R v Galas; R v Mikhael [2007] VSCA 304

[2007] VSCA 304

Criminal Law - Conviction - Murder - Statutory Murder - Conviction of common law murder set aside - Conviction of co-accused of manslaughter set aside - Retrial of first applicant of statutory murder and second applicant of manslaughter ordered - Crimes Act 1958 (Vic) s 3A.

1 I have had the advantage of reading the draft reasons for judgment of Kellam JA and consider that, for the reasons given by his Honour, the conviction of the first applicant for murder and of the second applicant for manslaughter should be quashed and new trials ordered. I also agree that the appellants should be re-sentenced as proposed by Kellam JA.

2 I agree in the disposition of these matters proposed by Kellam JA and I do so for the reasons advanced by him in his judgment.

3 On 16 May 2005 a jury found the first applicant, Craig Galas, guilty of one count of murder, one count of aggravated burglary and one count of armed robbery. He seeks leave to appeal his conviction of murder. His co-accused, the second applicant Steven Mikhael, was found guilty of one count of manslaughter, one count of aggravated burglary and one count of attempted armed robbery. He seeks leave to appeal his conviction of manslaughter.

4 In the early hours of the morning of 2 September 2003, the two applicants together with two other persons, forced entry through the front door of a house in Tullamarine. At the time of entry the first applicant was armed with a loaded .38 calibre revolver. The second applicant was armed with a retractable baton. Another of the offenders was armed with a length of timber which was either a real baseball bat or else resembled one. The fourth offender was in possession of a backpack containing scissors and plastic bags. All of them wore black balaclavas.

5 It is apparent that at the time of entry to the house, both applicants were in

possession of information that cannabis plants were being grown upon the premises, and that their intention at the time of entry was to steal the cannabis from the occupants of the house. The house was occupied by David Walker and Robert D'Amico. At the time of entry into the house by the applicants, Mr Walker was asleep in a bedroom. Mr D'Amico was in the lounge room. Mr Walker was awoken by the sound of the intruders coming through the front door. His bedroom door was opened and the light switched on. He observed two men wearing balaclavas standing at the door. One man had a retractable baton which was flicked out in front of him. That man was the second applicant. The other man had a small black handgun which was pointed at Mr Walker. That man was the first applicant. The second applicant told Mr Walker to roll over on his bed. He commenced to tape Mr Walker's wrists together behind his back with duct tape. The second applicant said 'Where's the cash and where's the stuff?'. Mr Walker pointed to the walk-in wardrobe in his bedroom. By this time the first applicant had left the room. Mr Walker told the second applicant that he was an epileptic and that he was about to have a fit. The second applicant then loosened the tape which had been placed around Mr Walker's wrists. As the second applicant loosened the tape Mr Walker heard a shot and then observed the second applicant running out of the bedroom and shouting as he did so 'What happened? What have you done?' Mr Walker stayed on his bed and observed three men running down the hallway past his bedroom towards the front door. The man with the handgun pointed it at him as he ran past the bedroom. Mr Walker then got off his bed and went to the door. There he saw Mr D'Amico lying on his stomach up against the front door. He could not find a phone to ring police or an ambulance. So he left the premises and subsequently attended at Keilor Downs Police Station and reported the incident. Soon thereafter police attended the premises. Mr D'Amico was found dead on the floor near the front door of the premises. There was black tape around one of his wrists. Subsequent examination of the scene revealed that a bullet was lodged in the floorboards of the lounge room of the house. It was later identified as having been discharged from a .38 revolver. In addition, a length of duct tape was found on the lounge room floor and a black and purple backpack containing scissors and garbage bags was found at the premises.

6 The first applicant was interviewed by police on 12 November 2003. He admitted having entered the premises. He said:

We were told that there was a crop there and we went there to run through their stock. We went in. There was one guy in the room and one guy in the lounge room. I went into the lounge room and just covering the guy in the lounge room to tie him up and I had the - the gun in my hand and while I was tying him off, it went off and hit him.

He admitted having taken the loaded .38 calibre revolver into the premises and he said that he had done so for the purpose of intimidation. The second applicant was interviewed by police on 19 November 2003 and admitted having entered the premises with the intention of stealing the drugs. He admitted to having tied Mr Walker's hands behind his back and to having worn a balaclava. He said that the first time he had seen the handgun in the possession of the first applicant was when he was inside the front door of the premises.

7 The evidence was that the deceased died as a result of a single gunshot that entered his back, passed through his body and lodged in the floor of the house. The prosecution case against the first applicant was that he had shot and killed the deceased with an intention to kill or to cause really serious injury (common law murder) or in circumstances attracting the operation of s 3A of the Crimes Act 1958 (Vic) (statutory murder). The prosecution case against the second applicant in relation to the count of murder depended first upon whether the charge of murder could be made out against the first applicant, and secondly on whether the applicant was complicit in that offence. The prosecution relied upon extended common purpose to inculpate the second applicant in murder at common law, and upon his acting in concert to inculpate him in statutory murder. In the case of both applicants, manslaughter was relied upon as an alternative to the count of murder. This was on the basis of unlawful and dangerous act on the part of the first applicant and on the basis of extended common purpose against the second applicant.

The first applicant's grounds of appeal against conviction

8 The first applicant relies upon eight grounds of appeal. All grounds relate to the conviction on the count of murder. No challenge is made to the conviction of the first applicant on the counts of aggravated burglary and attempted armed robbery.

Ground 1: The conviction on the count of murder is unsafe and unsatisfactory.

9 It is contended by the first applicant that no reasonable jury, properly instructed, could have been satisfied beyond reasonable doubt that the applicant was guilty of murder at common law, given that it was not open to them to exclude the possibility that the handgun discharged 'accidentally' or without an intention to kill or to cause really serious injury.

10 It is submitted that there was a considerable body of evidence before the jury supporting the conclusion that the handgun had discharged 'accidentally'. In his police interview the first applicant told police that the handgun had discharged while he was trying to tie up the deceased. The handgun has never been recovered by police. The first applicant told police that he had disposed of the gun in the Maribyrnong River. A firearm expert, Senior Constable Stephens gave evidence in the course of the trial. He said that he could not comment on the specific attributes of the firearm without having the actual firearm available for examination. He said that he had examined the crime scene and that he was present when the post mortem autopsy had been conducted upon the deceased. He observed the entry wound which was approximately 45 mm left of the deceased's spine. There was an area of blackening around the entrance to the wound which indicated that the muzzle was close to the deceased's back at the time of discharge. He said the blackening that he had observed was such that the firearm was within 10 mm of the deceased's skin at the time of the discharge.

11 He said that the track of the bullet was approximately 45 degrees upwards, assuming that the deceased was in an upright position. He said that he could not say what position the deceased was in when he was shot but he conceded it was possible that the deceased was lying flat on the floor. He agreed that he could not exclude the possibility that the firearm had discharged by accident.

12 The evidence before the jury was that there was only one shot. There was no evidence that the applicant had had any previous contact with or any hostility towards the deceased. Mr Walker heard no threats preceding the shots. It was argued that there was no explicable reason to attempt to tie the deceased's hands behind him if the intention was to shoot him. It was submitted that the objective circumstances pointed to the truth of the first applicant's account of what had occurred when he was interviewed by police. That account was that he had had the handgun in his hand as he was tying the hands of the deceased with tape and 'it went off'. It was argued that the conduct of the first applicant in departing from the premises, and taking nothing, is not consistent with the intentional firing of the handgun, but is consistent with panic as a result of the unintended and unexpected event which had taken place. In such circumstances it is submitted that the hypothesis that the handgun discharged without any intention to kill or cause really serious injury could not have been reasonably excluded by the jury.

13 For the jury to have found the first applicant guilty of common law murder it was necessary for them to have been satisfied beyond reasonable doubt that the discharge of the firearm was a conscious, voluntary and deliberate act on the first applicant's part. There was, of course, no doubt that the discharge of the firearm caused the death of the deceased. Furthermore, in all the circumstances before them, if the jury were satisfied that the discharge of the firearm was a voluntary and deliberate act, they would have had little difficulty in inferring that the first applicant intended to kill or to cause really serious injury to the deceased. Accordingly, the question to be determined is whether it was open to the jury to be satisfied beyond reasonable doubt that the discharge of the firearm was a voluntary and deliberate act.

14 Counsel for the respondent submits that the mere fact that the firearm had been discharged in circumstances of aggression was sufficient to show that the discharge of the firearm was a voluntary and intentional act. He is unable to point to any other evidence which would have enabled a jury to draw that inference.

15 However, there was evidence before the jury from which they would have been entitled to conclude that an alternative inference was open, and which on the evidence could not be excluded logically. Neither applicant knew the deceased. Mr Walker heard no threat or indeed any statement at all made by the first applicant prior to the fatal shot being fired. The deceased was found by the forensic pathologist who performed the autopsy to have black adhesive duct tape wound around his left wrist. The tape was wound around his wrist 'two or three times' and at the time of the autopsy it was found to be still attached to the roll which was hanging down 'about one foot' from his wrist. The forensic pathologist, Dr Dodd, agreed that his findings were consistent with a factual scenario whereby the deceased was lying on the floor with his hands behind his back, with one wrist bound by tape. He agreed that his findings were consistent with the handgun having been discharged as the first applicant pulled on the tape in order to bind the second wrist of the deceased. The evidence was that the shot was fired when the muzzle was within 10 mm of the back of the deceased. The evidence of Mr Walker was that immediately after the shot was fired, all three intruders left the premises almost immediately. Nothing was taken from the premises.

16 In these circumstances, I do not consider that the jury could have been satisfied beyond reasonable doubt that the discharge of the firearm was in consequence of a voluntary and deliberate act on the part of the first applicant. It was not possible to exclude the possibility that the discharge of the firearm was an unintentional consequence of the first applicant holding the firearm in one hand as he endeavoured to tape together the two hands of the deceased. The evidence before the jury was not such that it was possible to exclude the possibility that as the first applicant was engaged in this activity he placed pressure unintentionally on the trigger of the firearm causing it to discharge. In such circumstances, I conclude that it was not open to the jury to convict the first applicant of common law murder. Since one or more of the members of the jury may have convicted on the basis of common law murder, the conviction of the first applicant cannot stand.

17 Likewise it follows that the conviction of the second applicant of manslaughter must be set aside. The case against the second applicant was in complicity, being extended common purpose to inculpate him in murder at common law and upon his acting in concert to inculpate him in statutory murder. In circumstances where the conviction of common law murder of the first applicant was not open, and notwithstanding the acquittal of the second applicant on the charge of murder, it is not possible to define logically the basis upon which the jury convicted the second applicant of the crime of manslaughter. That conviction cannot stand.

18 It follows that each application for leave to appeal should be granted and in each case the appeal should be allowed.[1]

Should the convictions be quashed and verdicts of acquittal entered or should retrial be directed?

19 The question now arises as to whether or not the convictions should be quashed and verdicts of acquittal entered or whether retrial should be directed in each case, and if so, upon what charge. Counsel for the first applicant submits that a verdict of acquittal should be entered on the count of murder, as it was not open to the jury to convict the first applicant of statutory murder pursuant to s 3A of the Crimes Act 1958 (Vic).

20 Section 3A of the Crimes Act 1958 (Vic) provides as follows:

3A Unintentional killing in the course or furtherance of a crime of violence

(1) A person who unintentionally causes the death of another person by an act of violence done in the course or furtherance of a crime the necessary elements of which include violence for which a person upon first conviction may, under or by virtue of any enactment, be sentenced to level 1 imprisonment (life) or to imprisonment for a term of 10 years or more shall be liable to be convicted of murder as though he had killed that person intentionally. (Emphasis added)

(2) The rule of law known as the felony-murder rule (whereby a person who unintentionally causes the death of another by an act of violence done in the course or furtherance of a felony of violence is liable to be convicted of murder as though he had killed that person intentionally) is hereby abrogated.

21 In the course of the trial, the 'act of violence' relied upon by the prosecution and left to the jury for the purposes of statutory murder was 'the presenting of a loaded firearm to Mr D'Amico and while tying him up and subduing him the firearm discharges'. Statutory murder was left to the jury on the basis that the intentional act of violence causing death occurred in the course or furtherance of either an attempted armed robbery or an armed robbery.

22 In the course of her address to the jury the prosecutor had submitted that both armed robbery and attempted armed robbery were crimes of violence within the meaning of s 3A. She said:

The fourth element of statutory murder is that the unintentional death occurred in the furtherance of a crime, the necessary elements of which includes violence. ... I am not going to go to those elements, his Honour is going to of armed robbery, attempted armed robbery, but I submit it is very clear, armed robbery would fit into a category of offence, the elements of which include violence. The armed robbery was still ongoing at the time he was being tied by Mr Galas. And the reason he was being tied up, you might think, a matter for you, was to enable a search of the house to look for cannabis or cash or both, if you like. Now this type of murder, the prosecution says in this trial, is proven beyond reasonable doubt by Mr Galas's own admissions in the record of interview as to that armed robbery, attempted armed robbery as nothing was taken, was still on foot.

23 Later, and in the course of the judge's charge, counsel for the first applicant submitted to the trial judge that the submission made by the prosecutor was a conflation of the two offences of attempted armed robbery and armed robbery. He argued that attempted armed robbery is not a crime the necessary elements of which include violence. In response the prosecutor submitted to the contrary, and referred to a trial ruling of Murphy J in R v Morel[2] in which his Honour had ruled that attempted armed robbery was such a crime. It would appear that no ruling was made on the matter by the trial judge. However, in the course of his charge the trial judge told the jury that the crime of statutory murder did not require an intention on the part of the accused to cause death. He said 'the crime is committed if death is caused unintentionally by an act of violence of a person done in the course of a serious crime of violence such as armed robbery'.

Later in his charge, his Honour gave directions to the jury whereby he stated:

... you need not trouble yourself with whether an armed robbery or an attempted armed robbery is a crime referred to in the last couple of lines in s 3A. I tell you as a matter of law that each of the crimes of armed robbery and attempted armed robbery is a crime one of the necessary elements of which includes violence. Each is a crime which, upon a first offence, a person may be sentenced to imprisonment for a term of ten years or more.

Later in the course of summarising the address of the prosecutor the trial judge said:

Turning to statutory murder, Ms Pullen noted that the prosecution did not have to establish the intention to cause death or really serious injury. There had to be an act of violence causing death. That act of violence had to be in the furtherance of a crime of violence. That crime of violence was the attempted armed robbery.

Later his Honour repeated the submission made by the prosecutor to the jury that 'When the act of violence occurred the armed robbery was still on foot'.

24 As can be seen from the preceding paragraph, reference was made to both attempted armed robbery and to armed robbery by both the prosecutor and the trial judge. However, it is conceded before us by the respondent that at trial the prosecution put its case on the basis that the act of violence was committed in the course of an attempted armed robbery.

25 However, counsel for the first applicant submits that statutory murder should not have been left to the jury on either basis. He argues that neither the crime of armed robbery nor the crime of attempted armed robbery is a crime, the necessary elements of which include violence for the purposes of s 3A. It is argued that whilst the crime of armed robbery may well involve the use of violence, the offence may be committed without violence. This submission, as is conceded by counsel for the first applicant, is a submission which faces considerable difficulty because the Full Court of this Court in R v Butcher[3] held that armed robbery is a crime the necessary elements of which include violence for the purposes of s 3A.[4]

26 It is submitted by counsel for the first applicant that R v Butcher is decided wrongly in that regard. As is conceded by counsel for the first applicant however, it is not for this Court to so determine. The trial judge was bound by the decision of R v Butcher, as are we.

27 Counsel for the first applicant argues that even if R v Butcher is authority for the proposition that armed robbery is a crime of violence for the purposes of s 3A of the Act, the question of whether or not attempted armed robbery is such a crime was not considered in that case. Counsel for the first applicant submits that attempted armed robbery may be committed without any violence at all and thus it is not a crime, the necessary elements of which include violence for the purposes of s 3A. By way of example, counsel for the first applicant argues that if a person with a weapon concealed on his person, hands a note on which he mistakenly believes is written a demand for money and contains a threat of menace with the weapon, but in fact the note contains no such demand or threat, he has nevertheless attempted an armed robbery. In this example, as postulated by counsel, if the perplexed would-be victim hands back the blank note and the would be robber walks away in silent embarrassment, there is an attempted armed robbery, but there is no violence.

28 This submission assumes that in the circumstances of this case the crime which is appropriately under consideration for the purposes of s 3A is the crime of attempted armed robbery. However, there is no reason to make such an assumption. The fact that the only crime which was complete at the time of the death of the deceased was that of attempted armed robbery does not make that crime the relevant crime for the purposes of s 3A. The elements which must be proven in order to establish statutory murder are;

• an act of violence,
• which act was conscious, voluntary and deliberate,
• done in the course of or furtherance of a crime - the necessary elements of which include violence - which carries a penalty of life imprisonment or a maximum penalty of not less than ten years' imprisonment.

29 The background to the introduction of s 3A of the Act was examined by the Court in R v Butcher in the following terms:[5]

For some time prior to 1981 numerous criticisms of what was loosely called the felony murder rule had been made. The Law Reform Commissioner, Mr T W Smith QC in his first report to the Victorian Government of August 1974 on the law of murder stated that the felony murder rule offended against "basic concepts of justice" and he instanced in his Report the apparent width of its application and recommended that it be abolished: Report No 1 Law of Murder, August 1974 pp 10-15.

Upon the second reading of the Crimes (Classification of Offences) Bill in the House by the Minister, s.3 was amended by omitting the words "crime of violence" appearing in the original Bill and substituting in their stead the present words "crime the necessary elements of which include violence": Hansard Vol 358_,_ 6 May 1981, p 8688.

We gather from reading Hansard that the intent of the amendment was to make it abundantly clear that the crimes in the commission of which the felony murder rule as defined in s.3(2) was to continue in force in the State of Victoria were to be of a class having "violence as one of its ingredients" (see Hansard, supra) and that the rule was not to apply simply because the particular crime committed was in fact one which was committed violently.

30 Accordingly the prosecution must prove that the death was caused by 'an act of violence done in the course or furtherance of a crime' of the stated class, which carries the penalties stipulated.

31 The meaning of the phrase 'act of violence' was likewise considered in detail in R v Butcher. The Court said:[6]

In our opinion, the word "violence" where it is used in s.3A is not to be understood to refer only to physical force but rather to include those aspects of intimidation and seeking to intimidate by the exhibition of physical force or menaces as in the past have been considered to constitute violence.

When the words "act of violence" and "crime the necessary elements of which include violence" are used in s.3A, violence is used in a descriptive sense. "Act of violence" means an act of a violent kind, for there is no legal definition of violence as such inside or outside which any particular act or threats may be said to fall. Nor is there any common law crime in which violence is by definition an element.

This view is also consistent with violence as understood during the development of the English language. As a matter of etymology, violence is a word having its origin in the Latin violentia, often connoting vehemence or impetuosity. It is not synonymous with the use of physical force, although physical force falls within its meaning. It is a word of wider significance in the law, as the cases show. Smith and Hall in their English-Latin Dictionary give as their first meaning of violence: "inherent overpowering force, whether physical or mental." In the Oxford English Dictionary violence is defined as follows: "(Law) unlawful exercise of physical force, intimidation by the exhibition of this".

However, it seems to us that if the word violence in the phrase "act of violence" is understood to be used in its etymological sense and in the descriptive way that it has been used in the cases, and to embrace actual force used to overcome or nullify resistance and as well, threats or menaces to induce fear and terror or to intimidate in order to remove or nullify resistance, the phrase is apt to express the type of act which is required to call into play the felony murder rule under s.3A.

... violence must be interpreted to include threats such as in common experience would be expected or likely to take away resistance, which has always been considered to be an element, necessary to prove, in the crime of robbery.

Without attempting to deal exhaustively with what other acts may or may not be considered to be acts of violence, we are satisfied from our reading of the cases that holding out a knife towards another person whilst he is three to four feet away and at the same time demanding money from him, is capable of being found to be an act of violence within the meaning of s.3A(1).

Likewise, I am satisfied that the act of holding a loaded handgun in one hand and at the same time attempting to restrain a person by tying his hands behind his back is capable of being found to be an act of violence within the meaning of s 3A(1) of the Act. The question then arises as to whether the act of violence is capable of being found to be an act of violence 'done in the course or furtherance of a crime the necessary elements of which include violence'.

33 The word 'course' is described in the Oxford English Dictionary as: 'The continuous process (of time), succession (of events); progress through successive stages' and 'a line of conduct, a person's method of proceeding'. The word 'furtherance' is defined as being: 'The fact of being helped forward; the action of helping forward; advancement, aid, assistance'.

34 It appears to me to be clear that the relevant crime, the necessary elements of which include violence, need not be complete at the time of the act of violence which causes death. Accordingly any act of violence which is undertaken in the course of or the furtherance of the crime of armed robbery is capable of being found to be an act of violence within the meaning of s 3A(1). It is not to the point that each of the applicants was charged with attempted armed robbery and not armed robbery. In my view it would be open to a jury to be satisfied beyond reasonable doubt that an act of violence which caused the death of the deceased was done 'in the course of or furtherance' of the crime of armed robbery.

35 However, as stated above, it is conceded by the respondent that the trial of both accused was conducted by the prosecution on the basis that the crime was the crime of attempted armed robbery. It is now submitted by the respondent that a 'more satisfactory analysis ... is that the subsisting crime of violence for the purposes of the s 3A charge was in fact that of armed robbery'. That is clearly so. The question then arises as to whether or not a retrial should be permitted in circumstances whereby the retrial would involve the prosecution putting its case against each accused on the basis that the relevant crime of violence for the purpose of s 3A of the Act was the crime of armed robbery, rather than the crime of attempted armed robbery.

36 The first applicant submits that the respondent should not be allowed 'to mend its hand on murder' and that the Court should direct his acquittal. Three reasons are given for this.

37 First, the respondent has not identified the victim of the armed robbery. Furthermore, it is unclear as to whether the prosecution puts the case against the first applicant as principal or otherwise, nor has it identified the act of violence causing death. It is submitted that these questions were not addressed properly by the prosecution at trial nor is the applicant better informed now about the Crown position in relation to these matters.

38 Secondly, even if the respondent has identified a basis for its case on murder sufficiently, there are 'fundamental flaws' in the prosecution case. It is argued that if the prosecution contends, as it did in the trial, that the intended victim of the armed robbery was Mr Walker, it would not be open to convict the applicant. It is argued that in this case the applicant had left Mr Walker in his room and was attempting to tape the wrists of the deceased when the gun discharged, and thus it cannot be said on retrial that any act of violence occurred in the course of an armed robbery of Mr Walker.

39 In my view there is nothing in either of these two arguments. The prosecution case at all times has been that the death of the deceased arose in the course of a joint enterprise to conduct an armed robbery upon Mr Walker. The act of violence committed by the first applicant was the taping of the wrists of the deceased behind his back whilst holding a loaded handgun. That act was in furtherance of the armed robbery of Mr Walker. Whilst engaged in that act of violence the handgun discharged. Notwithstanding the fact that the first applicant had left Mr Walker in the charge of the second applicant at the time of the shooting of the deceased the subduing of the deceased was a step in the conduct of the joint enterprise of armed robbery.

40 The third argument raised by the first applicant as to why he should not be retried on the charge of murder is that the retrial would involve such a 'dramatic and/or unfair change' in the nature of the case, so as to preclude the prosecution from reliance on it. It is submitted that the circumstances of this case are quite different from those of R v Taufahema.[8]

41 A number of arguments are submitted in support of the contention that it would be unfair to permit a retrial to take place.

42 First, it was the prosecution who at trial put the case to the jury on the basis of an attempted armed robbery of Mr Walker, unlike R v Taufahema where the judge was said to be the cause of the flawed case being put to the jury. That is so.

43 Secondly, at trial, the prosecution resisted the objection made by counsel for the first applicant, that the crime of attempted armed robbery should not be left as a basis for murder under s 3A(1) of the Act. It is submitted that this factor makes this case fundamentally different from that of R v Taufahema.

44 Thirdly, unlike in R v Taufahema where there was no dispute that the victim was murdered, the question of whether the deceased was murdered in this case was very much at issue. In this regard the first applicant submits that 'as this Court has already accepted, it was not open to exclude [the] possibility that the gun discharged accidentally'.

45 Fourthly, it is argued that unlike in R v Taufahema, the issue of whether it is open to convict of murder in this case is in dispute. It is submitted that it is not open to convict the first applicant under s 3A(1) of the Act.

46 Fifthly, it is submitted that any public interest in the due prosecution and conviction of offenders is outweighed by the interest of the accused in not being tried a second time on a different basis, when it was the prosecution's approach to the trial which has caused the retrial.

47 Sixthly, a retrial on manslaughter would be sufficient to deal with the criminality of the first applicant 'given that it is not open to say that the firearm was discharged deliberately'.

48 Seventhly, it is argued that the prosecution case on a retrial would have to change substantially from the previous trial in a number of ways. Common law murder would be abandoned. Armed robbery would be substituted for attempted armed robbery as the relevant crime for the purposes of s 3A(1) of the Act. It is also contended that the intended victim of the armed robbery would need to be changed.

49 Furthermore, it is argued that given 'the Court's finding that it was not open to exclude the possibility that the gun discharged accidentally, at a retrial the Crown could not rely upon the deliberate discharge of the firearm as part of a composite act of violence causing death for the purposes of s 3A(1).'

50 Finally, it is submitted that 'the only circumstances in which the defence of accidental discharge of the firearm would avail the prosecution would be' if the prosecution were allowed to 'mend its hand' by excluding from the act of violence which caused the death 'the discharge of the firearm' and if the prosecution could persuade a jury of all the elements of s 3A(1) of the Act, including that the act relied upon 'is indeed one of violence that caused death, despite the fact that the obvious immediate cause of death was the accidental discharge of the firearm'.

51 It is appropriate to deal forthwith with the arguments raised by counsel for the first applicant relating to a so-called defence of accident. The respondent submits that it is appropriate for the Court to make some observations about how a defence of accident applies to offences under s 3A of the Act. In particular the respondent submits that the defence of accident cannot apply to the circumstances of this case. In response to this submission counsel for the first applicant submits that such a submission fails to recognise 'the conclusion already reached by this Court on the accidental discharge of the firearm'.

52 The submission made by counsel for the first applicant in that regard is based on a misunderstanding of the view expressed by the Court on the appeal that it was not reasonably open to convict the first applicant of common law murder. The Court did not conclude that the defence of accident could not be excluded by the jury. In the course of argument upon the appeal it was made clear that the concern of the Court was that in relation to the charge of common law murder; there was no evidence upon which a jury could draw the inference that the firearm was consciously and voluntarily discharged and thus be satisfied that there was an intentional discharge of the firearm. That is not to say that the Court concluded that the jury were unable to reject the defence of accident. Indeed, the Court was at pains to make that clear. In the course of argument Vincent JA said to counsel for the respondent:

I have deliberately put all of that to one side, avoided the use of the word "accident" ... I am simply saying ... on what material could the Crown rely to say that a jury would be entitled to reach that conclusion (ie of voluntary discharge of the firearm) beyond reasonable doubt ... all we are talking about now is that very limited notion of whether there was a deliberate act, a conscious act.

53 The fact that the prosecution could not prove that the discharge of the firearm was intentional for the purposes of common law murder does not mean that the prosecution is unable to successfully prosecute a charge of murder under s 3A of the Crimes Act. In my view and as I have said, it would be open to a jury to conclude that the holding of a loaded handgun in one hand whilst attempting to restrain a person by tying his hands behind his back is an act of violence. Furthermore, in my view it would be open to the jury to find that it was that act of violence which unintentionally caused the death of the deceased when the firearm discharged in such circumstances. By definition the offence under s 3A is concerned with the unintentional killing of a person. The fact that it is not open to conclude beyond reasonable doubt that the firearm was intentionally discharged does not mean that it is not open to convict the first applicant of murder under s 3A(1) of the Act.

54 However, counsel for the first applicant submits that in the trial the respondent maintained that the composite act of violence was 'the presenting of a loaded firearm' to the deceased 'and while tying him up and subduing him the firearm discharges'. It is argued that each aspect of the composite act of violence had to be intentional, conscious, voluntary and deliberate. Thus, it is argued, that it follows that since each aspect of the composite act of violence must be shown to be deliberate, it is not open to rely on the deliberate discharge of the firearm as part of a composite act of violence causing death for the purposes of s 3A(1). As I have stated above, it appears to me that the act of violence which may be relied upon is the act of holding a loaded handgun in one hand and at the same time attempting to restrain a person by tying his hands behind his back. Quite clearly it would be open to a jury to find that such acts were conscious and deliberate on the part of the first applicant. However, as the first applicant submits, the description of that act of violence is a different act from that which was relied upon by the prosecution in the trial of the first applicant. It is submitted that it would be unfair to allow the prosecution to change its case in that way and particularly in view of the repeated requests by counsel for the first applicant at trial for the prosecutor to identify more specifically the act of violence causing death upon which the prosecution relied.

55 Turning to the other arguments advanced by the first applicant, it is true that the prosecution chose to conduct the trial on the basis of common law murder, with statutory murder in the alternative. It is true that the prosecution chose to argue that the attempted armed robbery was a crime contemplated by s 3A of the Crimes Act. Should the prosecution now have the opportunity to retry the first applicant on a charge of murder in such circumstances and in circumstances where it will reformulate the manner in which it contends that the death of the deceased took place in the furtherance of a crime of violence, the crime of violence being one of armed robbery?

56 Recently the High Court in R v Taufahema has given guidance as to the circumstances in which the exercise of the power of an appellate Court to order a new trial may be soundly based.

... one of the key factors in assessing whether a new trial is an adequate remedy is "the public interest in the due prosecution and conviction of offenders". It is in "the interest of the public ... that those persons who are guilty of serious crimes should be brought to justice and not escape it merely because of some technical blunder by the judge in the conduct of the trial or in his summing up to the jury (footnotes omitted).

58 True it is in the present case that it was the decision of the prosecution to put its case in statutory murder on the basis that the relevant crime of violence was the crime of attempted armed robbery. However, there is little decided authority in relation to cases of statutory murder and thus reliance was placed upon the ruling of Murphy J in R v Morel. In such circumstances the course followed by the prosecution cannot be said to have been unreasonable.

59 A second matter raised by the majority[10] in Taufahema is the question of whether an order for a new trial is a more adequate remedy for the flaws in a first trial than is an order for acquittal. The question is whether there is some good reason for not allowing a jury to decide whether the prosecution can prove its case, and for allowing the matter to remain undecided because of the defects in the trial. In the case before us there is no argument other than that the deceased died in consequence of the discharge of a loaded firearm which the first applicant was holding as he was endeavouring to subdue the deceased by tying his hands behind his back. The question of whether or not a jury can find that such conduct amounts to statutory murder is the issue in this case. It is not suggested that the prosecution intends to advance any new evidence or factual allegation; the prosecution proposes to rely upon the same evidence as was called at the first trial. No doubt what it will seek to do is to rely upon the crime of armed robbery as being the relevant crime for the purposes of s 3A of the Act rather than attempted armed robbery, as in the first trial. To that extent the prosecution will be relying upon a 'new case'. However, in my view the difference between the case relied upon in the first trial and the case to be relied upon in a second trial is not a substantial one. As stated by the majority in R v Taufahema:[11]

... the difference between the case relied on in a first trial and the case to be relied on in a second trial must be substantial if the difference is to stand as a bar to an order for a second trial.

In my opinion a retrial of the first applicant on the count of murder is the appropriate order to be made in all the circumstances.

60 Likewise, the question of what course should be followed in the case of the second applicant requires consideration. The respondent has made no submissions in relation to that matter but the second applicant submits that the Court should direct an acquittal on the count of manslaughter. That would then necessitate a plea and re-sentencing on the remaining convictions for aggravated burglary, attempted armed robbery and the drug offence of which the second applicant was convicted.

61 It is submitted on behalf of the second applicant that his conviction of manslaughter was not open to the jury. It is argued that the prosecution case against the second applicant turned on whether murder could be made out against the principal, the first applicant, and furthermore whether the second applicant was complicit in the commission of that offence. Complicity in the murder was based upon extended common purpose for the purposes of the prosecution case at common law. In relation to statutory murder, complicity was put before the jury on the basis that the second applicant had acted in concert with the first applicant. Manslaughter was left against the first applicant as a principal on the basis of unlawful and dangerous act. It is argued on behalf of the second applicant that the crucial issue relied upon by the prosecution to inculpate him in both common law murder and statutory murder was his alleged knowledge that the gun carried by the first applicant was or might have been loaded.

62 It is submitted on behalf of the second applicant that his acquittal of murder 'must be taken to mean that the jury were not satisfied that [he] knew that the gun was or might be loaded'. It is argued that the charges of both common law murder and statutory murder require proof of such knowledge, and that it must therefore follow that the death of the deceased was caused in a way completely different from that contemplated by the second applicant.

63 In my view it does not follow necessarily that the acquittal of the second applicant on the counts of common law murder and statutory murder meant that the jury were not satisfied that he had no knowledge that the gun carried by the first applicant was, or might be, loaded. I have concluded already that it was not open for the jury to have convicted the first applicant of common law murder. However, if the jury convicted the first applicant of murder on that basis, it may well be that they acquitted the second applicant of murder on the basis that they were not satisfied beyond reasonable doubt that he contemplated the intentional killing of the deceased as a possibility in the carrying out of the enterprise of armed robbery, notwithstanding any knowledge he might have had as to the possibility of the handgun being loaded. The acquittal of the second applicant on the count of murder is not determinative of the relevant state of mind which may be relied upon by the prosecution upon a retrial of the second applicant on a charge of manslaughter.

64 Finally, it is submitted that R v Butcher is authority for the proposition that there is not room for manslaughter to be left as an alternative to statutory murder. In R v Butcher the Full Court held that the trial judge was correct in not leaving manslaughter by an unlawful and dangerous act to the jury. The Court said:[12]

In the circumstances of this case, the only act being considered was the holding out of the knife whilst demanding money and we are unable to see how manslaughter by an unlawful and dangerous act could have been put as an alternative to murder unless the robbery was at an end.

65 On this basis, counsel for the second applicant submits that manslaughter by unlawful and dangerous act was subsumed by statutory murder because any unlawful and dangerous act causing death also amounted to an act of violence causing death.

66 It is thus argued that the second applicant should not be retried on the count of manslaughter, but instead should be acquitted by direction of this Court. This argument cannot be accepted. It is apparent that for an act to be unlawful and dangerous, it need not be a violent act of the nature required by s 3A of the Act. In this case, irrespective of the knowledge of the second applicant as to whether or not the handgun in the possession of the first applicant was loaded, he was engaged in a joint enterprise. It was open to the jury to conclude that the use of violence was part of the planned enterprise and that death by reason of that violence was a possible result of the enterprise.

67 Accordingly, a retrial of the second applicant on the count of manslaughter is the appropriate order to be made in all the circumstances.

68 Counsel for each applicant has submitted that the fact that each applicant has been convicted of aggravated burglary and attempted armed robbery raises a 'sentencing conundrum' and that by reason thereof there should also be an order for a retrial of each of those offences. I do not consider that any such a sentencing conundrum arises. Clearly, if there is a conviction of one or both of the applicants upon their retrials, then the sentencing judge will be required to take the whole of the circumstances into account in sentencing.

69 By reason of the above conclusions, it will be necessary to re-sentence each of the applicants in relation to their convictions on the counts of aggravated burglary and attempted armed robbery. In addition, the first applicant pleaded guilty to one count of cultivation of a commercial quantity of cannabis and to one count of theft of electricity. Likewise, the second applicant pleaded guilty to one count of cultivation of cannabis. It will be necessary to re-sentence in respect of those matters as well.

70 I have had regard to the parties' submissions on the question of re-sentencing. It has been submitted before us by counsel for each applicant that the sentences imposed by the sentencing judge in relation to the offences of aggravated burglary and armed robbery should be reimposed. However, it is submitted that there should be no partial cumulation in respect thereof. In my view, having regard to the gravity and the separate elements of the offences of aggravated burglary and of attempted armed robbery and in particular to the gravity of the offending by each applicant in this case, it is appropriate to order partial cumulation of the sentences to be imposed in respect of each of those offences. Likewise in each case the drug offences were separate offences and partial cumulation is appropriate.

71 Taking into account the seriousness of the offending and the prior convictions of each applicant, and at the same time giving appropriate consideration to the matters of mitigation and other personal factors referred to by each applicant's counsel upon the hearing of the plea and the matters referred to in the remarks of the sentencing judge, together with the submissions made before us on this appeal, I consider that the following sentences should be imposed.

72 I would re-sentence the first applicant as follows:

• On the count of aggravated burglary - three years' imprisonment
• On the count of attempted armed robbery - three years' imprisonment
• On the count of cultivating a commercial quantity of cannabis - three years' imprisonment
• On the count of theft - three months' imprisonment

I would direct that two years of the sentence imposed on the count of aggravated burglary and 18 months of the sentence imposed on the count of cultivating a commercial quantity of cannabis, and one month of the sentence imposed on the count of theft of electricity be served cumulatively upon each other and upon the sentence imposed on the count of attempted armed robbery. This results in a total effective sentence of six years and seven months' imprisonment. I would direct that the first applicant not be eligible for parole until he has served a period of imprisonment of four years and three months.

73 In respect of the second applicant, I would re-sentence him as follows:

• On the count of aggravated burglary - three years' imprisonment
• On the count of attempted armed robbery - three years' imprisonment
• On the count of cultivating cannabis - twelve months' imprisonment.

I would direct that two years of the sentence imposed on the count of aggravated burglary and six months of the sentence imposed on the count of cultivating cannabis be cumulative upon each other and upon the sentence imposed on the count of attempted armed robbery. This makes a total effective sentence of five years and six months' imprisonment. I would direct that the second applicant not be eligible for parole until he has served a period of imprisonment of three years and nine months.

[1] In the course of the hearing of the application for leave to appeal against conviction the Court announced that it was of the view that for the above reasons the conviction of the first applicant of murder and the second applicant of manslaughter should be set aside. In consequence the parties were given leave to make further submissions in writing as to whether or not the convictions should be quashed and verdicts of acquittal entered, or whether retrial should be directed.

[2] (Unreported, Supreme Court of Victoria, 17 March 1983).

[3] [1986] VicRp 4; [1986] VR 43.

[8] [2007] HCA 11; (2007) 228 CLR 232.