R v Leivers & Ballinger [1998] QCA 99

One point about the subsection which is not at first sight clear is whether the offence of which the provision makes an offender guilty is necessarily the same as that first mentioned. It appears to me that this must, at least generally, be so and the explanation given to Parliament (Queensland Parliamentary Debates Vol. 311) when it was moved that the relevant bill be read a second time tends to support that view:

"The provisions as drafted will ensure that where any act or omission occurs which, if all the acts occurred in Queensland, would constitute an offence and any of those acts or omissions in fact occurs in Queensland, the person who does the act or makes the omissions is guilty of an offence of the same kind.

Mr Speaker, this provision changes the existing law requiring the initial element of an offence to be committed in Queensland in order to enable the prosecution to be brought here by conferring jurisdiction on Queensland where any part of the offence is committed here." (3253)

The words "of the same kind" in the explanation seem to mean the same offence as is earlier mentioned.

In the present case, if all the events - the assaults in Queensland and the immersion in New South Wales - occurred in Queensland, could they constitute the offence of murder? The answer must be yes, but a difficulty is that they would also constitute other offences and, in particular, assaults. It does not appear to me that this is a reason not to apply the provision; first, the word "offence" prima facie includes the plural and secondly, the fact that the acts or omissions constitute assaults is immaterial, for the provision is not concerned with offences constituted by acts or omissions, such as the assaults I have mentioned, occurring wholly within one State.

The assaults in Queensland would, given time, have caused Hockey's death; but one could not absolutely exclude the possibility that when immersed in New South Wales he was still alive. The immediate cause of death might have been drowning.

If, as here, there is a series of assaults, some in this State and some in another, and death ensues, s. 12(2) applies; that is so, in my view, even if it is not certain that the immediate cause of death was assault in Queensland. To read s. 12(2) of the Code so narrowly as to exclude such a case would hardly accord with the legislative purpose, s. 14A of the Acts Interpretation Act 1954 we must prefer an interpretation which will achieve that purpose.

It is therefore unnecessary to determine whether, apart from s. 12(2), the judge's directions on the place of death of which complaint is made would have accorded with the law's requirements; the facts brought the case within s. 12(2), as a matter of construction, and so if there were a misdirection on this question it could not have brought about a miscarriage of justice.

Section 59 of the Jury Act 1995 requires that the verdict of the jury in a criminal trial be unanimous. That requirement is satisfied if all the jury agree that the accused is guilty or all agree that he is not guilty; the statute does not express or imply that each member of a unanimous jury must follow the same or even a similar path to the conclusion each reaches.

In the present case the judge told the jury the verdict must be unanimous and went on:

"You may, however, all have different points of view in the course of reaching a decision and you may reach the same decision by different routes. All it means is that in the end you must all agree with the verdict that is announced whether it happens to be guilty or not guilty in each instance".

It was contended on behalf of both appellants that this direction was wrong and that by analogy with the decision of the High Court in KBT (1997) 72 A.L.J.R. 116, the jury should have been told that if they were to convict under s. 7 of the Code they must all agree that s. 7 applied and similarly with respect to s. 8.

It is, with respect, not clear to me that a juror convinced by the Crown case against one of the appellants under s. 7 must have accepted the s. 8 case also. A juror accepting that one of the appellants helped in some way in the killing of Hockey would not necessarily have also been convinced that there was any identifiable common intention to prosecute an unlawful purpose other than killing Hockey; to put that more generally, it is by no means in every case that a person guilty under s. 7 as an aider could have been successfully prosecuted under s. 8. But it is my opinion that if in the present case some of the jurors reached a verdict under s. 7 and the rest under s. 8, the verdict is good.

That there is, superadded to the statutory requirement of unanimity as to verdict, some sort of obligation on the jurors to agree as to reasoning, follows from the decision of the High Court in KBT, being the only case in that Court in which the problem of the meaning of jury unanimity has ever been considered. There the provision in question, s. 229B of the Code, made it an offence to maintain an unlawful relationship of a sexual nature with a child of a certain age and subs. 1A, now subs. 2, said in effect that there should be no conviction unless it was shown that the offender had committed certain defined offences on three or more occasions. The section did not say that the accused should be convicted if that were proved; it said he should not be convicted unless it were proved. Nevertheless, the principal judgment says that the actus reus of the offence under s. 229B "is the doing, as an adult, of an act which constitutes an offence of a sexual nature in relation to the child concerned on three or more occasions". Their Honours went on:

"Once it is appreciated that the actus reus of the offence is as specified in subs. (1A) rather than maintaining an unlawful sexual relationship, it follows . . . that a person cannot be convicted under s. 229B(1) unless the jury is agreed as to the commission of the same three or more illegal acts".

That is, the High Court read the section as if it said that the offence consisted in doing the three defined illegal acts.

The effect of what was held in KBT was that the relevant section makes it an offence of a certain kind to have committed, on three occasions, an offence of another kind. Treating s. 229B, then, as if it said that the offence of maintaining an unlawful relationship is constituted by three instances of commission of the offences mentioned in subs. 1A, KBT is authority for nothing more than that to convict of an offence, all the jurors must agree that the accused is guilty of the same offence.

The requirement that there must be unanimity as to the identity of the offence committed does not directly solve most problems in this area, for it makes the answer dependent on whether a difference between the routes taken by jurors to a guilty verdict amounts to their having, in substance, convicted of different offences. An example of an affirmative answer to this question being given, in a case whose facts resemble the present, is the decision of the New Zealand Court of Appeal in Chignell [1991] 2 N.Z.L.R. 257. The two accused were charged with having committed a murder at Taupo, but the case was conducted on the basis that the Crown could obtain a conviction if he was murdered at Auckland instead, some 5 or 6 hours earlier. The evidence was to the effect that the victim was maltreated at Auckland then taken to Taupo where he was thrown, bound and weighted, over a waterfall. It was unclear from the evidence whether the victim was killed at Auckland or at Taupo. The court said:

"It is sometimes possible . . . to treat a number of successive acts as one transaction animated by the same intent. But that was not the Crown case here. The alternatives it put were separated by place and in time, and involved wholly different acts and, it seems likely, different intents on the part of each accused. The two cases put by the Crown, murder at Auckland or murder at Taupo, are essentially different yet it is possible that there was no unanimity on either".

The court said that the jury had to be told "that they must be unanimous before they could convict on either alternative".

So if all the jurors were of the view that the accused murdered the victim, but some thought he was murdered in one place and some thought at another, the evidence against each accused relating to each place being different, there could be no guilty verdict. It is unclear how far that rule, if correctly stated, extends. The same court declined in Ryder [1995] 2 N.Z.L.R. 271, to extend it to a case in which there was uncertainty as to which of a series of assaults caused death; distinguishing Chignell, the court said of that case:

"Two distinct episodes were in issue there, one in Auckland and one at Taupo, and the evidence implicating the respective accused was materially different according to which was the place of death".

But it is not easy to see how one would distinguish from Chignell a case in which there was only one accused. If all the jury were satisfied that he murdered the victim, but some thought he murdered him at one place and time in certain circumstances and others thought he murdered him at quite another place and time, in quite different circumstances, could there be a guilty or indeed any verdict if Chignell is right?

In Thatcher (1987) 32 C.C.C. (3d) 481, the Canadian Supreme Court was faced with the problem of defining the scope of the requirement of unanimity of verdict. The prosecutor put forward two alternative cases, one that Thatcher had killed his ex-wife and the other that he had caused her to be killed. The Supreme Court held that there was "no legal difference" (514) between the two alternatives, although they were factually inconsistent. The conclusion reached was that the trial judge was not obliged to tell the jury that they had to be unanimous as to whether the appellant personally killed the victim or, on the other hand, aided and abetted another person in doing so. (This opinion was followed by the English Court of Appeal in Giannetto [1997] 1 Cr.App.R. 1, which refers to a number of other relevant authorities). The Supreme Court quoted with approval a statement that:

". . . if an accused is to be acquitted in situations when every juror is convinced that the accused committed a murder in one of two ways, merely because the jury cannot agree on which of the two ways, `it is difficult to imagine a situation more likely to bring the administration of justice into disrepute - and deservedly so'".

It is my opinion that the view adopted in Thatcher should be applied in the present case so as to cover a situation in which some of the jury may have applied s. 7 in reaching their verdict and others s. 8. It should be added that the court in Thatcher was troubled by the English decision in Brown (1983) 79 Cr.App.R. 115. There it was held that, on a charge of making a misleading statement which induced a person to act in a certain way, all the jurors must, where the Crown relied on a number of different statements as inducing, agree on a particular statement. I note that the doctrine of Brown does not appear to have been rigorously applied in England: Flynn (1985) 82 Cr.App.R. 319, More (1987) 86 Cr.App.R. 234 at 244, and Phillips (1987) 86 Cr.App.R. 18.

Accepting that the jury must not only be unanimous as to verdict, but also be unanimous as to the identity of the offence to which the verdict relates, Thatcher tends to support a broad approach to the latter requirement; such an approach would not, in the present case, vitiate a verdict arrived at by some jurors on the basis of s. 7 and on others on the basis of s. 8.

There were two main complaints made on behalf of Ballinger, as to corroboration. The first was that the judge told the jury that there was substantial evidence supporting material parts of Tabatha Sercombe's version and which might be regarded as corroborating her. His Honour said:

"I will later refer to that evidence in the particular cases, but I will indicate it broadly here. Evidence that is capable of corroborating her includes in each case the record of interview of the person which confirms incidents like those that Tabatha describes".

His Honour did not explain what part of any record of interview supported what Sercombe said against Ballinger. In discussing the case against Ballinger, his Honour merely said that he did not think Ballinger's record of interview was really helpful to anyone and that he need not refer to it. He then said:

"Now, in particular, pay no regard to anything that any co-accused has said against him in their statements to the police".

What his Honour had in mind when he told the jury that evidence capable of corroborating Sercombe included in each case "the record of interview of the person" must surely have been that admissions made by each accused could corroborate what Sercombe said against that accused. If his Honour had said that evidence given by Sercombe against a particular accused could be corroborated by admissions made by another accused, that would have been wrong; but could what his Honour said have been taken by the jury to mean that?

In my opinion the answer to that question is no. Admittedly, to say that the evidence capable of corroborating "includes in each case the record of interview of the person . . . " is rather vague, and perhaps undesirably so; but it was made plain enough, by repeated statements, that what one accused told the police could not be used against another. In introducing his discussion of the case against Ballinger the judge referred to Ballinger's own record of interview and said (as I have mentioned) that it was not helpful to anyone. His Honour continued:

"Now, in particular, pay no regard to anything that any co-accused has said against him in their statements to the police".

The other main complaint under this heading was that the judge did not identify what evidence of other witnesses might be corroborative of Sercombe's. That is correct; his Honour repeated his statement that there was evidence capable of corroborating Sercombe, but never told the jury precisely what parts of the evidence fell for consideration, in that category.

Although it appears to have been the practice for judges to attempt to identify precisely which parts of evidence put forward by the Crown as corroborative are capable of being so, the weight of authority is in favour of the view that this is not essential, in every case: see Walczuk [1965] Q.W.N. 63 at 64, referred to with approval in Lewis [1994] 1 Qd.R. 613 at 650, and in Small (1994) 33 N.S.W.L.R. 575 at 593; I refer also to the discussion in Matthews and Ford [1972] VicRp 1; [1972] V.R. 3 at 20, and to Sorby [1986] VicRp 77; [1986] V.R. 753 at 782, 783. Here the judge intended to identify evidence capable of being corroborative as he went along in his discussion of the case, but did not in the end do so; it does not appear to me that this was a case in which his Honour not having attempted this task was in error.

JOINT REASONS FOR JUDGMENT - FITZGERALD P. and MOYNIHAN J.

The appellants and two other persons were convicted in the Trial Division on 25 June 1997 of the murder of Kevin Hockey on 31 December 1995. The appellants have appealed against their convictions.

On the night in question, Hockey was badly beaten at his residence at Elanora near Currumbin on the Gold Coast. The assault occurred over a period of hours, with a total of seven people present at different times, two of whom later gave evidence for the prosecution. After he had been tied up and taken from the residence to its garage, Hockey was struck on the head with weights. His cries then ceased and soon afterwards the appellants drove away in his van with Hockey, or his dead body, in the van. Subsequently, on 1 January 1995, the van was found in the Rous River, near Tumbulgum in New South Wales. On the following day, Hockey's body was found, with his hands tied behind his back, floating nearby, snagged on a tree branch.

A post-mortem revealed extensive head injuries including depressed fractures of Hockey's skull, which would have caused his death within one hour. The post-mortem also found watery bloodstained fluid in the chest cavities of Hockey's body. The pathologist gave evidence that, although the fluid was consistent with a possibility that Hockey had drowned before dying from his head injuries, it was not a reliable sign of drowning.

The appellants argued that the pathologist's evidence nevertheless left open the possibility that Hockey had drowned before he died from his head injuries, and hence necessarily raised a reasonable doubt as to whether he had been unlawfully killed in Queensland.

A submission was made at trial on behalf of the appellant Leivers, but not the appellant Ballinger, that if there was any possibility of drowning in New South Wales, the Supreme Court of Queensland had no jurisdiction to try the appellants for his murder. In this Court, Ballinger joined in that argument, which is plainly incorrect. Evidence of a possibility that Hockey drowned in New South Wales was potentially material to the jury's decision whether the prosecution had proved beyond reasonable doubt that Hockey was unlawfully killed in Queensland according to Queensland law,[1] but the Court clearly had jurisdiction to decide that issue.

As it was, because of the approach adopted by the appellant Leivers, the trial judge required the jury to find a special verdict under s. 624 of the Code. The transcript of the proceedings at this point is somewhat confused, but it is evident that the jury's special verdict was that Hockey's death was caused by acts done in Queensland; effectively, that Hockey's murder, as found by the jury's subsequent general verdicts, had been committed in Queensland.

Those verdicts were clearly open. As earlier noted, the pathologist's evidence was that Hockey's head injuries from the beating he received would have caused death within one hour. It was common ground at trial that the appellants drove away from Hockey's residence with his body in the van no later than 2.15 a.m., and the appellant Ballinger gave evidence that daybreak was approaching when the body was placed in the river. Ballinger also gave evidence that he checked and was satisfied that Hockey was dead before his body was placed in the van and driven away from his residence. Nothing said by or on behalf of the appellant Leivers made a substantial challenge to this evidence.

The appellants' final argument on this aspect of the matter was that the trial judge misdirected the jury. His Honour told the jury that it was sufficient if it was satisfied beyond reasonable doubt that "what happened in Queensland was a substantial cause of [Hockey's] death" and "contributed significantly to his death". He further told the jury that, if what was done in Queensland "made death inevitable and some later action like putting the body into the water accelerated it, you could still find that the primary and substantial cause of death was head injuries inflicted in Queensland". Although the appellant Ballinger made no complaint concerning these directions at trial, in this Court he joined with the submissions of the appellant Leivers that the sentence last quoted was fundamentally incorrect, and that the jury should have been instructed that the injuries to Hockey in Queensland were not a material cause of his death if he was alive when placed in the water and then drowned. Reference was made to s. 296 of the Code to emphasise that the acceleration of Hockey's death by drowning him - if he had been alive when placed in the river - would itself have constituted an unlawful killing under Queensland law if the drowning had occurred in Queensland. It was submitted that, on such a hypothesis, there was an intervening cause of Hockey's death, which was caused by the drowning in New South Wales, not by beating him and tying him up in Queensland. Reliance was placed on R. v. Evans and Gardener (No. 2).[2]

There is superficial force in these submissions. If a person is on the verge of death for some other reason, for example head injuries or, say, terminal illness, and then drowns, the immediate cause of death is the drowning, not the head injuries or the illness. The causal connection between the head injuries or the illness and death is apparently broken by the drowning.[3]

However, the critical flaw in the appellants' argument in this case is that it is an artificial dissection of a single, connected course of conduct, commencing at Hockey's residence and concluding with the events at the river, into a series of separate, isolated activities. Causation is a common sense issue.[4] Even if Hockey had still been alive when he was placed in the river, his unlawful killing, which on this hypothesis was completed when he died from drowning, did not commence when he was placed in the river but when he was beaten and tied up at his residence. Those acts - rendering him unconscious and incapable of saving himself - were integrally involved in his death even if he died by drowning. Whatever might have been the position otherwise, the effect of sub-s. 12(2) of the Code is to render the appellants criminally liable to the same extent as if the entire course of conduct had occurred in Queensland.

In the circumstances, there was no misdirection on this topic which caused the trial to miscarry or deprived the appellants of a fair chance of acquittal. If anything, the directions given unduly favoured the appellant.

The appellants were prosecuted on the basis that neither struck the fatal blows, but rather that each of them was guilty by virtue of either sub-s. 7(1)(c) or s. 8 of the Criminal Code.[5] The basis of the respective cases against the appellants can be discerned from the following extracts from the summing-up.

"The Crown says that he is guilty under section 7 because he aided knowing that murder was intended, that he restrained and disabled Mr Hockey in the events leading up to the final blow and that he was there at the relevant time and encouraged the fatal blows through his voluntary and deliberate presence. ...

Now, the Crown further says under section 8 that Mr Ballinger is party to a common unlawful purpose, that of giving a serious protracted beating to Mr Hockey, that he initiated it and that he was still there directing the show at the end and performed many acts of violence in the interim. The Crown suggests that in the end that, in fact, happened, the murder of Mr Hockey was a probable consequence of the purpose that he supported.

So if you are satisfied beyond reasonable doubt that he was aware that matters had degenerated to the situation that Mr Hockey was to be eliminated - that is, killed - and he gave aid in the manner described and a murder was actually committed, he is guilty of murder as the Crown says under section 7. Alternatively, if he was party to a common unlawful purpose such as a serious protracted beating and he participated in it by committing the acts that have been mentioned, then he is guilty of murder under section 8 if murder was a probable consequence of carrying out that purpose and if Mr Hockey was in fact murdered in the carrying out of that purpose. He would be guilty only of manslaughter if Robbie Wilson was guilty only of manslaughter or if the probable consequence of carrying on with the common purpose to which he was a party was only manslaughter as distinct from murder.

So, ladies and gentlemen, I have mentioned two ways in which he might be convicted of murder, one under section 7 and one under section 8, and two ways in which he might be convicted of the lesser offence of manslaughter. Obviously, if when you consider these possible routes to conviction you have a reasonable doubt as to the existence of any element that would be necessary to justify conviction on that footing, then you would not convict him on such a footing, you would go on to consider the other alternatives. If you had a reasonable doubt as to the existence of a necessary element in relation to each of them, then you would acquit him entirely.

Those are the options which are open to you on the case which has been brought against Mr Ballinger. ..."

"If you are satisfied beyond reasonable doubt that Miss Leivers was aware that matters had degenerated to such a state that Mr Hockey was going to be eliminated, that is, killed, and she gave aid in the manner described, namely, by helping to hold him down, helping to stop him from getting away when he was trying to get out of the back of the van, and a murder was actually committed, she is guilty of murder as the Crown says under section 7. If she was party to a common unlawful purpose such as a serious protracted beating and she participated in it by doing the acts that have been mentioned, then she is guilty of murder under section 8 if murder was a probable consequence of carrying out that purpose and if Mr Hockey was, in fact, murdered in the carrying out of that purpose. She would be guilty only of manslaughter if Robbie Wilson was guilty only of manslaughter or if the probable consequence of carrying on with the common purpose to which she was a party was only manslaughter as distinct from murder.

So I have mentioned two ways in which she might be convicted of murder, one under section 7 and one under section 8, and two ways in which she might be convicted of the lesser offence of manslaughter.

The same thing as I said in Mr Ballinger's case applies. If when you consider these possible routes to conviction you have a reasonable doubt as to the existence of any element that is necessary to justify a conviction on such a footing, then you would not convict her on such a footing. You would go on to consider the other alternatives and if you had a reasonable doubt as to the existence of a necessary element in relation to each of them, then you would acquit her entirely. Those then are the open options that are available to you in the case of Tracey Leivers."

The appellants argued that the trial judge misdirected the jury with respect to the need for a unanimous verdict.[6] The complaint made was that his Honour instructed the members of the jury that all might "have different points of view in the course of reaching a decision and you may reach the same conclusion by different routes. ... in the end you must all agree with the verdict which is announced whether it happens to be guilty or not guilty in each instance". It is at least implicit in that direction that some jury members might find either of the appellants guilty by virtue of sub-s. 7(1)(c) of the Code, while the remainder might find that appellant guilty by virtue of s. 8 of the Code. The appellants argued that such a direction was incompatible with the decision of the High Court in K.B.T. v. R.[7] and statements by the Victorian Court of Criminal Appeal in Beach.

In K.B.T.,the prosecution had to prove that the accused had committed three or more acts of a specified nature. It is irrelevant for present purposes that the nature of the acts was such that each was also individually an offence. The prosecution evidence was that the accused had performed numerous such acts, i.e., more than three. The High Court decided that it was insufficient to establish the appellant's guilt if each juror was satisfied beyond reasonable doubt that the accused did an act of the requisite nature three or more times; the jury could only convict if "agreed as to the commission of the same three or more ... acts".[8] (Emphasis added) The conclusion that jury unanimity with respect to three specific acts was required appears to have been at least partially related to the construction of the section of the Criminal Code[9] on which the prosecution was based. Subject to what is later stated, it is difficult to derive any principle from K.B.T. which is directly applicable in the present case, and, in our opinion, K.B.T. is certainly not determinative of this case.

Statements in the other decision relied upon by the appellants, Beach,[10] are more helpful to their argument.

Beach was convicted of causing the death of another by the culpable driving of a motor vehicle in that he drove the motor vehicle (a) negligently or (b) whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the said motor vehicle contrary to s. 318 of the Crimes Act 1958 (Vic). He was also convicted on another count of causing serious injury by criminal negligence to another person who was injured in the same collision.

The trial judge instructed the jury as follows with respect to the first count, namely, that relating to causing death by criminal driving:

"I direct you that it is not necessary that you all find him negligent, or that you all find him under the influence of alcohol, or that you all find both elements. If some of you are satisfied beyond reasonable doubt that he was negligent as defined, and all the rest of you are satisfied beyond reasonable doubt that he was under the influence of alcohol to the required degree, then you have found unanimously that his driving was culpable. The same applies, of course, if you all find him negligent, or you all find him under the influence of alcohol, or you all find both elements, that that is not necessary."

The Victorian Court of Criminal Appeal dismissed an appeal, but only because the jury's verdict on the second count was "consistent only with a finding that the verdict which caused serious injury to [the other person injured in the same collision] was occasioned by the criminally negligent driving of the applicant." That was "of critical importance".[11] The Court said:

"As the deceased met his death in the accident which gave rise to count 2, and there was no suggestion of any intervening consideration, it would follow that all members of the jury must have been satisfied beyond reasonable doubt that the applicant was guilty of culpable driving by reason of his negligent driving of the motor vehicle. As we have indicated, a verdict arrived at on this basis was clearly open to them".

It was because the same test of culpable driving applied to both para. (a) (or count one) and to count two that the Court later said:[12]

"Where, as in the present case, all of the members of a jury were satisfied that the conduct of an accused was encompassed by, at least, one of the categories specified, no problem could be seen to arise from the inclusion of separate allegations in the presentment."

What are important for the present appellants are the following obiter statements in Beach:[13]

"In our view, a very different situation would exist where no such finding could be made. In that circumstance, we do not consider that a verdict of guilty could be properly sustained. ...

We consider that the legislature cannot have intended the injustice involved in the acceptance of a verdict of guilt of an accused of the commission of a serious criminal offence, based upon quite disparate findings relating to the very foundation upon which the verdict rests. ...

... in our view if there existed any reasonable possibility that the jury may have divided as earlier indicated and agreed, for practical purposes, only in the result, no true unanimity could be seen to exist.

We should add that we are not unmindful and have taken heed when making these comments of what was said by the Court in Clarke and Johnstone [1986] VicRp 64; (1986) V.R. 643 at 661; [1986] VicRp 64; (1996) 21 A.Crim.R. 135 at 154:

`It is sufficient that the law established by universal practice in this Court permits a jury to reach a verdict at the way the trial judge told the jury here. Homicide trials are a familiar example. The prosecution case of murder or manslaughter is often put in several ways involving different elements. It has never been the law that, before convicting, the jury must all be satisfied of guilt in the one way. The ordinary approach is consistent with the approach of this Court in Power [1960] VicRp 60; (1960) V.R. 373, at 374.

We do not understand the members of the Court on that occasion to have been suggesting, in a case which did not require them to address the question, that at the end of the day the only matter about which the jury must be unanimous in a criminal trial is the result."[14] (Emphasis added)

Neither of the two earlier Victorian decisions, Clarke and Johnstone[15] or Beach, was referred to in Muto and Eastey.[16] There, the Victorian Court of Appeal, after referring to a common direction relating to the Victorian statutory provision permitting majority verdicts, continued:[17]

"That usually follows a direction to the effect that the verdict must be unanimous, not in the sense that the jurors must agree as to how the verdict should be reached, because each may rely upon different parts of the evidence or place a different emphasis on parts of the evidence or use different reasoning processes about the evidence, but in the sense that, before they may convict the accused or acquit the accused, they must be agreed. Their verdict, whether or guilty or of not guilty, must be one which they all agree to be the proper verdict."

Certainly, as common sense dictates, the law does not require individual jurors to agree about everything.[18] There was obviously no requirement in the present case for each juror to agree with every other juror on the actual sequence and specific details of the events of which evidence was given. R. v. Ryder[19] is an obvious example of the proposition that unanimity on every matter is not essential. Conversely, R. v. Chigwell,[20] which was distinguished in Ryder, illustrates circumstances in which unanimity on a particular matter was essential.

The English Court of Appeal has considered the requirement of unanimity on a number of occasions. Earlier decisions were reviewed in Giannetto,[21] which involved a prosecution case that the accused had either murdered his wife or had had her killed. It was held that the jury did not have to make a unanimous choice between those alternatives provided that it was satisfied that Giannetto was guilty on one basis or the other. Kennedy L.J., who delivered the judgment of the Court, said:[22]

"Having considered the authorities with some care we are satisfied that in the circumstances of this case the trial judge was right not to direct the jury that before they could convict they must all be satisfied either that the appellant killed his wife or that he got someone else to do so. They were entitled to convict if they were all satisfied that if he was not the killer he at least encouraged the killing, and accordingly this ground of appeal fails.

There are two cardinal principles. The first is that the jury must be agreed upon the basis on which they find a defendant guilty. The second is that a defendant must know what case he has to meet. When the Crown allege, fair and square, that on the evidence, the defendant must have committed the offence either as principal or as secondary offender, and make it equally clear that they cannot say which, the basis on which the jury must be unanimous is that the defendant, having the necessary mens rea, by whatever means caused the result which is criminalised by the law. The Crown is not required to specify the means, because the legal definition of the crime does not require it; and the defendant knows perfectly well what case he has to meet. Of course, if (as will very often be so) the Crown nail their colours to a particular mast, their case will, generally, have to be established in the terms in which it is put. Our judgment should give no encouragement to prosecutor casting around for alternative possibilities where the essential evidence does not show a clear case against the defendant. But the facts of the present appeal are by no means an instance of that." (Emphasis added)

In most cases, including Giannetto, the English Court of Appeal has rejected the contention that there had been a failure to require unanimity on an issue on which unanimity was essential. The following passages in Giannetto relate to two earlier decisions, Phillips[23] and Gaughan,[24] which were expressly approved in Giannetto:

"... in Phillips (1988) 86 Cr.App.R. 18 this Court rejected a submission that the judge should have directed the jury that each member of the jury had to be satisfied that the defendant conspired with the same person. Woolf L.J. (as he then was) said at p. 25 `the jury in this case could be satisfied that there was a conspiracy even though they had not decided anyting more than that the defendant had conspired with at least one other person, whatever his identity'. That approach seems to us to be in line with the approach which we have tentatively suggested to be appropriate in the present case. Furthermore Woolf L.J. went on to adopt what had been said by Hodgson J. In this Court in the case of More namely:

`It seems to us however that it will only be necessary for us to give a direction on the lines set out in Brown (1984) 79 Cr.App.R. 115, in the comparatively rare case where it emerges at some stage in the course of the trial, or as a result of a question asked by the jury, that there is a risk of disagreement between the members of the jury as to whether a particular ingredient of the offence has been proved.'

Nothing said by the House of Lords detracts from that proposition which we too respectfully adopt."[25] (Emphasis added)

"In Gaughan [1990] Crim.L.R. 880, the prosecution alleged that the appellant had damaged the complainant's motorcar, or got someone else to do so. On appeal he contended that the two alternatives should have been spelt out in separate counts. That was rejected by this Court, Lloyd L.J. (as he then was) saying at p. 7G of the transcript that `committing an offence as a principal and committing an offence as an accessory are two different ways of participating in the same offence. They are not separate offences.' The practical reason for not having two separate counts had of course been spelt out by Dickson C.J.C. in the case of Thatcher (supra). Commenting on the case of Gaughan Professor Smith said:

`It is fundamental that the defendant should be told as precisely as possible what he is alleged to have done and that he should not be charged with doing one thing and convicted of doing something else. There will be occasions, however, when it is impossible to specify that mode of participation before the trial and where the case may have to be left to the jury on the basis that the defendant was either a principal or an accessory. It has long been established that this is permissible: Swindall v. Osborne [1846] EngR 506; (1846) 2 C. & K. 230' ([1990] Crim.L.R. 881).

However, in Giannetto the English Court of Appeal accepted that there must be unanimity concerning the "essential elements of the offence":[27] compare the reference in Beach[28] to "the very foundations on which the verdict rests". The statement from K.B.T. which is set out above[29] is also consistent with the High Court's acceptance of a requirement of unanimity in a context in which the Court considered that three identified occasions on which the proscribed activity occurred were "essential elements of the offence" and "the very foundations on which [a guilty] verdict rests".

As was acknowledged in Giannetto,[30] the requirement that "a jury must all find each essential element in an offence to be proved" raises the question of what are the essential elements in an offence for this purpose. Brown[31] was accepted in Giannetto as a case in which jury unanimity on specific factual elements was essential. Reference was made to Brown in the following terms:[32]

"... In that case it was alleged that the defendant fraudulently induced investment of money, contrary to section 13(1)(a) of the Prevention of Frauds (Investments) Act 1958. A number of allegedly false statements were set out in the charge, and the jury asked this question:

`If the individual members of the jury find him guilty of different parts of the count, is he guilty of the whole count, and is the verdict ... unanimous?'

The judge answered the question in the affirmative, and this Court held that he was wrong to do so, because the statutory provision relied upon, so far as material, read as follows:

`Any person who, by any statement ... which he knows to be misleading, false or deceptive ... induces ... another person ... to enter into ... any agreement ... shall be guilty of an offence.'

Unless the jury could agree as to which, if any, of the specified statements was both (i) known by the defendant to be misleading, false of deceptive and (ii) effective in that it induced an investment, then no offence was proved. ..."

Superficially, at least, there seems to be some difficulty in reconciling Brown and Phillips[33]. However, when considering the latter case, it must be borne in mind that the conviction of a conspirator may stand notwithstanding that the alleged co-conspirator is acquitted unless the two verdicts are inconsistent in all the circumstances.[34]

One test for distinguishing between essential and non-essential facts for present purposes appears from a later passage in Giannetto in which there is further reference to Brown. That passage[35] is as follows:

"In an article in the 1988 Criminal Law Review Professor Smith considered the English authorities, and concluded that the principle stated in Brown applies `when the prosecution allege more than one factual basis for the crime charged and it is not possible to say "if it was not the one then it must have been the other" ' [1988] Crim.L.R. 344. If in any given case the factual basis of the crime charged is in reality coterminous with an essential element or ingredient of the offence then we can accept without difficulty Professor Smith's formulation, and in relation to the facts of the present case it was possible to say, plainly and the prosecution did say, that if the appellant was not himself the killer, then he instigated the offence." (Emphasis added)

The correctness of Brown had been left open by the Canadian Supreme Court in Thatcher,[36] which was in turn cited, with approval, in Giannetto.[37] The facts in Thatcher and Giannetto were materially similar and the conclusions were the same. Provided that it was proved that Thatcher either killed his ex-wife or had her killed - i.e., in the words of Professor Smith quoted in Giannetto,[38] "if it was not the one then it must have been the other" - jury unanimity was not required.

However, it is unclear whether the approval of Thatcher in Giannetto related to the opinion of Dickson C.J., with whom Beetz, Estey, Wilson and Le Dain concurred, or the opinions of Lamer J. and La Forest J., both of whose judgments contained qualifications on the broad views adopted by Dickson C.J. It is desirable to set out extracts from each judgment.

Dickson C.J. started from the premise that the means adopted by Thatcher to bring about his ex-wife's death - i.e., killing her himself or aiding and abetting someone else to do so, was "a matter of legal indifference".[39] At pp. 414-415, his Honour said:

"When one considers the implications of the appellant's submission, it becomes even clearer that it is without merit. In the present case there were doubtless three alternatives in the minds of each of the jurors:

The jurors were told that if any of them had a reasonable doubt regarding (c), Thatcher should be acquitted. Every single juror was, evidently, solidly convinced that (c) was simply not what occurred. Each one was certain that the true state of affairs was (a) or (b). Even if we suppose, as the appellant would have us do, that the jurors individually went beyond thinking in terms of (a) or (b) and specifically opted for one theory, and that some jurors thought only (a) could have occurred and others thought only (b) could have occurred, I am far from convinced that there would have been any injustice from convicting Thatcher. As stated, there is no legal difference between the two. Much is made of the fact that (a) and (b) are factually inconsistent theories, in the sense that evidence proving (a) tends to disprove (b). But this is really only true of one category of evidence, namely, identification and alibi evidence. The overwhelming mass of evidence against Thatcher was consistent with either theory. ...

The appellant's suggestion would fail to achieve in a significant number of cases. ... As Professor Peter MacKinnon points out in, `Jury Unanimity: A Reply to Gelowitz and Stuart', 51 C.R. (3d) 134 at p. 135 (1986), if an accused is to be acquitted in situations when every juror is convinced that the accused committed a murder in one of two ways, merely because they jury cannot agree on which of the two ways, `it is difficult to imagine a situation more likely to bring the administration of justice into disrepute - and deservedly so'."

"I agree with the Chief Justice that the jury unanimity point fails. I would suggest, however, that it fails because of the nature of the evidence in this case. It is true that the Crown presented two factually inconsistent theories: that the appellant actually killed the deceased or that he aided and abetted the killer. The overwhelming mass of the evidence against the appellant, however, was consistent with both theories and pointed only to his participation in the murder. The jury could not have been convinced beyond a reasonable doubt of one theory to the exclusion of the other, but must have been convicted beyond a reasonable doubt that the appellant participated in the murder, either as principal or aider and abetter. ... As Peter McKinnon wrote in `Jury Unanimity: a reply to Gelowitz and Stuart', 51 C.R. (3d) 134 at p. 137 (1986): `If, as their deliberations progress, the jurors, though not in agreement in their assessment of the probable type of involvement, are satisfied beyond a reasonable doubt that the only possible types of involvement establish guilt, they should convict.'

... Depending on the nature of the evidence presented by the Crown, the jury unanimity issue may arise in any case where the Crown alleges factually inconsistent theories, even of those theories relate to the particular nature of the accused's participation in the offence. If the Crown presents evidence which tends to inculpate the accused under one theory and exculpate him under the other, then the trial judge must instruct the jury that if they wish to rely on such evidence, then they must be unanimous as to the theory they adopt. Otherwise, the evidence will be taken into account by some jurors to convict the accused under one theory while the fact that the evidence exculpates the accused under the other theory is being disregarded by the other jurors who are taking the latter route. In effect, the jury would be adding against the accused the inculpatory elements of evidence which cannot stand together because they are inconsistent."

"The essential point in this case is that although alternative theories of culpability were advanced by the Crown, there were ample grounds for the jury to find Thatcher guilty beyond a reasonable doubt while remaining unsure whether he had committed the murder himself or through another person. There may, however, be cases where the interrleationship between competing Crown theories and the evidence adduced in relation thereto will not justify a verdict of guilt. In each case, therefore, it will be for the trial judge, having regard to the nature of the offence, the theories of the parties, and the totality of the evidence, to realistically assess the possibility that the evidence will be used improperly, and to direct the jury accordingly. Suffice is to say, however, the present is not such a case.

... The fact that s. 21 makes the particular nature of the accused's involvement in an offence legally irrelevant does not, in my view, in and of itself justify conviction on the basis of mutually exclusive or alternative theories of culpability. Were it otherwise, concerns would be raised dangerously akin to those flowing from multiplicitous counts. Concerns about multiplicity of counts and jury unanimity are functional, real concerns embodying society's pre-eminent desire to avoid injustice to accused persons and, as such, cannot be explained away by the mere invocation of a legal fiction. ..."

Although neither Thatcher nor Giannetto involved co-accused, on one prosecution hypothesis in each case another person, not the accused, was the principal offender, and an integral part of the reasoning of each of Dickson C.J. and Kennedy L.J. was grounded in the case law with respect to alleged co-offenders. When a prosecution alleges that there were two or more offenders, the law has pragmatically refused to permit guilty persons to escape criminal liability because the precise role of each could not be proved beyond reasonable doubt.[42] In that context, the prosecution of course cannot rely on the proposition that "if it was not the one then it must have been the other". It must be proved that each was materially involved, i.e., in a manner which attracts the criminal liability charged,[43] and that any matter which cannot be proved is "a matter of legal indifference".

On one view, perhaps involved in the judgment of Dickson C.J. in Thatcher, the only step in the jury process which is not "a matter of legal indifference" is the jury's final conclusion or verdict, and that is the only matter on which unanimity is required.[44] If unanimity on other matters is required, how is it determined what is and what is not "a matter of legal indifference"? Answers which have been given are that the jury must be unanimous with respect to "findings relating to the very foundation upon which the verdict rests",[45] or the "essential elements of the case".[46] Those criteria, while perhaps lacking some precision, provide a practical test which is compatible with the fundamental requirements for criminal guilt, namely unanimity of verdict and proof beyond reasonable doubt. It is important to emphasise that the criteria are not directly concerned with the legal constituent elements of the offence charged but with the actual issues which are prerequisites to a guilty verdict in the particular circumstances of the individual case.

When more than one basis of criminal liability is relied on against an accused, it is, in our opinion, necessary for the jury to be unanimously satisfied that the requirements of at least one basis of liability are proved beyond reasonable doubt. It will not necessarily be sufficient for some members of the jury to be satisfied that the requirements of one basis of liability are established and for other members of the jury to be satisfied that the requirements of another basis of liability are established. However, that will be sufficient if the alternate bases of criminal liability do not involve materially different issues or consequences. The point is clearly explained in the judgment of Lamer J. in Thatcher.[47]

In the present case, the prosecution's reliance upon both sub-s.7(1)(c) and s. 8 of the Code implicitly assumed that different findings by the jury were necessary for the respective purposes of the two provisions. That is technically correct. According to the summing-up, guilt by reference to sub-s. 7(1)(c) required participation in Hockey's murder by the appellant in question with knowledge that Hockey was to be murdered; guilt by reference to s. 8 required participation with knowledge that Hockey was to be severely beaten and with his murder objectively a probable consequence of that beating.[48] The same activities by each appellant were sufficient for either purpose. The essential issue raised for consideration is whether the jury could properly convict either of the appellants if some members concluded that that appellant knew that Hockey was to be murdered while other jury members concluded that that appellant believed that only a severe beating (with murder as its probable consequence) was intended. Although the trial judge did not explain the passage in the summing up of which the appellants complain, his Honour quite possibly considered that there were no significant differences between the alternate bases of criminal liability relied on by the prosecution against each appellant. In this Court, no such differences were identified. A conclusion of guilt by virtue of sub-s. 7(1)(c) necessarily subsumed the less serious findings which were necessary to a conclusion of guilt by virtue of s. 8. Guilt on the basis of s. 8 involved an intention that Hockey receive a beating which had murder as its objective probable consequence. That was plainly less than was necessary for guilt under sub-s. 7(1)(c), which involved knowledge that Hockey's beating was intended to cause his death or grievous bodily harm. We are unpersuaded that, on the evidence, there might have been findings which would satisfy the prosecution's case based on sub-s. 7(1)(c) but fail to satisfy its case based on s. 8.

In summary, in our opinion, the directions of the trial judge with respect to unanimity, taken in context, did not deprive either appellant of a chance of acquittal or involve the risk of a miscarriage of justice.

The appellant Ballinger, but not the appellant Leivers, raised a further argument that the trial judge had misdirected the jury with respect to the corroboration of the evidence of Tabatha Sercombe, a prosecution witness who was treated as a possible accomplice.

The principal submission was that the trial judge wrongly instructed the jury that the records of interview of other accused persons tried with the appellant Ballinger could be used to corroborate Ms Sercombe's evidence implicating him in Hockey's murder. An associated submission was that the jury was wrongly instructed that corroboration of Ms Sercombe's evidence might be found in general similarities with the evidence of other witnesses, unrelated to any particular matter.

On a fair reading, the summing-up provides no foundation for these complaints, and is directly inconsistent with the first of them. It was emphasised at a number of points that statements by an accused according to a record of a police interview with that accused could not be used as evidence against any other accused, and the only impugned passage clearly reflected the trial judge's direction that that applied "in each case". However, admissions in records of interview by others involved in the attack on Hockey and associated events which confirmed Ms Sercombe's account of their activities were capable of adding to the probability that her evidence of Ballinger's activities was accurate.

The second matter raised by the appellant Ballinger referred to above was associated with submissions that the trial judge wrongly omitted to particularise the evidence which was capable of corroborating the evidence of Ms Sercombe, and that there was no such evidence.

The latter assertion is entirely without foundation. Significant parts of Ms Sercombe's evidence against the appellant Ballinger were corroborated by his own statements in evidence. For example, Ballinger's evidence accorded with the evidence of Ms Sercombe and other witnesses, including another witness who was present for part of Hockey's beating, that he, Ballinger, participated in that beating. Ballinger's evidence also accorded with the evidence of Ms Sercombe that he was present in the garage when Hockey was struck with weights, that he drove the van containing Hockey's body away from the premises, and that he returned the next day to remove physical evidence of what had occurred. However much Ballinger's evidence differed as to the intent or significance of his acts, there is no question that it supported Ms Sercombe on the fact that those acts occurred.

In the circumstances, there was no detriment to the appellant Ballinger in the trial judge omitting to detail the evidence which was capable of corroborating the evidence of Ms Sercombe. While such a course might be usual, and ordinarily preferable,[49] such a course on this occasion would only have served to emphasise the extent to which Ms Sercombe's evidence against him was corroborated, a disadvantage which the appellant Ballinger doubtless preferred to avoid.

[1] Including s. 12 of the Queensland Code.

[2] [1976] VicRp 53; [1976] V.R. 523, especially at p. 527.

[3] Royall v. R. [1991] HCA 27; (1991) 172 C.L.R. 378, 423. See also McAuliffe v. R. [1995] HCA 37; (1995) 183 C.L.R. 108.

[5] (a) The case against the appellants might have been strengthened if Hockey had been alive when he was placed in the Rous River, but that can be put to one side for present purposes.

(b) Neither appellant contended that a verdict against him or her on the basis of either sub-s. 7(1)(c) or s. 8 was not open on the evidence.

(c) Further, no complaint was made concerning the directions with respect to s. 8 of the Code which continues to cause significant problems: see R. v. Brien and Paterson (C.A. 471 and 478 of 1997, unreported, judgment delivered 28 April 1998). The use of the analogous common law principles in circumstances such as the present has been criticised by the New South Wales Court of Appeal in R. v. Clough (1992) 28 N.S.W.L.R. 396, 400.

[6] Jury Act, 1995, s. 59.

[10] (1994) 75 A.Crim.R. 447.

[15] [1986] VicRp 64; (1986) V.R. 643.

[16] [1996] VicRp 21; (1995) 83 A.Crim.R. 67.

[18] R. v. Clarke and Johnstone [1986] VicRp 64; (1986) V.R. 643, 661; Thatcher v. R. (1987) 32 C.C.C. (3d) 481, 513; Giannetto (1997) 1 Cr.App.R. 1, 4.

[19] (1995) 2 N.Z.L.R. 271.

[20] (1991) 2 N.Z.L.R. 257.

[22] [1997] 1 Crim.App.R., at pp. 8-9.

[23] (1988) 86 Cr.App.R. 18

[24] [1990] Crim.L.R. 880

[27] [1997] 1 Cr.App.R. at p. 4. The later statement (at p. 8 of Giannetto), which is referred to above, that "the jury must be agreed upon the basis on which they find a defendant guilty" must in context, mean tht the jury must be agreed on "the essential elements".

[31] (1984) 79 Cr.App.R. 115.

[33] (1988) 86 Cr.App.R. 18.

[34] R. v. Darby [1982] HCA 32; (1982) 148 C.L.R. 668, 678.

[35] [1997] 1 Cr.App.R., at p. 7. Brown accepted that it would be sufficient if jurors were "able to say that, whichever way one looks at it, the case is proved": see (1984) 79 Cr.App.R., at p. 118.

[36] (1997) 33 C.C.C. (3d) 481, at p. 513.

[37] ([1997] 1 Cr.App.R., at pp. 6-7.

[42] See, e.g., Brien and Paterson (C.A. No. 417 and 478 of 1997, 28 April 1998).

[43] When there is doubt concerning whether an accused was the principal offender or it is accepted that he or she was not, it becomes necessary to test the facts proved in respect of that accused against each provision of the Criminal Code which imposes criminal liability on persons other than the principal offender who are involved in the commission of an offence. If the same provision provides for different consequences in different circumstances (see, for example, s. 8 as explained in R. v. Barlow (1997) 188 C.L.R. 1), the facts proved must be tested against the prerequisites to each of those consequences.

[44] That is all that is required by statute: Jury Act, s. 59.

[48] Because of the manner in which the trial was conducted, including the judge's directions to the jury, it is unnecessary to consider whether s. 8 might have had potential operation if the common unlawful purpose was murder or manslaughter: see, for example, R. v. Jervis [1993] 1 Qd.R. 643, 649-650; Hind and Harwood [1995] QCA 202; (1995) 80 A.Crim.R. 105, 109. It is also unnecessary to consider whether the combination of s. 8 and sub-s. 302(1)(b) of the Code deprived reference to the intent of the person or persons who unlawfully killed Hockey, of practical significance.

[49] R. v. Small (1994) 33 N.S.W.L.R. 575. See also R. v. Lewis [1994] 1 Qd.R. 613.