R v Kane [2001] VSCA 153

R v Kane [2001] VSCA 153 - VSCA 2001 case summary — Zoe

[7]

For present purposes I accept that so far as the verdicts of murder and manslaughter are concerned, courts in this state are bound by High Court authority and recent authority of this Court to leave to the jury the alternative verdict of manslaughter on any murder trial where the facts leave such a verdict open. One can understand why the courts have wished to leave open to the jury the possibility of acquitting on a count of murder where the facts are consistent with their bringing in a verdict on the lesser charge of manslaughter, even though counsel for prosecution and defence had not sought to raise the possibility of such a verdict during evidence and addresses. The rule was devised when the only sentence for murder was hanging and was further developed largely during a period when the only sentence was life imprisonment. Moreover, the earliest cases where the principle was laid down arose out of circumstances where there was a failure to leave to the jury the "defence" of provocation[2], which by its operation reduces the proper verdict from murder to manslaughter. Although in theory a verdict of murder would deny the existence of circumstances giving rise to provocation (or any other "defence"), a jury would not have directed their minds to that issue unless it had been specifically raised before them. Thus in such a case it cannot be said that the accused might not have been convicted of the lesser offence of manslaughter, for it would not be sufficient that the judge correctly directed the jury as to the primary elements of murder, nor, in the absence of a direction as to provocation, could it be asserted that the verdict of guilt amounted necessarily to a finding of every essential element of that crime. Although all the primary elements would on the surface have been made out, the injustice comes about because of the failure to put a quite different issue to the jury which may have led to their qualifying their finding as to guilt. All this was forcefully and succinctly explained in the judgment of McHugh, J. in Gilbert v. The Queen[3]. Nevertheless, as McHugh, J. continued[4]:

[18]

It is hard to fathom why the accused should not complain of unfairness[19] when an accused has been convicted of a lesser charge, if counsel had deliberately refrained from raising that alternative charge and the judge has chosen to raise it, notwithstanding the failure of counsel specifically to raise it in the course of argument. Even if the matter is raised, it is also hard to see why a deliberate choice made by counsel should not be given proper recognition by the judge, for, if counsel chooses not to address arguments directed to the alternative charges for tactical purposes, the jury is left at large as to how they should decide the relevant issues, except to the extent that the judge at the end of the trial raises them in a necessarily neutral manner in the charge itself. Thus an accused may be found guilty of an offence where he or she has been given no fair opportunity to contest the issue, upon the hypothesis that the Crown has chosen not to open the alternative verdict, so that evidence would not have been directed towards a conviction on it. Nor is it satisfactory, as has occurred on occasions[20], for the judge to allow some supplementary submissions to be made after counsel have addressed or even after the charge. That would seem to give undue emphasis to the alternative count and tend to make it more likely that the jury would find the accused guilty at least on that alternative count. Of course, if the alternative counts must be left, then it would be preferable, as has been suggested from time to time[21], for the judge to raise the matter, either before the Crown opening or, perhaps more realistically, at the close of evidence before the addresses to the jury. But the critical problem will arise if the prosecution, within its rights, still refuses to raise or address on the alternative charges and counsel for the accused agrees or acquiesces or asks the judge not to allow the alternative charges to be raised. Should judges in those circumstances "plough on" and raise those charges for themselves? That would hardly seem fair.

[23]

Mention should be made of two early decisions of the Court of Criminal Appeal in Queensland, in part because they were, or at least the first of them was, relied upon in later decisions, especially in that Court, and in part because the High Court, in hearing a special leave application from the second of them, seemingly disapproved the second of those decisions and implicitly disapproved the first of them. In the first, R. v. Short, Grealey and Plint[28], a verdict of burglary was set aside because of a failure to leave the lesser charge of larceny the Court there stating[29]: "The case was left to them as burglary or nothing. We think that this omission is in itself sufficient to amount to a miscarriage of justice and necessitates the ordering of a new trial." No more was said as to why this conclusion was reached. In the second, R. v. Vella[30], the Court, by a majority[31], followed Short, qualified only to the extent that it held[32] that it was not necessary to leave the alternative charge in cases where the evidence would not justify a lesser verdict. Hart, A.J. did not accept that there was any such general principle, saying[33] that the verdict could only be set aside if there was a miscarriage of justice. The Court by majority substituted a conviction for common assault. More importantly, when the matter came before the High Court on an application for special leave to appeal on a number of grounds, that Court thought it appropriate to express in some detail its reasons for rejecting the application.[34] Latham, C.J.[35] said that the proposition laid down by the Full Court in Short "cannot be laid down as a universal rule", although it was applicable in that case where there had been a misdirection as to the doctrine of recent possession in a burglary case. He went on to say[36] that he was "unable to see that any injustice was done to the accused because the jury were not told they could under a statutory provision find [the applicant] guilty of common assault". Starke, J.[37] was even more blunt, saying:

[48]

King, C.J. raised an issue which had only been mentioned in passing in earlier cases, namely that the doctrine of autrefois acquit provided a further consideration in favour of leaving all alternative charges to the jury, since in substance a verdict on the principal charge not merely cleared the presentment but cleared the accused of any alternative charges that could have been brought, unless there was in fact a partial verdict. He said that some judges had earlier placed incorrect reliance on the fact that the lesser charge could later be the subject of another prosecution and consequently he discussed the matter with learning and in some detail. I confess I am not greatly persuaded that it is of significance in cases of this kind. With great respect, the accused surely cannot complain of being effectively acquitted of other charges and, if the prosecution is concerned about the matter, it is always open either to include the relevant counts or to open them as alternative charges at the proper time, or otherwise to take the consequences. I do not agree that there is necessarily a public interest in leaving the charges open, for this ought, in the ordinary course of affairs, to be a decision for the prosecuting authorities. One may assume that, by reason of this doctrine, it is always open to a jury to bring in a verdict on a lesser charge if there is evidence to sustain it, but the question in cases such as the present (and where a jury has brought in a verdict on an alternative charge) is whether the verdict is unsafe and, to resolve that issue, whether it was necessary or fair (as the case may be) in all the circumstances to leave such a verdict to the jury. It is, with respect, no answer to say, as is perhaps suggested in both Varley and Benbolt, that it is in the public interest that a verdict be obtained on all possible and available alternative charges, for if the verdict is set aside on the basis of prejudice or unfairness, then the public interest may be served by directing a retrial at which all remaining alternative charges can be put. That can only occur, however, if the accused can fairly complain of prejudice, for, if the Crown does not seek to make a case on the alternative charges and the judge thinks it inappropriate to leave those charges to the jury, then the Crown has quite clearly has no right to seek a retrial on any charges.

[79]

It was at this point that Gleeson, C.J. and Gummow, J. called in aid the Canadian decision in Jackson. It was a case with remarkable factual similarities, in part because it raised similar questions of complicity under code provisions expressed in not dissimilar terms, and in part because the course of the trial was similar. In each case there were in fact directions given as to manslaughter but in each the judge had told the jury that the appellant could not be found guilty of manslaughter, at least in the circumstances of each case. In Gilbert the error had come about because the trial judge applied an earlier Full Court decision in that State which was later overruled in Barlow v. The Queen[137], so that there had been no argument on behalf of the appellant that manslaughter should have been left to the jury in those circumstances.[138] In Jackson there had been at trial a misconception as to the precise circumstances in which the appellant could have been found guilty of manslaughter, which was exposed in the course of the complex reasoning of both the Ontario Court of Appeal[139] and of the Supreme Court. The trial judge in fact left manslaughter to the jury, although he said that such a verdict was unlikely, but no objection was taken to that comment. Having concluded that the judge should have made clear to the jury that a verdict of manslaughter could have been brought in against the appellant, whatever verdict they reached as to the guilt of the co-accused, the Supreme Court turned to the application of the proviso in the Canadian Criminal Code. The Canadian Supreme Court, therefore, upon the basis that the ground for a verdict of manslaughter was not clearly and correctly put to the jury, denied the application of the proviso by saying that they were "not satisfied that it is clear that a jury, properly instructed, would necessarily have returned a verdict of second degree murder" against the appellant.[140] So they concluded that they could not be "certain" that, if the alternative charge[141] had been correctly put to the jury, "the verdict might not have been different", notwithstanding that they had been correctly instructed as to murder.[142]

[122]

In any event I think that there was ample evidence to support the verdict. The whole argument tended to divide the attack on the victim into a series of incidents, for none of which the applicant was responsible, other than the final attack in which she took the victim by what remained of her hair and banged her head into the handles of nearby cell doors. To my way of thinking that was, if I may say so, a wholly unrealistic approach, effectively relegating the applicant otherwise to the role of a spectator at a prize fight.[210] Of course, if there was any evidence which suggested her role was merely passive and that she was there only by chance watching these events, then her case might have been stronger. There was, however, no version of events from her side, either by way of statement or interview or in the form of sworn evidence, which denied the victim's account, and this made it the easier for the jury to draw the necessary inferences that she was well and truly complicit in the whole attack, scissors and all. They could have inferred that not only had the applicant gone to the B1 Unit deliberately, but also that she had inveigled the victim from her own unit to her fate at the hands of the co-offenders. Despite the applicant's apparent lack of participation in the earlier events of the attack, the jury could well have inferred that she was there providing "moral" (if one may misuse the term) and, if necessary, practical support for the others during that vicious attack. If one had been in any doubt about her role and interest in the outcome, then, just at the moment when one might have been lulled into a generous view about her presence, she engaged in the gratuitous attack of flaying the now seriously wounded victim against the nearby door handles. There could not have been a more emphatic demonstration of her complicity in the whole affair, for there was not a word or suggestion that the victim had done something at that stage to provoke this attack by the applicant or that it was in some other way unconnected with the earlier attacks. That provided the final link in the chain leading to the conclusion that the applicant had persuaded the victim to come to that cell block and that her purpose in being present during the earlier stages of the attack was to participate in it in one way or another. In short, the jury could have been well satisfied that she was party to the whole of the attacks which led to the victim's being seriously injured.

[124]

It was also suggested that the applicant was not responsible for the infliction of any serious injuries, as alleged in the two counts. There was no dispute that the scissor wound did result in the infliction of serious injuries, but it was said that the other wounds could not be characterised as serious injuries and certainly that the specific wounds inflicted as a result of the applicant's banging the victim's head against the door handles could not be so characterised. Although in argument I suggested that there was an issue as to the first of these alternatives, upon consideration I think not only that the jury was entitled to find that they were serious injuries, but that there could have been very little doubt that they should have been so satisfied. Even if the medical description was a little clinical, consideration of how they were inflicted and a viewing of the photographs tendered in evidence make clear how serious they were. Certainly there cannot be the slightest doubt on the evidence that those involved, both the applicant and the co-offenders, intended that the victim should suffer serious injury and no-one could fairly suggest that all they intended was just a slight "dusting up". Cross-examination was also directed, as it was later argued, to showing that the injuries received as a result of the head-banging exercise were not serious injuries, for the purpose of arguing that the applicant was therefore not responsible for the infliction of serious injuries on the victim. Having regard to the description of what then occurred, I am far from being persuaded that a considerable number of the more serious bruises were not to be attributed to the applicant and so could not be described as serious injuries. But if the applicant was to be found guilty, it was to be upon the basis that she participated either in concert or as an aider and abettor in the general attack on the victim, even if for present purposes one excludes consideration of the scissor wound. If one looks at the totality of the injuries caused during the evening's mayhem and the applicant's proper responsibility for them, then, for reasons which I have already given, those injuries could properly be described as serious injuries.

At a glance

Court

Decision date

Before

Source

Judgment (318 paragraphs)

Parties