R v Hartwick & Ors [2005] VSCA 264 | Case summary | Zoe

VICVSCA

R v Hartwick & Ors [2005] VSCA 264

[2005] VSCA 264

Court of Appeal (Vic)|2005-11-18|Before: CHARLES, CHERNOV and NETTLE, JJ.A.

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Source facts

Court

Court of Appeal (Vic)

Decision date

2005-11-18

Before

CHARLES, CHERNOV and NETTLE, JJ.A.

Source

Original judgment source is linked above.

Judgment (217 paragraphs)

[1]

[2005] VSCA 264

[2]

CRIMINAL LAW - Murder - Complicity - Common purpose - Extended common purpose - Aiding and abetting - Whether judge erred in directions as to common purpose, extended common purpose or aiding and abetting - Manslaughter - Manslaughter by extended common purpose - Whether judge erred by failing to leave manslaughter by extended common purpose as an available alternative verdict - Markby manslaughter - Whether Markby manslaughter different to manslaughter by extended common purpose - Whether judge erred by failing to leave Markby manslaughter as a separate available alternative verdict - Provocation - Whether judge erred by failing to leave provocation as an available partial defence - Trial - Whether judge erred by failing to order separate trials for co-accused - Discharge of jury - Whether disclosure of evidence of bad character necessitated discharge of jury - Evidence - Consciousness of guilt - Lies - Need to identify lies said to evidence consciousness of guilt - Whether judge erred by failing sufficiently to identify lies said to evidence consciousness of guilt - Prior inconsistent statements - Adequacy of directions as to prior inconsistent statements - Propensity - Whether judge erred by failing to give propensity direction - Causing serious injury intentionally - Commission of offence by extended common purpose - Whether judge erred in failing to direct on need for accessory to foresee intentional causing of serious injury by co-offender - Appeal against conviction allowed in part - Sentencing - Re-sentencing substantially in accordance with trial judge's sentencing disposition.

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1 After a trial in the Supreme Court that lasted 46 sitting days, on 29 November 2002, the jury found each of John Douglas Hartwick ("John Hartwick" or "Hartwick" or "John"), Lisa Jane Hartwick ("Lisa Hartwick" or "Lisa") and Celia Kathleen Clayton ("Clayton") guilty of one count of murdering Stephen Borg ("Borg" or "the deceased") (count 1) and one count of intentionally causing serious injury to Paula Rodwell ("Rodwell") (count 2). After hearing a plea in mitigation made on behalf of each applicant, on 13 March 2003, the learned trial judge imposed a sentence of 18 years' imprisonment on each of the applicants in respect of the count of murder. In relation to the count of intentionally causing serious injury, his Honour sentenced each of John and Lisa Hartwick to twelve months' imprisonment, and Clayton to eighteen months' imprisonment. His Honour directed that the sentences on count 2 imposed on John and Lisa Hartwick be served wholly concurrently with those imposed on count one, thus imposing, in each case, a total effective sentence of 18 years' imprisonment. His Honour set a minimum term of 14 years' imprisonment before either would become eligible for parole. In relation to Clayton, his Honour directed that six months' of the sentence imposed on count 2 be served cumulatively with that imposed on count 1, thus imposing a total effective sentence of 18 years and six months' imprisonment. His Honour fixed a minimum term of 14 years and six months' imprisonment before Clayton was to be become eligible for parole.

2 All three applicants now seek leave to appeal against conviction on a variety of grounds. Clayton also seeks leave to appeal against sentence. After filing their respective notices, all applicants foreshadowed substantial amendments to the proposed grounds of appeal against conviction and, in the result, a directions hearing was conducted by Charles, J.A. on 16 November 2004 to clarify the extent of the proposed amendments and to settle other matters relevant to the conduct of the appeal. At the outset of the hearing of the appeal before us, the parties applied formally to amend the grounds of appeal. The respondent did not oppose the application and, in the circumstances, the Court granted the applicants leave to make the amendments sought. We will discuss the amended grounds that were pursued later, but first we will describe briefly the circumstances of the offending.

Circumstances of offending

3 It is convenient to describe first the offenders and the victims and the relationships between them. The victim of the offence that is the subject of count 1, Borg, was killed on 23 May 2001. He was then 30 years old. He had a relationship with Rodwell, who lived at 37 Karingal Drive, Karingal, an outer suburb of Melbourne, and was the father of three of her children. He did not live with Rodwell but was visiting her at the time of the offending. Borg was a regular user of drugs and had a long criminal history. Rodwell also used drugs and, as was the case with each of the applicants, had a number of prior convictions. John Hartwick (who was aged 49 at the time of the offending) and Lisa (who was then aged 38) had been married to one another, but at the relevant time were divorced. Notwithstanding this, and despite the fact that Lisa had obtained an intervention order against John in October 2000, they generally maintained a reasonably amicable relationship and John often visited Lisa and stayed over at her premises at 3 Karingal Drive. Both knew Borg and Rodwell, although they were not friends. In fact, there was some evidence given at the trial that indicated that the relationship between John Hartwick and the deceased had, in the past, been acrimonious. Clayton, who was then aged 24 years, was a friend of Lisa Hartwick and had only met Rodwell on two occasions prior to the date of the offences; it seems that she had never met the deceased.

4 We now turn to the circumstances leading to Borg's death. In the afternoon of 23 May 2001, Clayton, who lived in Hastings, visited Lisa Hartwick at her home. Later that evening, together with Lisa's son, they drove to the local shopping centre and on the way back noticed Rodwell standing at a nearby bus stop. It should be mentioned, by way of background, that Lisa Hartwick disliked Rodwell because she believed that Rodwell had informed on John Hartwick to the police, contrary to their code of conduct. Being of that frame of mind, she stopped her car, went over to Rodwell and assaulted her, saying, amongst other things, that Rodwell owed John Hartwick $400 and accused Rodwell of calling him a "dog", thereby alleging that he was a police informer. Rodwell denied these assertions and, at her suggestion, they all went to Lisa's house to clear these matters up with John Hartwick. When John was told what had occurred he said to Lisa that she had made a mistake and that it was in fact Borg who had accused him of being a "dog". The two women applicants then apologised to Rodwell and drove her home. When Rodwell reported the incident to Borg, who had shortly before this consumed a quantity of drugs, he became furious at the way she had been treated. In this agitated state, he drove to Lisa Hartwick's house in a stolen car and accelerated into her driveway, smashing his car into the rear of Clayton's rental car. As a consequence, her car was propelled into one that was parked directly in front of it. Not surprisingly, the two cars were substantially damaged and some damage was also caused to the house. The deceased then reversed out of the driveway and returned to Rodwell's home where the two consumed a cap of heroin.

5 When the applicants discovered what had occurred in the driveway they became very angry and agitated. A number of witnesses, who were neighbours of Lisa Hartwick, gave evidence that after the deceased had smashed into Clayton's car they saw the applicants all in an angry state and heard them yelling about taking revenge against Borg. For instance, Larene Pearce, her son Dale, and his friends Stephen Smith and Leah Robertson, were at Lisa's house when Borg drove his vehicle into the parked cars. Larene Pearce was a long-time friend of the Hartwicks. In her evidence-in-chief she said that the applicants were very angry at the incident and that she, Pearce, had left the house, taking her son and the two other children with her because she "didn't like the atmosphere". She said that she saw each of John Hartwick and Clayton with a knife. Stephen Smith gave evidence that the two women applicants were particularly angry and that, at various times, John Hartwick had told them to "calm down." Similarly, Keith John Peter Canham ("Canham"), who lived in the house opposite 3 Karingal Drive and had observed the deceased's car being driven into the parked cars, said that John Hartwick had tried to calm down the two women applicants. According to Canham John Hartwick told them that he would "sort it out", but he rejected the contention put to him in cross-examination that John was a "peacemaker" in relation to the incident. He said that John had told his co-offenders - "Lets go down and fix these bastards" and that Clayton had yelled - "I'm going to cut the bastard's throat." Canham's wife, Rhonda Canham, said in her evidence that the two women applicants had made reference to a "sheila" and said - "Lets go down and sort them out."

6 According to the evidence of the Crown witnesses, over the course of half an hour or so after the incident in the driveway, Lisa Hartwick proceeded to collect metal poles and pieces of wood from around the property. Canham said that he saw her carrying three poles - one of which he identified as a galvanised water pipe (but which turned out to be a metal pipe from a vacuum cleaner), a pole marked "Bi-Lo" (which was a shopping trolley handle) and a wooden cricket stump. Before she left for Rodwell's premises, Lisa arranged for a friend to come and collect her son and for her car, which had not been damaged, to be placed in Canham's garage. At some point, either before or after Lisa began collecting the metal poles and wood, John Hartwick sped off in his car in chase of a white utility vehicle that had driven past the property a number of times that evening. He did so because Lisa said that she believed its driver may have been somehow involved in the incident. He was away for approximately ten minutes during which Clayton went to a nearby house. When she returned, she was carrying a large carving knife. The evidence of Canham's son, Aalvis, was that Lisa Hartwick was impatient for Clayton to return and told him to fetch her and tell her that if she did not come back soon, she and John would go to find Borg without her. According to Canham a good 40 minutes elapsed before the three applicants left.

7 Having armed themselves as described, the offenders drove to 37 Karingal Drive where they banged on the front door, demanding to be let in and yelling words to the effect "we're going to get you." At this point, Rodwell pleaded with Borg to go out by the back door and leave the matter to her to sort out, presumably believing that she could calm the applicants. Once the deceased left the house, Rodwell went to the front door. When she opened it one of the applicants struck her on the head with a metal pole, inflicting a wound that later required eight stitches. The applicants then forced her back into the house and on to the couch where one or other of the two women held her at knife point. One of the applicants cut the telephone wires to the house and at one point, Lisa Hartwick took Rodwell, who was bleeding heavily from her wound, to the kitchen and attempted to stem the flow of blood. John and Lisa Hartwick then went through the house looking for the deceased. A short time later Borg returned to the house and when the applicants saw him they attacked him with their weapons. According to Rodwell, at first Borg and John Hartwick attempted to "dagg" (stab) one another. John Hartwick then called for assistance from his co-offenders, who took it in turn to participate in attacking Borg, while Clayton held Rodwell hostage. In the result, the deceased was severely beaten with the poles and stabbed a number of times; his left ear was almost severed, five of his teeth were knocked out and he was fatally stabbed on the left side of his chest, the knife puncturing his heart and a lung. He died a short time later. Near the end of the frenzied attack, which lasted 30 to 40 minutes, John Hartwick was, according to Rodwell, accidentally stabbed by Lisa Hartwick and it was only at that point that the attack on the deceased stopped. In the course of their attack, the applicants took several items from the victim's pockets, including money and cannabis, supposedly as compensation for the damage caused by him to Clayton's vehicle. The applicants then returned to 3 Karingal Drive, but before they left Rodwell's house they stole a number of items and Lisa splashed water over the wall unit in order to remove any fingerprints. According to Rodwell, Lisa Hartwick said to her: "You know the rules - no dogging." After they left, Rodwell ran to the neighbours' house from where she called for assistance and shortly thereafter the ambulance and police arrived. Borg died a short time later from the injuries he sustained during the attack.

Summary of Crown case

8 We now turn to give a brief summary of how the Crown put its case at trial in respect of each of the two counts. As will be explained more fully later, in respect of count 1 the Crown contended that, although it could not identify which of the applicants inflicted the fatal stab wound, each was guilty of murder of the deceased on the basis of complicity. Alternatively, the Crown argued, each was guilty of manslaughter. The Crown put its case on murder by complicity on three alternative bases. The principal argument was that the killing occurred in the course of their implementation of a plan to cause really serious injury to the deceased. The Crown argued, in the alternative, that the applicants were guilty of murder because each had agreed to assault the deceased using weapons and reasonably foresaw the possibility that death or really serious injury might be intentionally inflicted on Borg by one of them in the course of their carrying out the agreed lesser crime. In the further alternative, the Crown argued that the two applicants who did not inflict the fatal wound aided and abetted the principal offender by being present when the fatal stabbing occurred and by intentionally helping, encouraging, or conveying their assent to, the principal in his or her commission of the murder. The Crown's principal case on count 2 was that Clayton had intentionally caused serious injury to Rodwell by hitting her on the head with a metal pole and that the other applicants were also guilty on the basis that they were complicit in the commission of the offence. The Crown relied on essentially the same three alternative routes for finding complicity as it did in relation to count one.

Grounds of appeal

9 We now turn to consider the grounds of appeal that were pressed for the applicants and we do so principally in the order in which they were argued. Not surprisingly, there was considerable overlap in the grounds on which each of them eventually relied, but counsel adopted the sensible course of dividing argument between them so that one counsel presented the case on a particular ground and the others generally adopted such submissions, adding only matters that were thought to be of particular relevance to the applicant concerned.

Error in direction on extended common purpose

10 The first matter that was argued, principally by Mr Croucher for Lisa Hartwick under cover of ground 1 of her amended notice, was that his Honour erred in his direction to the jury as to the operation of the principle of extended common purpose in respect of counts 1 and 2. In general terms, it was said that the judge failed to tell the jury that before they could properly convict the accessory of the more serious crime that was perpetrated by the principal offender they had to be satisfied beyond reasonable doubt that the accessory foresaw the possibility that one of the co-offenders might, in the course of carrying out their unlawful agreement or understanding to assault Borg with weapons, in relation to count 1, intentionally kill the deceased or cause him really serious injury and, in respect of count 2, intentionally cause Rodwell serious injury. More particularly, it was submitted that, although his Honour correctly pointed out to the jury that in order to convict the accessory of the two counts on the basis of extended common purpose the Crown had to establish relevant foreseeability by him or her of the principal offender's actus reus, he failed to tell them that the Crown also had to prove foreseeability on the part of the accessory of the principal's intention to commit the crime in question. A like argument was put by the applicants in relation to count 2. Counsel argued that such error on his Honour's part resulted in a substantial miscarriage of justice and that, therefore, the convictions must be set aside and a new trial ordered. We now turn to examine the arguments in the context of each of the two counts.

11 Before dealing with the specific arguments, however, it is convenient to explain briefly the circumstances in which a document, marked by his Honour as "DPP 22", came into existence and how it was used at the trial. As will become apparent, it was provided to the jury in the course of the judge's charge on the basis that it set out in summary form the elements of the various offences that the Crown had to establish if it were to secure conviction on the two counts in question. The form of this document evolved as the charge progressed and, in the course of its development, counsel for each party made submissions to his Honour about its contents. The document was produced in two parts, which were then combined to constitute DPP 22. The first part, which initially constituted a self-contained document, dealt only with the elements that were said to constitute murder by complicity and the alternative of manslaughter. Later, another written summary was produced that dealt only with the elements of the charge in count 2. As each document was settled it was provided to the jury and later, when DPP 22 was eventually produced, it replaced the earlier documents. In large part, his Honour directed the jury on the relevant aspects of murder, manslaughter and count 2 by reference to that document but, as will be seen, his Honour's oral charge explained, and materially expanded, its contents.

Murder by extended common purpose - error in direction

First applicant - Ground 8(a)

Second applicant - Ground 1(a)

Third applicant - Ground 5

12 Ground 1(a) in Lisa Hartwick's, ground 8(a) in John Hartwick's and ground 5 in Clayton's notice of appeal are that the judge erred in the directions he gave concerning the application of the doctrine of extended common purpose to murder. The essence of the complaint is that the judge did not convey to the jury that in order to convict an accused of murder on the basis of the doctrine of extended common purpose the jury had to be satisfied that the accused foresaw the possibility that in carrying out the common enterprise a co-accused might act against the deceased with the intent to kill or inflict really serious physical injury.

13 In order to convict an accused of murder on the basis of the doctrine of extended common purpose the jury had to be satisfied that the accused foresaw the possibility that the co-accused would act with intent to kill or inflict really serious physical injury. The law was so stated by the High Court in McAuliffe v The Queen as follows:

[53]

23 Given that the jury had been made to understand that the crime of murder involved intention to kill or cause really serious injury on the part of the murderer, they would have understood from his Honour's example that an accessory will only be guilty of the more serious crime if he or she foresaw the possibility that the offender might intentionally kill or cause really serious injury to the victim during the execution of their common purpose.

24 Mr Croucher submitted that the jury would have treated DPP 22 as encapsulating all the essential elements of the relevant offences and, therefore, as effectively putting to one side his Honour's oral charge. He pointed to the following matters as making it likely, or at least creating the real risk, that the jury would have had regard to DPP 22 to the exclusion of his Honour's oral charge. First, he said, the jury had the document available to them during their deliberations, making it likely that, as a matter of convenience, they would use it as the repository of the elements of the offence that they were analysing. Indeed, said Mr Croucher, his Honour repeated his invitation to the jury to use the document as a "check list" shortly before they retired to consider their verdict so that they would have had the document impressed on their minds as they embarked upon their deliberations. Secondly, the jury were directed by reference to the document. And thirdly, the relevant oral directions on this issue were quite brief when compared with those detailed in DPP 22.

25 There is some force in these submissions. It might indeed have been preferable for his Honour to have said, in terms, in his oral charge and in DPP 22, that an essential ingredient of murder by extended common purpose was foreseeability by the accessory of the possibility that a co-offender might intentionally kill or cause really serious injury to the deceased. But the real question is, we think, whether this requirement was sufficiently conveyed to the jury in his Honour's charge. In that context, as the High Court[5] emphasised in R. v. Cha_i[6],_ two matters should be borne in mind when considering the attack on the charge:

[55]

26 In our judgment his Honour's oral charge and the aide memoire - DPP 22 - did convey sufficiently to the jury the essential elements of murder by extended common purpose, including foreseeability by the accessory charged with murder of the possibility that a co-offender might intentionally kill or cause really serious injury to the victim in the course of carrying out the agreed criminal enterprise. Although this element was not stated in terms in the above paragraph 2(b) of DPP 22,[8] we consider that the jury would have appreciated that such a requirement was implicit in the document. We have come to this conclusion essentially for the following reasons. First, we are of the view that it would have been plain to the jury from what his Honour said to them about DPP 22 that its terms were not to be considered in isolation from the remainder of his Honour's charge. His Honour made it apparent that the document was, in effect, an aide memoire, that it was a "check list" and that they should use it if they "needed it". This clearly implied, we think, that the jury should bear in mind the whole of the charge as to the elements of the several offences that they were considering and refer to DPP 22 as a guide and only if they felt there was a need to do so. Secondly, there is no doubt that the jury understood that an essential element of the crime of murder is intention by the perpetrator to kill the deceased or cause him really serious injury. Thirdly, the oral direction to the jury as to the elements of murder by extended common purpose, particularly by reference to the example of the fishermen, would have made it plain to them that they had to be satisfied that the accused under consideration foresaw the possibility that the principal would commit "that crime", namely, murder, and that this foresight by the accessory must be of all the essential elements of murder, including the principal's intention to kill or cause really serious injury to the deceased. Given the terms in which his Honour had already defined murder - in paragraph (1)(a) of DPP 22 and his oral charge - the jury would have understood that an essential element of murder by extended common purpose was foresight by the accessory of the principal's relevant intention. Indeed, the example involving the fishermen, chosen by his Honour, fitted closely the wording of the charge on this aspect of the case that was sought by counsel for Clayton, who asked for a direction that an element of murder by extended common purpose involved foreseeability by the accessory that the deceased "might be murdered" by a co-offender. This is essentially what the learned trial judge told the jury in the context of his above example.

27 In the result, we consider that the relevant aspects of his Honour's charge sufficiently explained to the jury so much of the requirements of the law relating to murder by extended common purpose as they needed to know in order to decide if the Crown had made out its case against the applicants on that basis, notwithstanding that, as we have said, it would have been preferable for the learned trial judge to have included, both in his oral charge and in paragraph 2(b) of DPP 22,[9] a specific reference to the requirement as to the foreseeability by the accessory of the principal perpetrator's relevant intention.

28 It follows that ground 8(a) of the amended grounds of John Hartwick, ground 1(a) of Lisa Hartwick and ground 5 of Clayton, must all be rejected.

Directions regarding "possibility" in extended common purpose doctrine

First applicant - Grounds 8(b) and 12(b)

Third applicant - Grounds 6 and 12

29 Ground 8(b) in John Hartwick's and ground 6 in Clayton's notice of appeal are that the judge erred in the directions he gave concerning the doctrine of extended common purpose in that he did not provide any guidance as to the meaning of the word "possibility" beyond using the alternative "might". It was submitted that the jury should have been directed that "possibility" means "a real or substantial possibility" and because the judge did not so direct them, the jury may have decided "on the basis that anything is possible" (presumably meaning that a remote possibility would suffice no matter how fanciful it may be). None of the applicants' counsel at trial asked the judge to define "possibility" in his charge and no exception was taken to his Honour's directions on the basis that no such definition has been provided to the jury.

30 Mr Tehan for the first applicant, and Mr Boyce for the third applicant, referred to R. v. Powell and English[10] and R v. Jenner and Masters[11] and to the editorial article by Stephen Odgers of counsel in (2004) 28 Criminal Law Journal 5.[12] They did not contend, however, that the claimed error, if established, would, by itself, be productive of a miscarriage of justice. Nevertheless, it was said, such an error, when taken together with other errors for which the applicants contended, would amount to a miscarriage of justice in accordance with the principles stated in R. v. Kotzmann[13].

31 We do not consider that there is any merit in the point. First, as has been seen, the judge explained the doctrine of extended common purpose in terms which more or less accord exactly with the terms in which it was defined in McAuliffe[14] and Gillard[15]. The trial judge in McAuliffe did not define "possibility" in his charge and it was not suggested by the High Court that his Honour thereby erred or that it would have been preferable to have given a definition of that term to the jury. In Gillard the High Court considered it was sufficient for the trial judge to have told the jury that the subject of the required foresight on the part of the accessory was the commission of the crime as "a possible incident in the common criminal enterprise". (Emphasis added.) Their Honours also spoke of "the intentional infliction of grievous bodily harm as a possible incident of the illegal venture". (Emphasis added.) Secondly, the argument overlooks the facts of the matter and in particular that the Crown case was that the accused was guilty of murder on the basis of the doctrine of extended common purpose, in that there was an agreement to assault with weapons and that the parties to such an agreement would have foreseen the possibility of "the stabber" striking with intent to kill or inflicting really serious physical injury in the course of carrying out that agreement. Thirdly, this was a murder trial, and as was made plain to the jury over and over again, it was a most serious occasion. They knew therefore that they were not to convict unless they were satisfied beyond reasonable doubt of each and every element of the offence which was charged. In those circumstances we exclude as fanciful the suggestion that the jury may have convicted on the basis of a possibility of which they were no more satisfied than that "anything is possible".

32 We add for completeness that, in our view, neither the Odgers editorial nor the two cases on which Mr Tehan relied, which we have noted earlier, assist his argument that his Honour erred in not telling the jury that, in the relevant context, "possibility" meant real or substantial possibility. There is no suggestion in that material that a trial judge should, when directing the jury on extended common purpose, tell them that "possibility" has that meaning. In Powell, Lord Steyn, to whose speech Mr Tehan drew our attention, said[16]: "The foresight of the secondary party must be directed to a real possibility of the commission by the primary offender in the course of the criminal enterprise of the greater offence". Thus, his Lordship confirmed that, in the relevant context, "possibility" is to be taken to be a real possibility. But this does not take counsels' argument any further given that it was common ground before us that "possibility" relevantly meant real or substantial possibility. Moreover, there is no suggestion in Powell that a trial judge must or should tell the jury that in the context of the principle of complicity, "possibility" means real or substantial possibility. Similarly, no suggestion to that effect was made by Doyle, C.J. in Jenner and Masters. In that case the court did not deal with the issue now under consideration. The relevant matter considered in Jenner and Masters was whether the trial judge should have directed the jury, in relation to a charge based on extended common purpose, that the accessory foresaw the use of the weapon by the principal perpetrator "as a substantial risk rather than as a possibility". The learned Chief Justice concluded that it was not necessary for a trial judge to direct the jury "in terms of the risk of the further crime being committed being a substantial risk" as was claimed by the appellant in that case. This conclusion was consistent with cases such as McAuliffe, as his Honour recognised.[17] His Honour went on to say that "directions have been upheld which appear to make no reference to the concept of substantial risk, and which are expressed simply in terms of what was contemplated as a possible incident of the agreed enterprise".

33 In the editorial by Mr Odgers the learned commentator said: "One of the primary elements of a 'foresight of possibility' test is that, since most things are 'possible', particularly if they do in fact happen, a jury will almost invariably reason that the accused accessory must have foreseen the possibility that the principal offender might in fact commit the crime for which the accessory is to be made liable." But in our view, even if one were to accept this general observation as being accurate, in the context of this particular case, for the reasons we have given, there was no real risk that the jury would have reasoned as contended for by the applicants or Mr Odgers.

34 Finally, on this aspect of the matter, we note that his Honour's observations during his discussion with counsel that "possibility" could be taken to mean that "anything is possible" should be seen in its proper context. It is clear that the matter was raised by his Honour, as is so often done in the course of discussion between Bench and Bar, for the purpose of examining all the alternative approaches to the particular issue. But we have no doubt that his Honour correctly appreciated that "possibility" for relevant purposes meant real or substantial possibility and that it did not have a meaning based on the notion that "anything is possible". His Honour was also well aware that the authorities recognise that it is sufficient for the trial judge to explain the principle of extended common purpose, and its operation, by reference to the accessory foreseeing the possibility of the crime being committed by a co-offender without telling the jury, in terms, that in that context "possibility" should be understood to mean a real or substantial possibility. That his Honour so understood the position is made apparent from what he said during the discussions with counsel, namely, that the authorities spoke "about real possibility", although it interested him "that the authorities just gaily talk about the possibility, without saying more".

Directions on accessories' state of mind re "dangerous" and manslaughter

First applicant - Ground 9

Second applicant - Ground 2(a)

Third applicant - Ground 8

35 Ground 2(a) in Lisa Hartwick's, ground 9 in John Hartwick's and ground 8 in Clayton's notice of appeal are that the judge erred in the directions he gave concerning complicity in manslaughter, in that:

[82]

We do not see in those directions any error of the kind suggested.

39 It is trite that unlawful and dangerous act manslaughter consists in the unintentional causing of death by an unlawful and dangerous act, and "dangerous" in that context means that a reasonable person in the position of the offender would have foreseen that the act created a significant risk of serious injury.[19] The judge correctly described it as such in the relevant part of the charge[20].

40 It is equally clear that in order that an applicant be convicted of manslaughter on the basis of having acted in concert pursuant to an agreed arrangement or understanding with a killer who commits unlawful and dangerous act manslaughter, the killer's unlawful and dangerous act must have been within the scope of the agreed arrangement or understanding. So, in order to convict on that basis, the jury must be satisfied that the arrangement or understanding expressly or tacitly comprehended that in its carrying out the deceased might be so attacked with a weapon as to create an objectively significant risk of serious injury. In our opinion the judge made that plain.

41 It is true that the judge did not use the words "an agreement of which it was within the scope to commit an unlawful and dangerous act upon the deceased". But his Honour was not required to use any particular form of words. His task was to bring home to the jury in terms that they were most likely to understand so much of the law as they needed to know on the matters which were in issue[21]. What the judge said to the jury was adapted to that end. Self-evidently, a reasonable person in the position of the applicant would say that to assault with weapons so as to cause more than trivial injury creates an appreciable risk of serious injury. It follows that an agreed understanding or arrangement to assault with weapons to cause more than trivial injury (albeit less than really serious physical injury) is an agreed understanding or arrangement which has within its scope the commission of an unlawful and dangerous act. The judge told the jury that the Crown had to prove an agreed understanding or arrangement with the stabber to assault the deceased with a weapon or weapons in such a way as to cause more than trivial injury, but less than really serious injury.

42 The applicants' argument also ignores that the judge's charge cannot properly be read independently of the context of the conduct of the trial. It must be construed in the light of the questions which have been raised by the counsel for the prosecution and for the defence respectively[22]. And in the way in which the trial was conducted there was no issue as to whether an agreement to assault with weapons to cause more than trivial injury was conceptually capable of falling short of an agreement to commit an unlawful dangerous act. The issue was whether there was an agreement to assault with weapons to cause more than trivial injury. Indeed the idea of charging the jury in terms of an agreement to assault with weapons so as to cause more than merely trivial injury was the formulation to which the judge and counsel came together after extensive discussion of the best way of conveying to the jury the facts of which they would need to be satisfied before convicting of manslaughter by complicity. In our opinion it conveyed just that.

43 The efficacy of the charge derives further support from the decision of the High Court in R v Chai[23]. That case was also concerned with the adequacy of a trial judge's charge on accessorial liability for manslaughter and in some respects the facts were similar to the facts of this case. Critically, the only relevant acts of assault were acts of serious violence such as punching, kicking, stamping on, or hitting with wooden sticks or a golf club. The trial judge gave oral directions to the jury on the elements of unlawful and dangerous act manslaughter and also gave to the jury a document in which the elements of manslaughter were described as follows:

[92]

45 Similar observations apply here. Given the way in which the case was conducted and the evidence which was before the jury, the suggestion that the jury would have taken the trial judge to be referring to "merely technical assault" is completely hypothetical. That conclusion is made even more certain in this case by the judge's description of the agreement as one to assault with weapons and so as to inflict more than trivial injury.

Failure to leave unlawful dangerous act manslaughter on the basis of "extended common purpose"

First applicant - Ground 10

Third applicant - Ground 7

46 Ground 10 in John Hartwick's and ground 7 in Clayton's notice of appeal are that the judge erred by failing to leave for consideration by the jury the offence of manslaughter on the basis of extended common purpose. The argument is based upon the decisions of the High Court in Gilbert v The Queen[25] and Gillard v The Queen[26] and of this court in R v Makin[27]. It is contended that the applicants were disadvantaged by the judge's omission to direct the jury's attention to an alternative form of manslaughter which it is said was more likely to be understood and accepted by the jury than the form of manslaughter by concert with which they were presented.

47 The first answer to that contention is that manslaughter by extended common purpose was not more likely to be understood and accepted than manslaughter by concert. The Crown's case was run on the basis that there was an agreement to bash or assault with weapons, and for the reasons already given that meant an agreement to commit an unlawful and dangerous act. Manslaughter by concert was thus the form of manslaughter that was most closely allied to the way in which the case was put. To have left manslaughter by extended common purpose in those circumstances would have added nothing but unnecessary complexity and the possibility of confusion.

48 In the second place, and assuming for the sake of argument that an agreement to assault with weapons to cause not mere trivial injury was not necessarily an agreement to commit an unlawful and dangerous act, and thus that it had been open to leave manslaughter by extended common purpose to the jury, one can still be confident that it would not have increased the likelihood of the jury returning a verdict of manslaughter as opposed to murder. This was not a case like Gillard where the jury were left with an all or nothing choice between murder and acquittal and therefore in respect of which one cannot exclude the possibility that if an option of manslaughter had been left to the jury they might have taken that option. As the jury were directed it was open to them to acquit of murder and convict of manslaughter if they were satisfied that there was an agreement to assault with weapons so as to inflict more than trivial injury and were not satisfied that it was within the scope of the agreement to kill or inflict really serious physical injury or that the applicant had foreseen the possibility that a co-accused would kill or inflict really serious physical injury.

49 Moreover, if the jury had not been satisfied of the existence of such an agreement they would have acquitted altogether. If they had been satisfied of the existence of such an agreement, but nothing more, they would have convicted of manslaughter by concert. And, by the same token, the jury could not have returned a verdict of murder as opposed to manslaughter unless they were satisfied not only that there was an agreement to assault with weapons but also that it was within the scope of the agreement to kill or inflict really serious physical injury or that the applicant had foreseen the possibility that a co-accused would kill or inflict really serious physical injury.

50 It follows that in contradistinction to the position in Gillard, where manslaughter by extended common purpose would have provided the jury with an option between the possibility of acquittal which the jury rejected and the offence of murder of which they convicted, in this case the option of manslaughter by extended common purpose would have added an option that was even further from the offence of murder of which they convicted than the option of manslaughter by concert which they rejected. Therefore, as Mr Tehan for John Hartwick frankly conceded, it was even more unlikely that the jury would have chosen manslaughter by extended common purpose than that they would have chosen manslaughter by concert.

51 In the third place, as Ormiston, J.A. explained in R v Franklin [28]:

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The applicants argued that by failing to leave that form of manslaughter to the jury as a separate category of manslaughter open on the facts, the judge deprived the applicants of yet another chance of acquittal of murder, in the sense contemplated in Gillard.

54 One answer to that contention is that the sort of manslaughter referred to in Markby is in truth no different to the sort of manslaughter by extended concert that was dealt with in McAuliffe. The idea that Markby manslaughter is based upon an objective test of the possibility of unlawful dangerous act is a misunderstanding of the expression "no more than an unexpected incident in carrying out the common design."[33] At least that is the view reached by O'Bryan A.J.A. in R v PDJ[34] after extensive consideration of the relevant authorities, and with respect we are inclined to agree.

55 A second answer is that even if Markby manslaughter were a separate category of manslaughter, the failure to leave it to the jury in this case could not have detracted from the applicants' chances of acquittal. Like the category of McAuliffe manslaughter to which we have already referred, it ill-accorded with the way in which the case was conducted; it was beyond the range of possibilities limited by murder and manslaughter by concert; and it would have done nothing to broaden the factual basis on which a verdict of manslaughter might have been reached. Therefore we see no merit in the point.

Directions on aider and abetter's state of mind re unlawful dangerous act manslaughter

Second applicant - Ground 2(b)

Third applicant - Ground 10

56 Ground 2(b) of Lisa Harwick's and ground 10 in Clayton's notice of appeal are that the judge erred in the directions given as to aiding and abetting unlawful dangerous act manslaughter.

57 The judge told the jury in both the written and oral directions on aiding and abetting that an accused was not liable to be convicted as an aider and abetter unless that accused were shown to have been "aware that the deceased was being consciously, voluntarily and deliberately assaulted with a weapon and not in self defence". The complaint now made is that the judge should have told the jury that it was necessary for the Crown to prove that the accused was aware that the principal was assaulting the deceased and thereby exposing the deceased to an appreciable risk of injury. It is said that because the judge did not give such a direction the jury may have considered that it was enough for the Crown to establish that the aider and abetter believed that the deceased was being subjected to a minor or technical assault. From that it is said to follow that the jury may have excluded the possibility of manslaughter as far removed from the reality of the case with which they were dealing. And from that it is said to follow that the applicant may have been deprived of a chance of being convicted of manslaughter as opposed to murder.

58 The complaint is essentially the same as that made about the directions given concerning unlawful and dangerous act manslaughter on the basis of concert. The answer to it is therefore essentially the same as that already given. In light of the way in which the case was conducted and the evidence that was before the jury, the suggestion that the jury would have taken the judge to be referring to a mere "technical assault, or at least one that was not dangerous, was purely hypothetical. It bore no relationship to the evidence in the case, or to the way in which the case was left to the jury. ...Nothing in the evidence suggested the scenarios mentioned ... . They are inherently improbable. They were not raised as possibilities in the summing-up. They were not raised as possibilities in the final addresses of counsel."[35]

Directions as to accessories' state of mind concerning self-defence

First applicant - Ground 14

Second applicant - Ground 3

Third applicant - Ground 14

59 Ground 14 in John Hartwick's, ground 3 in Lisa Hartwick's and ground 14 in Clayton's notice of appeal are that the judge erred in the directions he gave concerning liability as an aider and abetter. The complaint is that his Honour did not tell the jury that an applicant was not liable as an aider and abetter of a co-accused if the applicant believed that the co-accused was acting in self defence.

60 That complaint is equally unfounded. It pays no regard to the way in which the case was conducted at trial. The only point on self-defence advanced at trial was that the Crown had to negative the possibility that the stabber had acted in self-defence. It was not suggested that the Crown had also to exclude the possibility that if the stabber had not acted in self-defence, an applicant who was not the stabber may have assisted the stabber in the belief that the stabber was acting in self-defence. Similarly, apart from the evidence that was said to support the possibility that the stabber may have acted in self-defence there was no evidence or other basis to suppose that any applicant believed that the stabber acted in self-defence. None of the applicants gave evidence.

61 In argument before us counsel for the applicants suggested that the applicants' records of interview established a basis for belief in self defence. But in our opinion that is plainly not so:

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(1) In his record of interview, John Hartwick in effect denied that he had gone to Rodwell's house and claimed that he was wounded while attempting to buy marijuana at a nearby Bi-Lo supermarket[36].

(2) In her records of interview Lisa Hartwick said that she had seen the deceased stab John Hartwick, but she maintained that she was in no way involved. She said that she did not know how the deceased had died until she was told. According to one of the versions of the facts she gave in the interview, she saw the deceased stab John Hartwick and that they "...were scuffled into the lounge room". According to her, she was standing in the doorway and could not look[37]. In another version, she said that when she was standing in the doorway inside the house she saw the deceased come up the front steps of the house toward John Hartwick and stab him creating a "big gash" and that "they [the deceased and John Hartwick] were inside and they were ruffling". But she said: "I didn't see 'cos I didn't want to look" and that later on she had gone to get a towel for Paula Rodwell because she was bleeding.[38] In a third version, she said that the deceased was on the ground, "but I didn't see. I only saw, like, his feet and that, 'cos I went in, 'cos they were yelling at me, 'Get in and get a towel for her.'" And that: "...I didn't actually see - like, I only seen clothing part, you know, and I didn't see anything ...I didn't see nothing. It was just, like, his -yeah."[39] In her final version of the facts she said that she had seen the deceased stab John Hartwick with a black-handled knife, "...maybe twice", "...I'm not quite sure, two or three times" and that Clayton had then got involved straight away with a knife in her hand. She maintained, however, that "...I didn't want to look" and "...I walked out the other way out to the backyard and started crying."[40]

(3) Clayton said in her record of interview that she sat on the couch throughout holding a knife to Paula Rodwell while John and Lisa Hartwick ransacked the house[41]. She told of having seen the deceased flung in through the front door after a "...kerfuffle outside"[42]. She said that John and Lisa Hartwick had "dragged [the deceased] after the shit that's happened outside and like, I mean, literally flung in the door and he swung round and...[was] kicked and stuff and he falls on the ground and John and Lisa are just giving it to him, just giving it to him, giving it to him and I'm just basically saying to Paula, 'You just gotta sit here, mate, and you're just gonna have to cop it, just gonna have to cop it'"[43]...She said that "They were whacking him - they were giving him pretty good whacks... with their poles."[44] She added that "...at one stage, [the deceased] was trying to stab John from when they come inside..." but that "... He was, you know, obviously, you know, just fighting, for what was going on and he's swinging around the knife and John's got him on the ground and you know, basically, jumped on his head a couple of times, and he's - you know, he wasn't getting up, he was fucked."..."Basically, every time he moved a little bit, one of them would come up and go kick, whack, and then they just kept lookin' round the house, and I just stood there, [and] said to Paula, 'Don't move, don't move.'"[45]..."Basically, he's - I mean, I had - I knew he was hurt, but fuck, I - I had no idea that, you know, [he] was in sort of that condition, and he's - he's just lying there, sort of going, 'I'm dying, I'm dying.' And we thought, 'Oh, yeah, course ya are.'"[46]

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65 At trial John Hartwick's counsel asked for the exclusion of the reference to the deceased as a "fuckin wog cunt" on the basis that John Hartwick's use of those words might be thought to imply that he was a racist and that the jury might therefore take an unfavourable view of him. But the judge rejected the argument and the point is no longer pressed. It is now said that because the incident was isolated and removed in time from the killing, evidence of the incident should have been excluded on the basis that it was irrelevant or, if relevant, on the basis that it was so remote as to be of little probative value.

66 It may be allowed that, if the incident had stood alone, evidence of the incident would have been inadmissible or at least that it would have been appropriate to exclude the evidence in the exercise of discretion. As Barwick C.J. said in Wilson v The Queen[49] (with reference to R v Barbour [50]), evidence of quarrels which are no more than "transient ebullitions of annoyance and anger on the part of the accused which immediately passed away and led to nothing, and which did not proceed from hostility or enmity not tendered to show the existence of or to promote such feeling" may be ruled inadmissible. The fact is, however, that the incident did not stand alone, but rather in context as the beginning and informing event of an unhappy relationship which continued until the killing (as is established in the questions and answers which we have set out). In our opinion therefore the reference was admissible as part of the history of events showing the nature of the relationship between the applicant and the deceased.[51]

67 The law which applies to the admissibility of that kind of evidence is clear [52]. To adopt and adapt the words of McHugh J. in Harriman v The Queen,[53] the evidence is admissible as although revealing other criminal or prejudicial conduct it tends to prove how or why the conduct the subject of the charge arose or because it makes it more probable than not that the conduct occurred at the time or place or in the way alleged. The racist nature of the reference was unfortunate and possibly to some degree prejudicial, as too may have been the mindless profanity with which it was expressed. But it was also a powerful indication of the intensity of the event and of its continuing significance in the mind of John Hartwick at the time of the killing, and for that reason we think that it was rightly admitted.

68 We are also not persuaded that the judge was in error in refusing to exclude the reference to collecting and using cannabis. Taken among the totality of the evidence we consider that it is unlikely to have had much if any prejudicial effect. Presumably that is why senior counsel for the applicant on the appeal ultimately disclaimed reliance upon the point.

69 Ground 4 in John Hartwick's notice of appeal is that the judge erred by refusing to discharge the jury after the Crown witness Keith Canham gave evidence that the applicant:

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72 It is now submitted for John Hartwick that the evidence given in cross-examination was highly prejudicial because it demonstrated a propensity to carry the items which were used as weapons on the night of the offences. It is contended on that basis that the jury should have been discharged.

73 We agree that the evidence was prejudicial, although taken with the other evidence of what the applicant said and did on the night in question, it can hardly have added much to the prejudice. But however that may be, we do not accept that the evidence should have resulted in the discharge of the jury. It was relevant to the question of whether the applicant had available to him at the killing weapons of the kind which were alleged to be used in the killing, and consequently it was relevant to his involvement in the killing. It went also to rebut his contention that he had acted without malice, in effect as a peacemaker. It was therefore admissible despite collateral prejudice, and its probative value was such that it would have been inappropriate to exclude it in the exercise of discretion.

74 Canham's evidence as to the applicant having used poles to attack someone else was given as a non-responsive answer to one of the prosecutor's questions. It appears that no one anticipated what was coming. Counsel for John Hartwick almost immediately applied for the jury to be discharged. But the judge refused to do so. His Honour adopted the course instead of instructing the jury that the answer was non-responsive and therefore had not been subjected to testing in cross-examination and therefore that they were to ignore it.

75 We do not consider that his Honour was in error in adopting that course. The decision of the Court of Criminal Appeal in R v Knape[54] was once thought to mean that an irregular disclosure of evidence of bad character in the course of trial would result in the discharge of the jury unless the disclosure could not possibly have affected the jury's judgment. But the inflexibility of that sort of approach was rejected by the Court of Criminal Appeal in R v Boland[55] and in R v Vaitos[56] and hence, as the New South Wales Court of Criminal Appeal later observed in R v George, Harris and Hilton[57], the informing principle in Victoria as in New South Wales is one which places responsibility on the trial judge to determine in light of the nature of the trial and the extent of the prejudice caused by the disclosure whether it is necessary to discharge the jury in the interests of ensuring a fair trial. In R v Su[58], this Court reiterated that the principle is one of necessity. There must be evident a high degree of need for discharge before that course should be adopted[59]. In Crofts v The Queen[60] the High Court gave its imprimatur to that approach. The High Court said that there are no rigid rules to govern the outcome of an application for such a discharge. Each case depends among other things upon the seriousness of the occasion in the context of the contested issues, the stage at which the mishap occurs, the deliberateness of the conduct, and the likely effectiveness of a judicial direction designed to overcome its apprehended impact.

76 Canham's non-responsive answer did not give rise to a high degree of need for the discharge of the jury. As may be seen from the transcript, it was cut off quickly, and counsel swiftly moved the examination along to another point so as to minimise the effect on the minds of the jury. As has also been seen, the judge gave the jury a specific direction to disregard the evidence and an explanation as to why they should. We think the jury is likely to have accepted that explanation and to have heeded the direction. The disclosure occurred early in the trial so that it was literally weeks before the jury retired to consider their verdict. By then the chances of the jury recalling the disclosure would have been slight. Further, the authorities to which we have referred suggest that a good deal of leeway should be allowed to a trial judge in evaluating the considerations which are relevant to the fairness of the trial. That is so because the judge will usually have a better appreciation of the significance of the event complained of, when seen in context, than can be discerned from reading transcript. We see no reason to doubt that the judge did have that advantage in this case.

77 Ground 5 in John Hartwick's notice of appeal is that the judge erred in allowing evidence as to Lisa Hartwick having taken out an intervention order against him. The evidence was given by the informant in response to questions asked in cross-examination by counsel for Lisa Hartwick concerning her record of interview:

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The jury were then sent out for a cup of tea and the judge heard submissions as to whether the evidence of the restraining order was admissible and as to whether, if it were admissible, there should be an order for a separate trial for John Hartwick. His Honour upheld the objection on the basis that the document proposed to be tendered was not duly authenticated. In effect his Honour thereby also refused the application for a separate trial. Later, however, counsel for John Hartwick told the judge that he had been instructed to withdraw the objection to the tender of the document but that he wished to continue to press the application for a separate trial. At that point the judge ruled that he was not satisfied that the evidence of the intervention order so much changed matters as to warrant a separate trial.

78 It is now argued that the evidence should have been excluded. It is conceded that it may have been admissible as providing some support for Lisa Hartwick's defence (that John Hartwick had forced her to go the deceased's home on the night of the killing). But it is said that its effect upon John Hartwick was so prejudicial that the judge should have excluded it in the exercise of discretion. Alternatively, it is contended that if the evidence were not to be excluded, its prejudicial effect was enough in conjunction with the other matters already mentioned to tip the balance in favour of a separate trial.

79 But for the concession we should have doubted that the evidence of the intervention order was admissible. Strictly speaking, it proved nothing as to the way in which John Hartwick may have acted towards Lisa[61]. At most it went to show that Lisa Hartwick had at some time made an allegation sufficient to warrant the making of the order. On the other hand, assuming that the evidence was admissible, we do not consider that the judge would have been in error in refusing to exclude the evidence in the exercise of his discretion. Relevant evidence in disproof of the guilt of more than one jointly accused is not ordinarily to be excluded by reason only that it tends to prove that the other joint accused has a disposition or propensity, or is the sort of person likely to commit the crime charged[62]. It may perhaps be excluded in the exercise of discretion. But the freedom of an accused to meet the charge against him is not lightly to be restricted in that fashion[63]. It is usually better dealt with by appropriate directions; just as the judge did.

80 We are also not persuaded that the evidence of the intervention order was so prejudicial to John Hartwick as to add to the case for an order for separate trials. Its effect was equivocal. As was observed by the prosecutor in the course of argument before the judge, common experience is that intervention orders are readily obtained and often without much evidence as to the facts or any inquiry into the merits. But in any event, the evidence was so peripheral as to be entirely overshadowed by the direct admissible evidence as to what occurred shortly before and in the lead up to the killing. That evidence included Canham's testimony as to what John Hartwick had said and done as he prepared to depart for the deceased's house shortly before the killing; of how Lisa Hartwick and Clayton had armed themselves with bars and poles and knives before they departed with John Hartwick in the car for the killing; and of how, only a short time later, John Hartwick had returned apparently stabbed and supported by others before being driven by Lisa Hartwick to the hospital, as well of course as Paula Rodwell's testimony as to what occurred at the killing. In all it made for a compelling case against John Hartwick.

81 Ground 6 in John Hartwick's notice of appeal is that there was a miscarriage of justice by reason of the admission into evidence of:

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Counsel for John Hartwick submitted to the judge that the evidence was prejudicial and added to the weight of the case for a separate trial. The judge took the view that references to drugs were part of the sub-stratum and, in context, of insignificant prejudice.

84 We agree with his Honour. The point falls into much the same category as the statement in John Hartwick's record of interview that on the night of the killing he had gone to the Bi-Lo supermarket to purchase marijuana. It was part of the context or background and in terms of prejudice it was swamped by the weight of the direct evidence concerning John Hartwick's involvement in the killing.

85 The evidence of the "stand-up fight" was equally inconsequential. Canham was an amputee, confined to a wheel chair, who had to take breaks from giving evidence in order to administer pain relief. The jury knew that. Whatever the sense in which Canham used the expression "stand-up fight", it was certainly not literal. And the jury must have known that too. In those circumstances it is unrealistic to suppose that the jury might have been prejudiced or affected by knowledge of the "fight". Defence counsel did not even mention the matter to the trial judge.

86 The evidence that the applicant wanted Rodwell to set up her "sugar daddy" and rob him was given by Rodwell during a long session of cross-examination by counsel for John Hartwick. By and large the session appears to have been directed to what occurred at John Hartwick's house after Rodwell was taken back there by Lisa Hartwick and Clayton following their assault upon her at the bus shelter. Part of it seems to have been directed to establishing that Rodwell and the deceased owed John Hartwick $400. It was also suggested that the deceased had accused him of being "a dead dog" and threatened him that "you will be killed". After both topics had been explored at length, although apparently without much profit, counsel for Hartwick returned to the question of whether the $400 was owed:

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89 As is to be expected, defence counsel did not object to the evidence at trial and did not seek any direction in respect of it. The answers given went to establish hostility and the events which led to the killing, and the evidence was for that reason admissible despite its prejudicial effect. In the result we see no substance in the point that it caused the trial to miscarry.

90 The complaint about evidence of John Hartwick's theft of Lisa Hartwick's wedding rings appears misplaced. Despite several searches of the transcript, we cannot find any record of Rodwell giving evidence of that kind. And even if it is there, we cannot imagine that it would have made the slightest difference. It seems to us that it would be so peripheral alongside the direct evidence of John Hartwick's involvement in the killing as to be inconsequential.

91 We record for the sake of completeness that ground 7 in John Hartwick's notice of appeal was abandoned.

Directions on consciousness of guilt

First applicant - Ground 18

Second applicant - Ground 5

Third Applicant - Grounds 4 and 18

92 Ground 18 in John Hartwick's notice of appeal, ground 5 in Lisa Hartwick's notice of appeal and grounds 4 and 18 in Celia Clayton's notice of appeal are that the judge erred in the directions which he gave concerning lies and consciousness of guilt. In each case the directions are attacked on the basis that the judge did not sufficiently identify lies which were said to constitute evidence of consciousness of guilt. In oral argument it was also submitted that the judge had erred by leaving to the jury, as if capable of constituting evidence of consciousness of guilt, lies which were capable of going only to credit.

93 The Crown submits that the way in which the judge dealt with the matter accorded with the express request of defence counsel that his Honour not specifically identify the alleged lies and circumstances and events, and therefore that it does not now lie in the mouth of the applicants to complain about any lack of specificity in the directions which were given. The Crown further contends that the way in which the judge went about the task was in any event adequate to identify the lies and circumstances and events by referring back to or incorporating the relevant part of the prosecutor's address. The Crown also says that the question of whether any of the lies was evidence of guilt was simply a question of the jury.

94 The law upon these matters is tolerably clear:

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"What I am going to do in the course of my address to you is quote from the evidence, not very much, but quote some passages that we say are important, and for the benefit of His Honour, and my learned friends, I will give page references, but they are to the transcript, which you won't have, but it is useful that I do that from time to time.

Members of the jury, I will say this. The prosecution case is that Lisa Hartwick is lying when she said an event occurred on the front porch. The prosecution case is that you won't be assisted to find out what really happened by any of the records of interview of the accused people. We suggest to you that they [the records of interview] are demonstrable lies, each in their own way, from start to finish. And at one stage I am going to take you through the records of interview and just tell you, it will be obvious to you, I suggest, in any event , where the lies lie. You won't get any help from those records of interview if you want to find out what really happened.

But the prosecution case is this, that those records of interview told by the accused people are nevertheless very important. And why are they important from the prosecution's point of view? Just because they are lies. Substantially lies, from start to finish. Because the prosecution case is that you can use the fact of their lying as evidence of their guilt. As actual evidence of their guilt.

When a person lies in court, their lies may be used in two ways. If they lie about one thing, in the ordinary course of events as we understand human nature, human behaviour, if they lie about one thing, you can guess they are lying about something else. But lies can be used in another way, which I will explain to you in a moment, as actual evidence of guilt.

It works perhaps this way. I was trying to think of an illustration of how this principle might work, but you know the story of George Washington, how he was very honest and how he chopped down the apple tree [sic][72] and his father said, 'Did you chop down the apple tree?' And he said, 'Of course I did.' Let us imagine George Washington wasn't like that and when he chopped down the apple tree and his father said, 'Did you chop down the apple tree in the garden?', he said, 'I wasn't even in the garden that day.' And if you knew that he was, if you knew that he was lying about that you might use that, the fact that he said he wasn't even there, as demonstrating - and use it against him as demonstrating a consciousness of guilt of his own guilt that would cause him to lie. It is a simple enough principle. I think we do it in our lives every day. But it is also a legal concept. And the prosecution says that in this case, because these people can be shown to be liars, they are lying out of a consciousness of guilt, to hide, to conceal their guilt."

[173]

"Now, when we look at Lisa Hartwick's record of interview, we look at it against the background of the material from the witnesses who were there at the scene. Keith Canham, who says she was going around looking for anything heavy, the Bi-Lo shopping trolley handle, Michael's old cricket stump. Against the background of his saying she went ballistic, 'When they left, Lisa had the poles.' It's against the background of Rhonda Canham saying, 'Lisa Hartwick said they were going doing down there and fucking kill 'em....'

Now, that is the background of the evidence of the people at No. 3. Now, let us look at what Lisa Hartwick said in those records of interview, they are called, when she is telling the police what happened.

...She sets out, we suggest, members of the jury, as best she can, to distance herself from what has gone on. She starts off by saying, 'I was forced to go there, John [Hartwick] beats me up'... She is trying to distance herself. She sets out to say, 'I was forced to go.' And so she, to that extent, gets into John Hartwick. She says she doesn't like him, 'That's why I don't like' - she didn't say 'John', but it is John she is talking about - question 140 in the audio-tape record of interview, 'I don't like John 'cos he takes drugs too.' She is distancing herself from this, she is saying, 'I am really not going to be part of this. I am not there.' At question 146, 'How come you went to that particular house yesterday?' And answer, 'They made me go with them.' This is a lie[73]. It is contrary to the evidence of people who are at No. 3.

What I want to do as we go through these records of interview is to identify some particular lies. And I have told you already about - that is the relevance of the George Washington thing, about what lies mean, how lies may be used by you. She said, 'I thought we were going there to talk to them.' That is another lie[74]. That is at question 148....

...You don't take arms - you don't take Bi-Lo poles and knives if you are going to talk to people. They are going to avenge themselves. Then in that audio-tape she dobbed in, if you like, John Hartwick.

Then she goes the next step and she starts dobbing in Celia Clayton, or Kerry. 'Kerry ran out the front and went schiz.' 155. 159. 'Kerry was going schizo.' 161. 'She was angry.' To distance herself, to paint the others in the bad light. But the next lie she tells is this, 'When we got there, the door was opened. Celia Clayton, Kerry, struck Paula Rodwell on the head with a knife.' Lie[75]. Paula Rodwell wasn't struck on the head with a knife, she was struck on the head with a pole. Now, you will be thinking, why does Lisa Hartwick lie about that? Why does she say it was a knife and not a pole? Because she wants to say in the record of interview, 'I didn't know anyone went up there armed. It wasn't until Celia got there and to the door and Paula Rodwell's opened it that anything happened. It is then that I realised one of our number is armed.' If she says Celia Clayton hit her over the head with a pole, she couldn't maintain that she didn't know there were weapons at that stage. She is forced, let me suggest, members of the jury, to saying Celia Clayton has used a knife at that stage. If it were a pole, then she must have seen it, and that is not what she wants to tell the police, so she has to say it is a knife. That is a lie.

She then says at question 218, when the fight started between John Hartwick and Steven Borg, 'I didn't see 'cos I didn't want to look.' Now the Crown say that is a lie[76]. This episode in the house, we suggest to you, members of the jury, lasted for at least 30 minutes...Can it seriously be maintained that Celia Hartwick didn't look, didn't want to see what was going on? No, it can't. We say that is a lie...

...Question 228, 'But I didn't actually see, like, I only seen clothing part, you know, and I didn't see anything. I only took a glance at it.' The same lie[77], she keeps going with that lie. Question 234, another lie, 'I didn't know Celia Clayton had a knife until I got there.' Now, that has to be a lie[78]. Everyone at No. 3, in the vicinity of No. 3 has seen these people arming up....For Lisa Hartwick to say she, of all those people who is [sic] actually travelling with them in the car...didn't see a knife until that moment in the door is another lie."

[175]

"...Question 132 'Whose decision was it to go down do the house?' Not hers, she says, John and Kerry's decision. Now, again, flashback to what the witnesses say: she was as keen as anyone to get there. She denies - her next lie I want to specifically draw attention to is this - she denies in that record of interview at question 147, that she took any weapon with her. Another lie[79]. Question 149, 'Did any of the others take anything?' Answer, 'Not to my knowledge.' At question 155, 'I didn't even want to go. I jumped in the car 'cos I was told to go with them.' I have already drawn your attention to that lie[80] being told before. Again, she says at 159, 'I didn't see any metal bars, sorry.' That is a lie[81], again, how could she not see metal bars. Indeed, the trolley pole and the vacuum pole are found back at her place afterwards. She denied, another lie[82], she denied she said, 'I will fix those bastards', question 170, or words to that effect. She then, members of the jury, in her record of interview, at about question 200, around there, described John Hartwick being stabbed outside on the front porch. Her drawing of that incident can be found - her description of that incident can be found at 1458:56, if you want to see the drawing, you can pick it up if you go to about that time. You will recall she rubbed it off. Now, the prosecution says that incident did not take place. That is another lie[83]. And I have drawn your attention to why the prosecution says that...

Again, she says at 237, 'I was too scared to get involved. I had to go because they', meaning John and Kerry, 'made me.' The same lie[84]. Question 239, 'Get into the effing car', John, she said, said this, 'Get in the fucking car, and get in now.' 'If I hadn't have got in the car I would have got bashed.' She says the same thing at 246. Now, that just isn't consistent with any of the evidence that you have heard. Evidence, we suggest, you would have no reason to reject. She is lying about her involvement[85]. She was as keen as anyone to get involved.

...

At question 570, she claimed that at the end she only saw Steven Borg on the ground for a split second. 'I didn't see virtually nothing.' That is the same lie[86]. And it is demonstrably a lie, because you know that after this incident, when she went to get the car back from the Canhams, she told Rhonda Canham this, 'The person that they went down to deal with was almost dead.' Keith Canham records it this way. 'The guy down the road', her saying, 'The guy down the road was not in a good condition. They gave him a real good working over.' That is not, 'I hardly - I virtually saw nothing.'

So, members of the jury, that is how she conduct herself in that record of interview. The prosecution says there are significant lies. She claims she was forced to go[87]. She claims Celia Clayton struck Paula Rodwell with a knife on the head as the door was opened[88]. She claims she took no weapons[89]. She claims she didn't see any of the others take any weapons[90]. She claims she saw John Hartwick stabbed on the front porch[91]. She claims she didn't know Celia Clayton had a knife until she got to the door[92]. And she claims that really she didn't see anything[93]. Those are all lies that she tells in her record of interview."

[177]

"What does he do? How does he conduct himself in that video tape record of interview? Well, first of all, I suppose the first thing you notice is, he prevaricates. Doesn't understand this, 'What are you talking about this?' Beats about the bush, won't answer questions straight, and that type of thing. But please watch that for yourself and look at him.[94]

Well, what does he say? He said he did get stabbed on that Wednesday night and he was stabbed from behind. Well, that is common ground. The prosecution case is he was indeed stabbed from behind, but by one of the women as they were attempting to get at, or one or another of them was attempting to get at Steven Borg and continued that savage assault upon him. He said that he was only persuaded to go to hospital by Lisa Hartwick. He said he was wearing an old greasy pair of jeans. He said, having been initially reluctant to go to hospital, he was persuaded by Lisa Hartwick, as I have said, to go there. He said he hadn't realised he had been stabbed until he was walking home. A lie[95]. He didn't walk home from any where. He was seen to get out of the car across the road by the Canhams and go into No.3. What he did members of the jury, he - I will take - sorry, I will start again. He said he realised he had been stabbed when he was walking home from the Bi-Lo shop. A lie. That he had gone down to collect cannabis there. As I say - and he said this, he didn't go anywhere else that evening apart from the Bi-Lo store and the hospital. Another lie[96]. He was at No.37, of that you can be certain beyond any shadow of a doubt. So he tells these lies, I guess, of significance in the record of interview. His record of interview. He says, 'I didn't realise I was stabbed until I was walking home.' A lie. Because he wasn't walking home. He said, 'I had been to the Bi-Lo to collect cannabis, I hadn't been anywhere else.' Another lie...

...

But then he cuts it off, members of the jury, in this way. Question 530, right at the end of his video-tape record of interview, he says this, 'I believe that you have got the wrong people concerned on this evening' - that at Steven Borg's. A lie. 'I believe you have got the wrong people.' The police certainly had the right people. 'I did not murder - he OD'd - Paula's bashed him herself or whatever.' Again demonstrating his animus, his intense dislike of Paula Rodwell and Steven Borg**. So another lie**. Thus, members of the jury, he lies in those ways throughout his record of interview and, by inference, by implication, he denies going to No.37. He got stabbed walking home, or at the Bi-Lo store nearby. And he didn't go anywhere else that evening...

...

So he tells those lies in the record of interview, and he says to the police, finally, if you like, the biggest lie, 'You have got the wrong people, it is not us.' And, of course, it was them."[97]

[179]

"I want to now look at Celia Clayton's record of interview and see how she deals with these issues. Now, remember, this is against the background of her being armed with a knife that everyone sees when she leaves and her saying, being overheard to say, as she is making, or just about the time she makes those stabbing motions with the knife that the Canhams describe, 'I'm going to cut that bastard's throat.' Now, the first thing I want to say about her record of interview is this. At no stage in it does she describe this supposed incident on the front porch. It is not in her record of interview at all. Well, what does she say? She describes the incident at the bus stop, question 100, 'Lisa got it over her. They had a bit of a scrap on the ground, it went for about 20 minutes.' Then she described the incident with the smashing of the car and Lisa Hartwick rushing in saying, 'Your car's fucked.' She then described at question 106 people making phone calls, 'Let's make phone calls and get people down here. Sort of repercussion stuff.' She knows that there is - after the cars are smashed, this is about revenge, this is about repercussions. This is not about going down to reason, this is about going down to punish. To seek revenge. She says this. Question 110, she went down to Fingal Drive to have a few bongs, when she got the hurry up from Lisa Hartwick. She said, when she got back to No.3, John Hartwick and Lisa Hartwick were already in the car. Well, she didn't go down to Fingal Drive to have a few bongs, members of the jury, she went down there to get a knife. She comes back brandishing a knife. That is a lie[98].

...

Now, she tells another lie, question 131[99]. 'At the front door, John Hartwick or Lisa Hartwick whacked her.' See, she is doing what Lisa Hartwick's doing. She is shifting the blame from herself, saying, 'Look, I am only there at the very fringe of all of this. The real players in this are the others.' It is like that billy goat gruff story, isn't it? You know, 'Don't eat me, there will a big fat juicy one coming on a bit later.' It was she, members of the jury, who struck Paula Rodwell with the pole. But she says at question 132, 'But Lisa's gone behind him (sic) and gone 'whop' and it has just split, her head's gone crack.' Question 134, well, Paula Rodwell was on the ground, I walked up to her, and I stick the pole on her neck and I tell her, 'Don't you fucking move, cunt, or you don't move.' Question 135, she said she then said, she asked John Hartwick for the knife, and held it to her throat on the couch, while the other two searched the house for something specific. And she said that they ransacked the house. She said that while John Hartwick, this is 145, and it is a lie as well, while John Hartwick and Lisa Hartwick are 'just giving it to him', all she does is hold Paula Rodwell on the couch with the knife at her throat[100].

That record of interview is lies, where she downplays. 'Look, just going along with the other, I didn't really know.' But then, when it comes down it, even on her own story, she knew some shit was going to happen, what's happened, you know, would be a bit heavy and Lisa and John, 'Have to do a bit of business.' You know what the business was.

Even on her own account she admits she has gone there armed, she know the others are armed with poles and knives, she knew some shit was going to happen, that John and Lisa would have to do a bit of business, and that she was a watch - she was there for a watch-out really when it comes down [to] it. ...even on that lying account she give, she puts herself in.

...I have concentrated a lot, I know, on lies and I have explained the significance of lies to you. No.1, if somebody lies, you don't believe them. They don't have any credit. If they lie about one thing, they will lie about another thing. But No. 2, the lies that are told here by each of the accused go right to the heart of the very issue. Right to the heart of the very matter. They are actual evidence of their guilt, in our submission to you. If you are satisfied that they lied out of a consciousness of guilt to avoid detection, to throw the blame on to somebody else, to minimise their part in the crime, or to say they weren't even there, those lies are told, members of the jury, as part of a consciousness of guilt. They have lied because that person who told those lies was guilty. They have lied to hide, to conceal their guilt."

[182]

104 His Honour thereafter gave the jury a full Edwards direction, in which he explained in detail the concept of consciousness of guilt; the matters of which the jury would have to be satisfied before they might treat a lie as evidence of consciousness of guilt; the possibility that people may lie for all sorts of reasons; and the danger of concluding guilt and then using that conclusion in order to determine that a statement was a lie and thus further evidence of consciousness of guilt. His Honour did not, however, otherwise identify the alleged lies, or further refer to the circumstances and events said to indicate that the alleged lies constituted admissions against interest, and it is those aspects of the charge which are the subject of complaint.

105 It is ironic, as the Crown points out, that the judge's directions on lies corresponded exactly with defence counsel's request that his Honour not further identify the lies, and it is now the absence of such further identification which is alleged to be indicative of error. But we are constrained by authority to treat the request of defence counsel as irrelevant. As has already been stated, the law is that a trial judge has no authority to dispense with the directions that the law requires be given in a criminal trial and, if the failure to give a direction required by law may have resulted in the conviction of the accused person, the trial has not been conducted according to law and the conviction constitutes a miscarriage of justice. Speaking generally, it is no answer that such directions as were in fact given may give the accused a better chance of acquittal than the directions that the law requires. An accused is entitled to be tried according to law and if a failure to give a required direction may have brought about the accused's conviction, there is a miscarriage of justice.

106 In this case, however, we are not satisfied that the judge's identification of the lies fell short of what the law required. As has been seen, the prosecutor went through each record of interview at length and precisely identified each lie on which the Crown placed particular emphasis as individually and in aggregate bespeaking consciousness of guilt. The jury had copies of each record of interview in front of them as the prosecutor undertook that exercise, and they took those documents with them into the jury room. As has been seen, they also had audio tapes of each interview and in two cases a video tape as well. And as the judge observed in the course of the charge, members of the jury noted the identified lies as the prosecutor explained them. In the result, in our opinion, there can have been no doubt in the minds of the jury as to the alleged lies in issue.

107 It is true, as the applicants contend, that there was a gap in time of almost two weeks between the prosecutor addressing the jury on the subject of lies, on 14 and 15 November 2002, and the stage where the judge reached that part of the charge which was directed to lies, on 27 November 2002. Other things being equal it would have been essential for the judge to go through each of the lies again and remind the jury of them. But in this case things were different. As we have noticed, the only lies relied upon as evidencing consciousness of guilt were all recorded in the records of interview, members of the jury had noted those as the lies were identified by the prosecutor, and the jury had their copies of the records of interview with them in the jury room. By referring to the lies in terms of those identified by the prosecutor and noted by the jury, the judge was in effect achieving the same result as would have been achieved by adopting the more usual course of handing to the jury a list of the lies.

108 We also reject the applicants' contention that the judge erred by leaving to the jury as capable of evidencing consciousness of guilt lies which were capable of going only to credit.

109 In the case of the lies said to have been told by Lisa Hartwick.

[188]

Lie no. L7 was also capable of constituting evidence of consciousness of guilt, and it is apparent that the circumstances and events relied upon were that the people at no. 3 had seen the applicants arming up with poles and the like before getting into the car to depart for the deceased's house.

Lie no. L8 was the same as lies nos. L1 and L2 and there is no reason to doubt that the jury would have taken it as such.

Lie no. L9 was the same as lie no. L7.

Lie no. L10 went squarely to intent and in our view it required no further explanation than was given in order for the jury to understand why it was said to be a lie.

Lie no. L11 is a little different. The applicant did not say anything about stabbings in answer to Question 200. She said that she was standing at the front door when Celia Clayton struck Paula Rodwell to the head. And there does not seem to be any dispute about that. In answer to Question 215, she said that the deceased stabbed John Hartwick on the front porch just outside the front door, and that may have been correct. Paula Rodwell's evidence was that the first contact between the two men was just inside the front door and, although DNA evidence suggested that the first blood fell inside the front door, there was nothing in that to say one way or another whether the blow was struck just inside or just outside the door. Moreover, as in Edwards, the possibility of innocent explanation (of telling the lie to spare John Hartwick from blame) was a plausible explanation of the lie. But none of those things was enough in itself or in combination to deprive the alleged lie of capacity to evidence consciousness of guilt. As we see it, they were considerations for the jury to take into account in deciding whether they should treat the lie as evidence of guilt and, as has been seen, the jury were given adequate instructions on how to go about that assessment.

Lies nos. L12 and L13 repeated lies nos. L1, L2 and L8 and again there is no reason to doubt that they would have been so understood by the jury.

Lie no. L14 is very similar to Lie L4 and so it too appears to us to have been capable of evidencing consciousness of guilt. It was another lie about the applicant's complicity in the acts of the others. The prosecutor may not have described it as such in terms, but that was the clear implication of what he had earlier said about lies from start to finish.

For the reasons we have given with respect to lies L3, L4, L5, L6, L7, L9, and L11 we also think that restated lies nos. L2, L5, L6 or L7 were capable of constituting evidence of consciousness of guilt.

[198]

112 It follows that we are not satisfied that the judge erred in the directions which he gave as to consciousness of guilt and that ground 18 in John Hartwick's notice of appeal, ground 5 in Lisa Hartwick's notice of appeal and grounds 4 and 18 in Celia Clayton's notice of appeal all fail.

113 That said, however, we wish to add for future reference that the way in which his Honour went about formulating his directions on consciousness of guilt in this case will seldom be an appropriate method to follow. Despite our conclusion that his Honour's directions were adequate, it would have been preferable if his Honour had specifically identified each of the lies relied upon as establishing evidence of consciousness of guilt and the facts and circumstances said to demonstrate why they were lies and why they were evidence of consciousness of guilt. That is the course which is ordinarily to be adopted, regardless of defence requests or submissions to the contrary, and it should be borne steadily in mind that any other course runs the risk of a miscarriage of justice and thus a retrial. So long as the law remains that a trial judge has no authority to dispense with the directions that the law requires be given in a criminal trial, it must remain so. Our decision in this case is based on the particular circumstances of the case, and they are unlikely to be repeated.

Intentionally causing serious injury by extended common purpose - Count 2

First applicant - Ground 12(a)

Second applicant - Ground 1(b)

114 We now turn to consider the applicants' claim that his Honour failed to charge the jury properly in relation to the Crown case on count 2 based on extended common purpose. More particularly, it was said that his Honour omitted to direct the jury that, in order to make out its case against the applicants of causing serious injury to Rodwell by extended common purpose, the Crown was required to establish, to the requisite standard, that the accessory charged foresaw as a reasonable possibility that a co-offender might intentionally commit that offence in the course of carrying out the parties' agreement or understanding to assault her. That such a direction should have been given is, we think, common ground between the parties. It seems plain enough, for the reasons discussed during our consideration of the operation of the principle of extended common purpose in the context of count 1, that if his Honour's charge on this aspect of the Crown case on count 2 had the shortcoming contended for by the applicants, it would be fatally flawed and the convictions on that count would have to be set aside. Consequently we turn to examine the relevant aspects of his Honour's charge on count 2.

115 It is convenient to refer first to the applicable terms of DPP 22 which, as has been noted earlier,[105] are contained in the second part of the document. More specifically the relevant directions are set out under the principal heading "Count 2 - Intentionally causing serious injury". The directions in Part 1 under that heading can be put to one side for present purposes because they are premised on Clayton having assaulted Rodwell. Part 2, however, deals with the situation where "an [unnamed] accused assaulted ... Rodwell". Insofar as is relevant, Part 2 is in the following terms.

[205]

116 Mr Hillman accepted that the latter passage does not, specifically, contain any reference to the requirement that relevant foreseeability by the accessory must incorporate foresight of the intention on the part of the principal perpetrator to cause the serious injury. He submitted, however, that a fair reading of the whole of his Honour's charge makes it apparent that the judge sufficiently conveyed that requirement to the jury. In support of that submission, counsel first referred to the above paragraph 2(a) which explains the elements of the offence of intentionally causing serious injury (about which the applicants made no complaint). Mr. Hillman highlighted, however, that, in his charge, his Honour told the jury that this part of DPP 22 "follows the logic of the other document ...". This explanation, said counsel, would have been understood by the jury to mean that, just as the Crown case on count 1, which was based on extended common purpose, involved, as a necessary element of the offence, foreseeability on the part of the accessory of the relevant intention of the principal offender, so, too, its case on count 2, which was based on the same aspect of complicity, had as an essential element of it like foresight by the accessory.

117 In this regard, Mr Hillman reasoned as follows. First, he said, it would have been apparent to the jury that the "other document" to which his Honour referred in the above passage was that part of DPP 22 which dealt with the elements of murder and manslaughter by complicity. Next, said counsel, the jury would have been aware by reason of his Honour's charge, in particular his example involving the fishermen and the terms of paragraph 2(a)[106] of "the other document", that an element of the crime of murder by extended common purpose was foreseeability by the accessory of the relevant intention on the part of the primary offender. Mr Hillman then argued that, in those circumstances, his Honour's direction that the aide memoire which dealt with count 2 followed "the logic of the other document" would have made it apparent to the jury that the relevant elements of the offence charged by count 2 corresponded with those applicable to murder based on the same aspect of complicity and thus, included foreseeability on the part of the accessory of the intention by the principal offender to cause serious injury to Rodwell in the course of the agreed assault on her.

118 In our view, attractive though this argument might at first seem, and accepting that his Honour's reference to the "other document" would have been understood by the jury as a reference to the earlier part of DPP 22, it overlooks the fact that, unlike his Honour's charge on murder by extended common purpose - where the jury were told that they must be satisfied that the accessory foresaw the "crime" of murder and, by inference, every element of it, including intention on the part of the principal offender to kill or to cause serious injury to the victim - in the case of the impugned charge relating to count 2, no such explanation was given by his Honour from which the inference for which Mr Hillman contended could be drawn. In the circumstances, we think that the jury could have sensibly understood the judge's relevant instruction as meaning only that the presently impugned part of DPP 22 had the same structure as that applicable to the earlier part of the document; in other words, it set out the essential elements of the offence charged by count 2. And, as we have already noted, the written direction as to foreseeability in the above paragraph 2(b)[107] is confined to that of Rodwell being seriously injured as a result of the agreed assault on her. Nothing was said in that document, or by his Honour in the oral charge, that was likely to have imparted to the jury that foreseeability of an intentional infliction of serious injury by a co-offender was an essential element of the offence in question based on extended common purpose. The fact that the words we emphasised in the above paragraph 2(b) of DPP 22 deal only with foreseeability of serious injury resulting from the assault would, we think, have steered the jury away from treating the requirement of foreseeability as encompassing the possibility of a co-offender intentionally causing serious injury to Rodwell. In the circumstances, we consider that there was a material deficiency in the charge on count 2.

119 Accordingly, we consider that his Honour's charge on the Crown's case on count 2 by reference to extended common purpose was, with respect, materially deficient and that, as a result, the applicants were deprived of a fair trial on that count. Thus, we uphold grounds 1(b) (of Lisa Hartwick), 12(a) (of John Hartwick) and 11 (of Clayton) and propose to order that the convictions on count 2 be set aside.

Provocation

First applicant - Ground 13

Second applicant - Ground 4

Third applicant - Ground 13

120 At trial, no counsel asked for provocation to be left to the jury. The issue was mentioned by counsel for John Hartwick and counsel for Clayton, but was not pursued. No exception was taken by counsel to the judge's charge in any respect relevant to a defence of provocation. In the appeal, however, counsel for each party claimed that the trial judge erred in failing to leave the defence of provocation to the jury in relation to count 1. Reliance was placed on the proposition that a trial judge is obliged to leave to the jury the defence of provocation if it is open on the evidence, even if the defence of provocation has not been raised or has even been disavowed by the defence.[108] The question for this Court becomes whether there was evidence which might reasonably have led the jury to return a verdict of manslaughter on count 1 based on provocation. For this purpose it is necessary for the Court to take the version of events most favourable to the accused. Counsel argued that on such a basis it would have been open to the jury to infer that the applicants may have killed the deceased in the heat of passion and that an ordinary person of self-control might have lost self-control to the point of forming an intention to kill or do really serious physical injury.

121 The evidence relied on by Mr Tehan as providing a foundation for a provocation defence was as follows. Earlier in the evening, a car had been deliberately driven into a car rented by Clayton, which was parked in the driveway of 3 Karingal Drive, Frankston, pushing that car into another car owned by John Hartwick, which in turn crashed into the front wall of Lisa Hartwick's house. The car in question had been driven by the deceased. John Hartwick had a reasonable basis for believing that the deceased and/or Rodwell were responsible for the ramming incident, given that Lisa Hartwick and Clayton had been involved in an argument or fight with Rodwell beforehand, and John Hartwick had been present at 3 Karingal Drive when the three women returned there. There was evidence that Lisa Hartwick "went ballistic" on discovering that her hire car was damaged. Clayton also "went ballistic" and "wanted blood". John Hartwick was said himself to be furious about what had happened to his car and had taken off "like a dragster after a ute". The three co-accused were aware that Rhonda Canham had called the police. However, John Hartwick had driven with his co-accused to Rodwell's house, with the intention of confronting the deceased and/or Rodwell in relation to the car-ramming incident. Mr Tehan argued that one version of the evidence was that John Hartwick did not participate in the assault then which was then made on Rodwell, but rather discouraged his co-accused from assaulting her and tried to calm down the situation. He put it that the alleged assault on Rodwell on entry to the house could not have been of the magnitude claimed by her given the medical evidence of her injuries. The evidence of Rodwell was that John Hartwick then went outside the house to look for the deceased once or possibly twice, he then being unarmed. When John Hartwick was outside the front door the deceased returned and without warning stabbed him twice. He put it that John Hartwick on this version only lost control and attacked the deceased as a result of being stabbed by him, after which the deceased sustained a severe beating. Accordingly, so the argument ran, the inference open to the jury that John Hartwick had been stabbed twice by the deceased was critical. Given the proximate deliberate ramming of the cars, it was submitted that there was a sufficient foundation for provocation to have been left. It was also argued that if there was a basis for provocation in the trials of either of the co-accused, even if the basis for leaving provocation was different, the failure to leave the defence to the jury had resulted in a miscarriage of justice in John Hartwick's trial, because of his potential liability as an aider or abettor. It was argued therefore that the jury could have accepted the possibility of provocation in his case and error had been established.

122 Mr Croucher for Lisa Hartwick relied on the fact that there had been a very recent history of animosity between his client and Rodwell, who was the partner of the deceased. There had been an argument and scuffle between them at a bus stop on the day of the deceased's death. After the deceased deliberately smashed his car into the cars of John Hartwick and Clayton, causing one of them to damage Lisa Hartwick's home, there was evidence that Lisa Hartwick and her co-accused were extremely angry as a result and believed that Paula Rodwell and the deceased were responsible. Their anger, it was to be inferred, was all the greater, because they believed the issue with Rodwell had been sorted out with her by apologies from Lisa Hartwick and her husband. Such was their anger, so it was said, that they left 30 minutes later for the deceased's premises threatening harm and carrying weapons despite knowing that the neighbours had seen and heard them in that state and had rung the police. There was evidence that once the three applicants arrived at Rodwell's house they banged loudly on the door and that immediately upon opening the door, Rodwell was struck on the head by Clayton and wounded. There was evidence that the three applicants rifled through the house, apparently seeking compensation for the property damage caused by the deceased. Mr Croucher claimed that the deceased at some point appeared with a knife and stabbed John Hartwick from behind. The deceased and John Hartwick then fought, and Clayton, who had a knife, joined in. In consequence the deceased was severely beaten and suffered a number of cuts and other incised injuries from a knife or knives, in the course of which he was fatally stabbed in the chest.

123 From this evidence, Mr Croucher also argued that it was open to infer that either John Hartwick or Clayton, enraged by the earlier behaviour of the deceased, lost control when John Hartwick was stabbed and then assaulted and stabbed the deceased with the intention of causing really serious injury whilst they were still lacking self-control. He also argued, like Mr Tehan, that the stabbing of John Hartwick by the deceased from behind, when set against the background of the extreme anger provoked by the latter's conduct in deliberately ramming the cars, could have been enough in the jury's mind for either Hartwick or Clayton to meet the objective test of provocation.

124 Mr Boyce for Clayton made like submissions. He relied on the evidence that Clayton had become worried and upset about the damage to the hire car, spoke about the cost of insurance, and became angry, anxious and annoyed, indeed "ballistic" and "berserk" (according to Keith Canham), and complaining more than the other co-accused because of the damage to the hire car. The evidence of Canham had been that the scene of the accident was chaotic and one of panic, and that there was pandemonium. There was much yelling and swearing from all three. In her agitated state, so Mr Boyce's argument ran, Clayton armed herself with a knife and left with the others to go to 3 Karingal Drive. On entering these premises she immediately struck Rodwell and as soon as she heard the deceased enter the premises through the front door, ran to the front door to join in the attack upon him of her own volition.

125 In response Mr Hillman submitted that provocation as a possible defence to murder did not arise at all on the evidence. He argued that it was significant that the issue had not been raised at trial by defence counsel, all of whom were experienced criminal lawyers. Indeed, this issue had not been raised at all as a ground in respect to which leave to appeal was sought until almost two years after the completion of the trial. He submitted that there was evidence that each of the applicants was angry about the events that had occurred on the day of the killing. An assessment of the gravity of the conduct said to constitute provocation had to be made by reference to the relevant characteristics of each applicant. Despite the history of hostility between the deceased and some of the applicants, Mr Hillman submitted that no jury could have found that the provocation here was of such gravity that it would cause an ordinary person to lose self-control and act in the manner which encompassed the applicants' actions.

126 In Masciantonio v. The Queen[109], four members of the High Court said -

[206]

"Homicide, which would otherwise be murder, is reduced to manslaughter if the accused causes death whilst acting under provocation. The provocation must be such that it is capable of causing an ordinary person to lose self-control and to act in the way in which the accused did. The provocation must actually cause the accused to lose self-control and the accused must act whilst deprived of self-control before he has had the opportunity to regain his composure.

It follows that the accused must form an intention to kill or to do grievous bodily harm (putting recklessness to one side) before any question of provocation arises. Provocation only operates to reduce what would otherwise be murder to manslaughter. Since the provocation must be such as could cause an ordinary person to lose self-control and act in a manner which would encompass the accused's actions, it must be such as could cause an ordinary person to form an intention to inflict grievous bodily harm or even death.

The test involving the hypothetical ordinary person is an objective test which lays down the minimum standard of self-control required by the law. Since it is an objective test, the characteristics of the ordinary person are merely those of a person with ordinary powers of self-control. They are not the characteristics of the accused, although when it is appropriate to do so because of the accused's immaturity, the ordinary person may be taken to be of the accused's age.

However, the gravity of the conduct said to constitute the provocation must be assessed by reference to relevant characteristics of the accused. Conduct which might not be insulting or hurtful to one person might be extremely so to another because of that person's age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history. But provocation must be put into context and it is only by having regard to the attributes or characteristics of the accused that this can be done. But having assessed the gravity of the provocation in this way, it is then necessary to ask the question whether provocation of that degree of gravity could cause an ordinary person to lose self-control and act in a manner which would encompass the accused's actions."

[207]

127 In the present case there can be no doubt that the deceased's conduct in ramming his car into the rear of the cars at the applicant's premises was very "provocative". But insofar as its relevance to the question of provocation was concerned, the defence had to pass a number of barriers. The behaviour of the deceased, for the purposes of the objective test, had to be such as could cause an ordinary person to form an intention to inflict grievous bodily harm or even death, that is, to be such as to cause an ordinary person to lose self-control and act in a manner that would encompass the accused's actions. Secondly, the provocation must actually have caused the accused to lose self-control. And thirdly, the accused must have acted whilst deprived of self-control, before they had had the opportunity to regain their composure.

128 The driving of the deceased, as we have already said, led to a situation of pandemonium at the co-accuseds' house. All three applicants were understandably very angry and agitated. They were heard to yell about taking revenge against the deceased, and were heard to utter a number of angry threats about taking revenge. Then, over the course of half an hour or so after the incident, they proceeded to collect various weapons, metal poles and pieces of wood from around the property. Lisa Hartwick had collected three poles, including a galvanised water pipe and a wooden cricket stump. Clayton returned carrying a large carving knife. Having armed themselves, all three applicants drove to 37 Karingal Drive where they banged on the front door demanding to be let in, yelling words to the effect "We're going to get you".

129 Insofar as the behaviour of the deceased in ramming his car is relied upon as provocative conduct, it immediately fails the first of the tests set out above from Masciantonio. We do not accept that an ordinary person, greatly angered though such a person might be, could lose self-control and act in the way that the three applicants did. Furthermore on all the evidence the applicants did not leave for 3 Karingal Drive for approximately half an hour. In that time, as we have said, the three accused collected weapons. It would not have been reasonably open for the jury to have been left with a doubt that the accused were still deprived of self-control before they left for 3 Karingal Drive. On all the evidence it was perfectly clear that, half an hour after the provocative incident, the three applicants left, armed, to take revenge on the deceased and Rodwell. Not only could it not be said that the applicants acted whilst deprived of self-control, before they had had the opportunity to regain composure, but their retaliation was completely disproportionate to the provocative incident.

130 Counsel then relied on the assertion that provocation could have been found in the deceased attacking and twice stabbing John Hartwick after the three applicants broke into the deceased's house. On this version of the events, the three applicants had descended, armed, upon the deceased and Rodwell in their home for the purpose of taking revenge and exacting compensation in the course of which the deceased was said to have stabbed John Hartwick. But the only possible interpretation of the behaviour of the deceased, if the jury were left in any doubt that he acted in this way, was that the deceased was attempting to defend himself and Rodwell from the armed and violent assault by the three applicants upon Rodwell and himself. Insofar as the deceased's behaviour in allegedly stabbing John Hartwick may be relied on as provocation by the applicants, any such provocation was, we think, self-induced.[110] As Crockett, J. said in R. v. Allwood[111] -

[211]

132 None of the grounds related to provocation has been made good.

Refusal of separate trials

First applicant - Grounds 1 and 2

Third applicant - Grounds 2, 3 and 15

133 By grounds 1 and 2, John Hartwick claimed that the judge erred by failing to order that he be tried separately from his co-accused. Application for a separate trial of John Hartwick was made at the outset of the first trial. The grounds argued in support of the application included that statements of the co-accused in their respective records of interview strongly implicated Hartwick in the offences, whereas he in his record of interview did not touch upon these matters. Clayton in her interview had said that Hartwick had a knife, hit Paula Rodwell and was "whacking" the deceased with a pole and jumping on his head. Lisa Hartwick in her interview said that it was the decision of John Hartwick and Clayton to go to the deceased's house and that John Hartwick forced her to go there "otherwise [she] would have got bashed". She said that Hartwick beat her during their marriage. She said that Hartwick and Clayton had given instructions to wash knives after the event and that he had previous dealings with the deceased concerning drugs. There were also statements in evidence by the Canhams which implicated John Hartwick, in particular Keith Canham said that Lisa Hartwick said that Hartwick "had stabbed a bloke". There were parts of records of interview of Lisa Hartwick and Clayton which, it was claimed, tended to buttress Rodwell's version of what occurred in the flat. It was argued that there were three accounts, those of the two co-accused and Rodwell, as to what occurred and in each of these accounts John Hartwick was said to have played a leading role whereas he had himself given no such account. In consequence it was said that as a result of all the above Hartwick would be forced to give evidence and have his extensive criminal history admitted through cross-examination by counsel for the co-accused. In fact, Hartwick did not ultimately give evidence.

134 The judge ruled on John Hartwick's application for a separate trial at an early point in the first trial. His Honour applied the principles set out in R. v. Gibb and McKenzie[113] where the Full Court had said -

[215]

135 The judge then in his ruling dealt with the evidence relied on by Hartwick's counsel in seeking separate trials. As his Honour noted, in a case like the present there is a strong prima facie case against separate trials. His Honour was satisfied that there would be real additional time and expense involved in conducting separate trials, and the possibility of inconsistent verdicts. A large number of witnesses were to be called. Hartwick's counsel had submitted that a joint trial would expose his client to serious unfair prejudice which could not be sufficiently addressed by appropriate directions to the jury about the use of evidence. Ultimately his Honour accepted that Hartwick would suffer disadvantages if the matter proceeded as a joint trial, but was not persuaded that these disadvantages created such a situation of prejudice to Hartwick that the prima facie rule should not apply.

136 In this Court Mr Tehan argued that a separate trial should be ordered when the applicant can show a real risk of positive injustice were he to be tried jointly, and that that risk of positive injustice might arise from any of the following factors all of which were said to be present in this case. He argued that the evidence against John Hartwick was significantly different from the evidence admissible against the co-accused. The evidence against the co-accused contained material highly prejudicial to Hartwick although not admissible against him. There was, it was submitted, a real risk that the weaker Crown case against John Hartwick would be made immeasurably stronger by reason of the inadmissible prejudicial material. It was submitted that that prejudice was not of a kind amenable to nullification by judicial direction. The evidence that was said to be so prejudicial that no judicial direction could remedy it included statements by both co-accused alleging that the applicant played an active part in the offences, the statement by Keith Canham that Lisa Hartwick had said that John Hartwick "stabbed a bloke", and statements by Lisa Hartwick that Hartwick had been violent towards her and forced her to go to the deceased's premises. It followed that the Crown case was that Hartwick, far from being a peacemaker, as he claimed, was the controlling influence of the events on the night of the offences. It was also submitted that because Paula Rodwell's evidence was in part confirmed by statements of the co-accused in their records of interview, the jury would give her evidence unfair weight insofar as it concerned Hartwick.

137 Counsel for John Hartwick had repeated the application for a separate trial on numerous occasions. During the trial evidence was given to the effect that Hartwick had a previous hostile altercation with the deceased and had tried to run him over on the day of the offences, collected and used drugs in the past and on the night of the offences, was wont to carry knives and poles in his car, had used poles to attack a person in the past, had been previously violent towards Keith Canham, had beaten his wife during their marriage and had a propensity to steal. Mr Tehan argued that the combined force of these matters which occurred during the course of the joint trial had led to a miscarriage of justice occurring in consequence of that joint trial even though at the outset the judge might have been correct in not ordering separate trials. Accordingly it was submitted that the Court should find that the joint trial had so prejudiced the applicant that there had been a miscarriage of justice.

138 In his argument to this Court Mr Tehan submitted that there were at least two significant ways in which the records of interview of the co-accused and the evidence given by Rodwell had been bolstered in consequence of a joint trial being added. First, a critical question was whether Hartwick had been armed. Rodwell had said in evidence that all the accused had a knife and a bar, evidence from which he submitted she had moved from time to time. Both Clayton and Lisa Hartwick had answered questions in such a way during their records of interview as to suggest that John Hartwick was armed with a carving knife. The question whether Hartwick was armed or not was a very significant one and the evidence of Rodwell was supported by the records of interview of the co-accused.

139 Secondly, a major question, so Mr Tehan submitted, was whether John Hartwick played a leading role in the attack on the deceased. Rodwell's evidence had been that John Hartwick indeed had played a leading role, saying when the deceased first appeared that "fucking oath, I'm going to kill you". This evidence was allegedly supported both by Clayton and Lisa Hartwick in their records of interview. Accordingly, Mr Tehan submitted that the judge had been wrong to find that the credit of the chief Crown witness was not bolstered by the evidence of the co-accused in their records of interview.

140 Thirdly, the co-accused had given detailed accounts of the deceased's house and the circumstances surrounding the attack on him in their records of interview, whereas Hartwick himself had given no such account. The result was much pressure had been placed on Hartwick to give evidence on oath during the trial. In consequence of a joint trial being had, the likelihood was that his prior convictions would have been cross-examined into evidence. As to these, he had extensive convictions for armed robbery and many dishonesty offences which would inevitably have been revealed to the jury. Had he been granted a separate trial he would have been able to avoid giving sworn evidence if tried on his own.

141 Next it was claimed that in the records of interview of the co-accused, evidence had been included of Hartwick's bad character. Furthermore, Lisa Hartwick had said that she was forced to go down to the deceased's house by Hartwick and that she had been directed by him after the event to wash the knives that were used.

142 Accordingly, so it was said, much supporting evidence had been introduced of Hartwick being armed and taking a leading role from the records of interview of the co-accused. The directions given to the jury were, it was said, quite insufficient to prevent a miscarriage of justice arising from the joint trial of the three accused.

143 Under grounds 2 and 15, Mr Boyce for Clayton argued that the judge erred in the exercise of his discretion in failing to order a separate trial for this applicant also, and that as a result of the course of events which developed during the trial, a miscarriage of justice was caused by virtue of Clayton also not being granted a separate trial.

144 In his opening address to the jury counsel for John Hartwick had argued that Clayton must have been the person responsible for the death of the deceased. Reliance was placed on evidence given by one Macko. Macko gave no admissible evidence against John Hartwick, or, for that matter against Clayton. At an earlier time, Macko was alleged to have said to police that Clayton had told him that she had stabbed the deceased in the neck. Both at committal and at trial, Macko said that this was not true and that the applicant had never said such a thing to him. These statements resulted in Clayton's counsel formally applying for a separate trial, relying on the prejudicial statements contained in Lisa Hartwick's record of interview, and John Hartwick's counsel's cross-examination of Macko. The judge ruled against the separate trial application.

145 Mr Boyce accepted that accused persons jointly charged with having committed one offence should ordinarily be tried together. He also accepted that the fact that one accused may seek to implicate another during the course of a trial is not a sufficient ground for granting separate trials. He argued however that the trial judge's discretion to order a separate trial ought be exercised in order to preserve an accused's right to fair trial and that the basic question for the judge was whether the prejudicial effect of any admissible evidence could be neutralised by appropriate instruction to the jury. Mr Boyce argued that although the judge may have made no error in failing to grant a separate trial, it was apparent with the benefit of hindsight that a miscarriage had arisen by virtue of there having been a joint trial, in particular because of the evidence obtained through the record of interview of Lisa Hartwick accusing Clayton of being the "stabber", and because of the attempt by counsel for John Hartwick to establish in the mind of the jury that there was some truth in Macko's mistaken statement to police that he had been told by Clayton that she had stabbed the deceased in the neck.

146 Mr Boyce accepted that the judge had "warned the jury independently about the misuse of each independent evidential source of counsel's attack". The judge had warned the jury against misusing counsel's cross-examination of Macko and his invitation to speculate, and had also warned the jury several times against using material in a co-accused's record of interview against the applicant. It was submitted nonetheless that the combined power of these events was potentially devastating and that the prejudice sustained could only have been further enhanced when there was thrown in evidence given by a witness, Gower, of his observations of Clayton earlier on the evening of the death of the deceased, saying that she was then in an aggressive state. All this was said to lead to Clayton not having received a fair trial.

147 In response, Mr Hillman relied on the prima facie rule that persons charged jointly with one offence should be tried together, subject to the question of prejudice. He argued that in exercising his discretion the judge took into account and gave sufficient weight to all the relevant factors. His Honour took into account the circumstance that the Crown would rely on the evidence of Rodwell and of the admissions by the co-accused not admissible against John Hartwick. His Honour had taken the view that the situation was not one where it could be said that the inadmissible evidence against John Hartwick bolstered the credit of the chief Crown witness in any general or blanket way. The Crown submission was that it was wrong to suggest that the evidence of Rodwell had been bolstered by the records of interview of the co-accused, rather their statements had in fact disputed Rodwell's account in a number of significant areas. His Honour had taken the view that it was possible to explain the case against each of the co-accused with clear definition, separating the evidence admissible against each applicant from that which would be classified as inadmissible against another being a straightforward exercise and capable of being understood by a jury with the necessary directions. Such directions, Mr Hillman submitted, had been repeatedly given by the judge during the trial. Accordingly, he argued, the judge had correctly applied the relevant test at the outset of the trial. Insofar as it was argued that prejudice arose during the course of the trial, the additional matters included evidence regarding an intervention order being taken out by Lisa Hartwick against John Hartwick and evidence of the supposed bad character of John Hartwick. As to these matters it was plain that the judge was not satisfied that counsel for John Hartwick had established the necessary real risk of prejudice to warrant the grant of separate trials. Furthermore, the judge had given appropriate directions at length in his charge as to separate consideration of the case against each applicant. Accordingly it was submitted that this could not be classified as one of those rare cases in which, although the trial had been correctly conducted, the result had been to expose John Hartwick to a conviction influenced by material that was both highly prejudicial and inadmissible, leading to a miscarriage of justice.

148 There was, we think, nothing in the evidence produced during the trial regarding either the intervention order, or the supposed evidence of bad character of John Hartwick, which was of significance. The tender of the intervention order was itself not objected to by counsel for John Hartwick. Insofar as evidence of bad character was given, it was of little significance in the overall conduct of the trial, covering matters such as going to the premises of Bi-Lo to get cannabis, and evidence by Canham that John Hartwick had previously attacked someone with poles. The actual presence of poles in Hartwick's car was relevant to issues raised in the trial. The jury were told by the judge, in his charge, to ignore this evidence against Hartwick.

149 In our opinion, John Hartwick failed to make good either of grounds 1 or 2. The judge correctly rejected the original application for separate trials, and nothing occurred during the course of the trial to justify ordering a separate trial against him.

150 We turn to the like applications made on Clayton's behalf during the course of the trial. At the outset, the trial judge stated his view that counsel for Clayton had not reached the necessary point that prejudice might be suffered warranting the granting of separate trials. When the application was reviewed from time to time by Clayton's counsel, much reliance was placed on the evidence bearing on the conversation with Macko. Prior to charging the jury, the judge set out to counsel the proposed direction he intended giving in regard to the evidence of Macko. In his charge, the judge directed the jury as to separate consideration of the cases against each of the applicants and directed them at considerable length not to use evidence that was admissible against one in their consideration of a case against another where that evidence was not admissible. His Honour made specific reference to the evidence of Macko and directed the jury in strong terms that Macko's evidence had no evidentiary value in considering the case against any of the applicants.

151 In our view the judge did not err in refusing the application for a separate trial on behalf of Clayton, whether at the outset, or during the trial itself.

152 Each of John Hartwick's grounds 1 and 2, and Clayton's ground 2, 3 and 15 should be rejected.

Prior inconsistent statements

First applicant - Ground 16

Third applicant - Ground 17

153 The argument under these grounds, made by Mr Tehan, was that the judge erred in failing to give the jury any direction in relation to prior inconsistent statements. This ground may be dealt with very briefly, since it was not submitted that this ground alone would have been sufficient to overturn the convictions.

154 Paula Rodwell was cross-examined at great length, by counsel for each applicant, and her evidence was on a number of occasions shown to have been inconsistent with prior statements she had made both in her evidence of the offences themselves, and as to surrounding matters. Furthermore, statements made by Keith Canham were also shown to have been inconsistent with earlier statements made by him.

155 Mr Tehan accepted that whilst extensive reference was made by all counsel to the prior inconsistent statements of these witnesses, both in cross-examination and addresses, no counsel asked the judge to give any direction as to how the jury might use such prior inconsistent statements, nor was any direction given by his Honour during the charge to the jury. Of course, no exception was taken by counsel to the fact that his Honour had given no such direction. Indeed, in relation to Rodwell, the judge said that he would not refer to her cross-examination on prior statements which were said to be inconsistent, as they had been referred to extensively in counsel's addresses.

156 It was submitted that the judge should have directed the jury on how they could or should use prior inconsistent statements in assessing the reliability of the evidence of Rodwell and Canham. It was argued that without proper direction the jury may well have regarded the time spent by counsel on exploring prior statements as a distraction. It was submitted that proper directions could well have had an important bearing on the jury's assessment of evidence bearing on critical issues including John Hartwick's demeanour after the deceased rammed his car into the applicants' cars and John Hartwick's role in the offences at the house of the deceased. Reliance was placed on Driscoll v. R.[114] and R. v. Schmahl[115].

157 As Mr Hillman said in argument, cross-examination of Rodwell about prior statements made by her had been dealt with in particular by counsel for John Hartwick, who spent much time in his address on the subject. Counsel told the jury repeatedly that these prior misstatements went to the credit of the witness and the jury were told how the evidence could be used to attack her credibility. If counsel had thought it necessary for any such direction to have been given by the jury, no doubt it would have been asked for. It is unnecessary to deal further with this ground.

Bad character and propensity

First applicant - Ground 17

Third applicant - Ground 16

158 Under John Hartwick's ground 17 Mr Tehan argued that the judge erred in failing to give any direction in relation to evidence of his client's bad character, being the evidence previously referred to in grounds 3, 4, 5 and 6. It was submitted that the judge should have given a strong warning to the jury that they could not use evidence of his bad character to reason that he was the kind of person who would commit the offences with which he was charged, that they could not use this evidence as a basis for their verdict, nor as proof of the offences charged. Most of the evidence, it was submitted, was tendered simply to show that the applicant was of bad character. Accordingly it was submitted that the judge had to give an appropriate direction such as that given in R. v. Grech[116].

159 Mr Boyce for Clayton adopted Mr Tehan's argument.

160 It is sufficient to say that Mr Hillman submitted that the evidence of bad character and/or propensity referred to was quite insignificant in the context of the trial as a whole, and that, by the time of the charge, counsel may well have taken the view that it was better not to highlight these matters and that it was desirable that they not resurface in the minds of the jury by their being reminded of them. No serious prior convictions were referred to and the relevant evidence in the context of the whole trial was little importance. No relevant exception was taken.

161 As we noted when dealing with grounds, 3, 4, 5 and 6, the bulk of the evidence which is the subject of those grounds was led to show the nature of the relationship between the applicants and the deceased and was admissible as part of the history of events showing the nature of the relationship between the applicants and the deceased and by comparison with the evidence of acts with which each applicant was charged, it was of minimal prejudicial effect. As already explained, we do not consider that there is any real risk that the jury made impermissible use of the evidence in reasoning to a conviction. We are strengthened in that conclusion by the fact that the judge specifically directed the jury that they were to exclude bias and sympathy and prejudice from their considerations and to decide each count on the basis only of the evidence which related to that count.[117] In some other cases it may have been necessary for the judge to go further than that, and specifically to direct the jury as to the limited purpose for which the evidence had been admitted [118] and that they were not to reason that because the applicants were the sort of people who had done things of that kind that they were more likely to be the kind of people who would commit the offences with which they were charged.[119] But, in our judgment, this was not such a case.[120] We reject grounds 16 and 17.

Appeal against conviction allowed in part

162 For the reasons which we have given, each applicant's application for leave to appeal against conviction will be allowed and each applicant's appeal against conviction will be taken to have been instituted and heard instanter and allowed in part. The conviction entered against each applicant on the count of having intentionally causing serious injury to Paula Rodwell (count 2) will be quashed and it will be ordered that a new trial be had. Otherwise, however, each appeal against conviction will be dismissed.

Resentencing

163 The quashing of the convictions on count 2 necessitates reconsideration of the non-parole period ordered in respect of each applicant and consequently reopens the sentencing discretion generally in respect of each applicant. Celia Clayton's application for leave to appeal against sentence will therefore be allowed and her appeal against sentence will be treated as having been instituted and heard instanter and allowed. Subject to anything which counsel may say, we propose also to treat each other applicant as applying for leave to appeal against sentence and to allow their applications and to treat their appeals as instituted and heard instanter and allowed. That said, however, we see no reason to disagree with the learned judge's analysis of sentencing considerations or his Honour's sentencing synthesis in respect of count 1 and accordingly we have concluded that that each should be re-sentenced on the count of murder (count 1) to 18 years' imprisonment and should serve not less than 14 years' imprisonment before being eligible for parole.