngR 466; (1836) 7 Car. & P. 432 at 434; [1836] EngR 466; 173 E.R. 192 at 193.

[126] [1839] EngR 237; (1839) 9 Car. & P. 121; 173 E.R. 767.

[127] [1847] EngR 45; (1847) 2 Car. & K. 379; 175 E.R. 157.

[128] [1991] HCA 27; (1991) 172 C.L.R. 378.

[129] See also the passages set out in the judgment of the Chief Justice at para.[14].

[130] [1997] HCA 43; (1997) 71 A.L.J.R. 1488, esp. at 1489.

[131] Reference was made to Ryan v. The Queen [1967] HCA 2; (1967) 121 C.L.R. 205 at 217-218 and Royall at 393, 401, 414, 421 and 453.

[132] I would emphasise that the issues raised in this sentence would only be relevant if one was limited to a consideration of the applicant's own acts, their causative effect and the applicant's intention in carrying out those acts.

[133] The word "really" in the test of intent to cause "really serious injury" is merely the conventional conversion into lay language of "grievous bodily harm" for the benefit of the jury.

[134] [1992] HCA 31; (1992) 174 C.L.R. 313.

[135] The test is taken from the headnote in Wilson, which adapts the sentence at the foot of 174 C.L.R. at 332 extending to the top of 333 and modifying it in the terms appearing in the first paragraph at 333 (per Mason, C.J., Toohey, Gaudron and McHugh, JJ.).

[136] See generally Gilbert v. The Queen [2000] HCA 15; 74 A.L.J.R. 676 and the authorities discussed therein. The majority seem unwilling to trust the jury to apply correctly the judge's directions.

[137] The facts here are quite different from those in Pemble v. The Queen [1971] HCA 20; (1971) 124 C.L.R. 107.

[138] (1998) 192 C.L.R. 191 esp. at 198-204 paras.[80]-[103].

[139] [2000] VSCA 140; (2000) 1 V.R. 290, esp. at 310-315 paras. [49]-[59].