R v Makin [2004] VSCA 85

5. The only qualifications I would place on my complete agreement with what Callaway, J.A. says has nothing to do with the clear way in which his Honour expounds those reasons. My difficulty is that the law requires such an outcome. The circumstances which lead to the need for a new trial are almost entirely imaginary, if I may say so. With respect, the law as stated in Gilbert v. The Queen[1] seems, at least to my way of thinking, to produce needlessly complicated charges to juries where both they and the accused deserve instructions expressed with clarity and simplicity on the real issues. Many of the authorities were examined in my dissenting judgment in R. v. Kane[2]. That of course was a case which dealt with the need, or otherwise, to leave alternative or "included" offences to the jury in cases other than where murder is primarily charged. There it was accepted by me that, so far as the need to leave the alternative charge of manslaughter to the jury in trials for murder is concerned, this Court was bound by Gilbert and related authorities to leave the alternative count to the jury with proper directions for that purpose: see Kane at paras.[3] and [63]. I would, however, accept Callaway, J.A.'s clear analysis of the issues raised by the present application because I again feel bound by that authority.

8. The reason I have hesitated long and hard before agreeing in the outcome is the curious way in which this particular asserted alternative charge has arisen for consideration. It is curious because what started, and should have finished, as a straightforward trial, in which the Crown alleged the direct infliction of blows by the applicant upon the deceased so as to cause his almost instantaneous death, took on an "Alice through the looking glass" air of unreality because of the large array of alternative ways (I believe five) in which it came to be suggested that particular verdicts could have been brought in involving some form of criminal liability on the part of the applicant.

11. In the circumstances I do not wish, for obvious reasons, to say anything about the merits of either the Crown or the defence case, but the extraordinary complexity largely arose because the Crown chose to open as a basis for a finding of murder an alternative case based, not on any evidence directly to be given by witnesses for the Crown, but on some slight evidential material coming from the accused and from the expectation, which in due course came to pass, that the accused would give a quite different version in evidence in the witness box. Of course, the accused's version was one which absolved him from any responsibility for the killing which he said was carried out solely by a new acquaintance called "Mick" with whom he had chosen to visit the deceased on the night of the alleged murder, but the Crown put a different slant on it.

14. The Crown's alternative case in murder, based as it was on what ultimately was said by the applicant and which is set out in some detail in paragraph [29] of Callaway, J.A.'s judgment, took a number of obvious concessions by the applicant as to his visit to the deceased's house and his presence in other parts of the house during the killing, and turned them into a positive case, presumably based on the jury's refusal to believe certain aspects of the applicant's account, thereby manufacturing a liability based on his complicity in Mick's alleged attack on the deceased. The negative assumptions which the Crown sought to rely upon in this way had to be inferred from the surrounding circumstances, which were used to create an alternative case that the applicant aided and abetted Mick in the killing. The latter case had to concede that there was no plan but that, when the attack by Mick occurred for some undefined purpose, the applicant satisfied one of the three tests laid down by Smith, J. in R. v. Lowery & King (No. 2)[3]. It seems there was no claim that he physically helped the principal to commit the crime: rather he either intentionally encouraged Mick by words and by his presence and behaviour or merely by his presence and behaviour intentionally conveyed to Mick that he was assenting to and concurring in the commission of the murder, each of which allegations the applicant had of course denied.

17. Negative assumptions also had to be made for the required alternative charge of manslaughter which, of course, neither side supported nor even dealt with in addresses. The judge thought it was open to assume that the jury would reject the applicant's assertion that no plan to rob or attack the deceased was devised at the hotel, so that the jury might infer that they agreed to rough him up for their joint or several (but unstated) purposes. But somewhat different negative assumptions are again required for the manslaughter case which applicant's counsel now says should have been put to the jury. Similar assumptions are required to those described for the alternative murder case, but here the jury must be asked to infer that the applicant should only be partially disbelieved, to the extent that he should be taken as knowing of and aiding and abetting some lesser kind of attack on the deceased. Since a knife was savagely used at the end, it would also require the jury to infer that the applicant remained outside the room where death was inflicted and had only some limited knowledge of the extent of the attack as it progressed. If I may say so, with respect, the complexity of inferences of this kind does not make the need for the application of the rule laid down in Gilbert and other cases either realistic or attractive.

20. This series of alternative negative inferences from the applicant's evidence, or most of them, had to be explained by the learned judge to the jury and, but for the omission of the last alternative which is dealt with by Callaway, J.A. in his judgment, the trial judge in his charge explained those intricacies in exceptionally clear and careful terms. The principal Crown case may not have been difficult to explain but the convoluted hypotheses of the alternative Crown case in murder required the judge to deal with a factual case which had never been directly given in evidence. When, added to this, he was compelled also to deal with an alternative charge of manslaughter, as well also with the need, again based on the applicant's case, to deal with another possible alternative charge that he was merely an accessory after the event in assisting to dispose of the murder weapons and the like, one can see what an impossibly complex skein the judge had to weave.

23. It is particularly unfortunate, then, that such an exceptionally well-ordered charge in the circumstances had the flaw identified by Callaway, J.A. In directing the jury as to the manslaughter charge which was alternative to the Crown's alternative murder allegation or allegations, his Honour chose to confine that hypothetical case to one which depended solely on concert and a supposed agreement to inflict injuries on the deceased which were not serious enough to carry the consequence that the primary count of murder could be proved. His Honour did not direct, nor was he in fact asked to, on the basis of the applicant's aiding and abetting Mick in his supposed unannounced attack on the deceased. Unfortunately, whereas the subject of this part of the charge was a supposed plan or a joint criminal enterprise of which there was no evidence, his Honour omitted to deal on the manslaughter alternative with a view of the events at the house on the night which may have borne some greater resemblance to the events recounted by the applicant. Despite the fact that it again depended upon negative inferences, there was some possibility that the jury might accept that the applicant's behaviour in the house that night involved some degree of aiding and abetting in the sense that, again hypothetically, he may have been less clearly disengaged from the attack than he said and may have been watching on in circumstances from which one might infer a degree of encouragement. It is unnecessary to examine the facts further for they are dealt with more than sufficiently by Callaway, J.A. What a jury might have accepted and what one may accept in the future from this morass of allegations and inferences is quite another matter. As the authorities stand, however, I believe that a new trial will have to be conducted. Whether a direction for manslaughter will have to be given, however, and what form it should take, will depend on how the Crown puts its case at the new trial and on how the applicant chooses to defend the case.[4]

26. The second aspect of the application dealt with by Callaway, J.A. is much more a matter of principle. The direction given by Smith, J. in Lowery and King has been used as a model direction for over thirty years, albeit that it can no longer be used literally since the references to felonies and principals in the first and second degree have been overcome by statutory reform and, in relation to the direction as to concert, some qualifications flowing from Johns v. The Queen[5]: cf. McAuliffe v. The Queen[6]. See also Morgan[7].

29. To my knowledge the direction of Smith, J. as to the three ways in which aiding and abetting may be proved has not been queried in this State, or elsewhere, except arguably by the decision in R. v. Phan[8]. Even in Phan, the gravamen of the Court's conclusion was that mere acquiescence in the commission of a crime by another is not sufficient to amount to aiding and abetting, except in most unusual circumstances.

32. The assumption of counsel in his argument on this application was that the learned judge, by giving the now conventional direction, had effectively allowed the jury to reach a conclusion of guilt by permitting them to rely solely on the applicant's acquiescence in the supposed perpetrator's activities. That is not so, if one looks to what the judge actually said in his directions, for at least twice he directed them that mere acquiescence was not sufficient. But counsel said that, by repeating the third head of the Lowery and King direction, the judge had effectively directed them that it was possible to find guilt on mere mental acceptance of, or assent to, what was done by "Mick". The learned judge, however, made the contrary proposition clear when he directed them and gave a series of examples. His Honour said in each of those examples that there had to be "something more than just mere presence". The present case was treated by the judge as a "variation" of direct and intentional encouragement which he described as the second head of aiding and abetting.

35. Counsel nevertheless contended that any direction based on the third head of Lowery and King was incorrect and in this he relied on Phan. Phan was a judgment which principally criticised the reasoning of Cussen, A.C.J. in R. v. Russell[9] and Lowery and King was the subject of only a passing reference, which did not directly discuss the third head of the standard direction. I would agree with Callaway, J.A. that it is not appropriate for a court of three to reconsider what was said in Lowery and King on this subject.

38. Nevertheless passive acquiescence is not ordinarily a basis for finding a person guilty on the basis of aiding and abetting, but neither do I think that Smith, J. intended that it should. Certainly the learned judge in the present case did not treat his charge as permitting mere acquiescence as a basis and he said so to the jury. Nor do I think that Cussen, A.C.J. thought that ordinarily mere acquiescence was sufficient. No doubt what he said was influential in Smith, J.'s formulating the charge in Lowery and King. Russell was a very special case involving the accused's special responsibility for children, just as the difficult leading case of R. v. Coney[10] dealt with a special set of circumstances, that of presence at an illegal prize fight. It is undesirable to say anything further about those special cases which provide exceptions to the general rule and permit acquiescence of a kind to be left to the jury as a basis for finding guilt. They are dealt with, if not conclusively, at least comprehensively, in the leading textbooks, as well as the specialised works of Gillies: The Law of Criminal Complicity (1980) and K.J.M. Smith: A Modern Treatise on the Law of Criminal Complicity (1991).

41. I would agree with Callaway, J.A. that it is undesirable to say much more on the precise formulation of what has been treated (subject to certain obvious exceptions) as a model charge for aiding and abetting.[11] I would add only this. The third head requires an "intentional conveying" to the principal perpetrator that the accused is "assenting to and concurring in his commission of the crime". One might have thought that would be one kind of encouragement but one must allow for the fact that the second head involves "intentionally encouraging" the accused (also) by words or by presence and behaviour to commit the charged offence. Assistance is dealt with in the first head in terms of "intentionally helping" the perpetrator to commit the crime, so that I would be inclined to believe that the third head involves a direct or indirect expression of willingness to assist as opposed to provision of actual assistance. One may argue that this is merely a form of "encouragement" and so it is, but it is less direct than what appears in the second head and seems more implicit than explicit. In short it may connote a degree of passive participation in the charged offence, of a kind which suggests willingness to assist, even though the need for assistance may be unlikely.

44. Moreover the words "assenting to and concurring in his commission of the crime" connote not merely passive acquiescence ("assenting") in the sense of approval of the perpetrator's behaviour but in addition a "concurring" in the carrying out of the offence. I have been unable to trace the source from which Smith, J. took this latter term for the present purpose. I would assume that his Honour meant more than "assenting" and something closer to the secondary meaning of "concurring", that is, of combining or cooperating with the accused for the relevant purpose.[12] This might appear to be similar in concept to concert or "joint criminal enterprise", as it is described in other jurisdictions, so recently analysed by Hayne, J. in Gillard v. The Queen[13]; but that form of liability or mode of participation in an offence involves an agreement or understanding between parties

such that there is a mutuality and an element at least of joint understanding before the perpetration of the offence. "Concurring" here connotes only a unilateral agreement with what the principal offender is doing albeit that the direction requires that it should be "intentionally conveyed" to the perpetrator by words or conduct. It does not seem to require the genuine consensus required for concert or a joint criminal enterprise but merely the direct conveying of agreement such as would intimate that the aider and abettor supported what was being done and would be willing to provide some help if necessary. There seems to be no need for proof of the reaction of the main perpetrator.[14]

48. It occurs to me that the distinctions here drawn as to the use of terms such as "assent" and "concur" may be too subtle for modern juries, having regard to recent educational methods. The direction might, in an appropriate case, be reconsidered so as make clear the various ways in which an accused may "aid and abet"[15] the perpetrator of a crime. However, no error has here been shown.

51. For these reasons ground 7 has not been made out, but the application and appeal should be allowed on the basis of ground 8, as Callaway, J.A. has demonstrated.

56. With a reluctance which I shall endeavour to explain, I too agree with what Callaway, J.A. has written, save that, unlike his Honour, I think that there is force in Mr. McArdle's submission that the direction as to manslaughter by concert was not less appropriate than aiding and abetting. After all, the existence of a common enterprise was to be inferred, as was any aiding and abetting, only from the applicant's own version of events which was not only otherwise unsupported; it was scarcely specific on relevant matters. For example, his leaving the room after seeing

some four blows struck, and witnessing another two as he stood in the corridor, could, I think, have been regarded by a jury as a departure, not to avoid assisting the assailant (as the applicant would have it), but to avoid assisting the victim. Given the inferences that had to be drawn and the particular circumstances of this case, the evidential differences between the case for manslaughter by concert and that for manslaughter by aiding and abetting might have been little indeed.

60. My reluctance stems from the considerations which have been canvassed by Ormiston, J.A.. I share his Honour's view about the difficulties facing the trial judge when bound to put to the jury a case of manslaughter based more on speculation than on evidence. Indeed, I go further. If the reason for directing the jury as to manslaughter, in a case so clear as this one, is the possibility that the jury might wish, for reasons of their own, to adopt some middle ground, it must be at least arguable that that possibility was left to them, even if, as Mr. Boyce contended, the alternative of manslaughter by concert was less plausible than manslaughter by aiding and abetting.

63. But the other members of the Court are agreed as to the result and nothing would be gained by further exploring the difficulties and the prospect of a retrial makes it unwise. For the reasons given by the other members of the Court I am persuaded that ground 8 has been made out, the appeal should be allowed and a re-trial ordered. I agree, too, in what Ormiston, J.A has said about ground 7.

68. The applicant, who is now aged 37, was presented in the Supreme Court on one count of murder. After a trial occupying 12 days the jury returned a verdict of guilty. The applicant admitted 11 previous convictions from five court appearances between 5th July 1986 and 12th October 1993. Following a plea for leniency on his behalf, the learned trial judge sentenced him to 19 years' imprisonment with a non-parole period of 15 years.

71. Notice of application for leave to appeal against conviction was given within the 14 days limited by s.572 of the Crimes Act 1958. The grounds specified were:

"1. That the verdict was unsafe and unsatisfactory. 2. That the verdict was inconsistent with the evidence."

Both those grounds were described by the judge in his forthright report pursuant to Rule 2.27 of the Supreme Court (Criminal Procedure) Rules 1998 as "nonsense". Mr Boyce abandoned them, save for arguing, under cover of ground 1, that there had been an aggregation of defects of the kind discussed by Batt, J.A. in R. v. Kotzmann[16]. For reasons that will appear later, it is unnecessary to say anything further about that submission.

76. Counsel sought leave to add six new grounds. Two applications, relating to proposed grounds 3 to 6, were made before the hearing and two further applications, relating to proposed grounds 7 and 8, were made in running. It is fair to record that counsel was briefed only just before the hearing. The proposed grounds read:

"3. The learned trial judge erred by inviting the jury to find the applicant guilty on the basis that he had aided and abetted a principal offender in the killing of the deceased. 4. The learned trial judge erred by failing to adequately relate to the jury evidence that was relevant to the issue of whether the applicant had committed the offence described in section 325(1) of the Crimes Act 1958. 5. In the alternative, the learned trial judge erred by failing to adequately relate to the jury evidence that was relevant to the issue of whether the applicant aided and abetted a principal offender in the crime of murder. 6. The learned trial judge erred by instructing the jury only to consider whether the applicant was guilty of manslaughter if they had first acquitted him of murder, and only to consider whether the applicant was guilty of being an accessory after the fact of murder after they had first acquitted him of murder and manslaughter. 7. The learned trial judge erred by directing the jury that they could find the applicant guilty on the basis that he intentionally conveyed to the principal by words or by his presence and behaviour that he was assenting to and concurring in the principal's commission of the crime.

PARTICULARS

The judge failed to direct the jury that the non accidental presence of the appellant and his acquiescence in or assent to what occurred would not be enough to establish guilt, unless the Crown had established that such assent or acquiescence amounted to intentional encouragement or assistance. 8. In the alternative, the learned trial judge erred by failing to leave to the jury as an alternative verdict to murder that the applicant committed manslaughter by aiding and abetting a principal offender in the commission of an unlawful and dangerous act resulting in death."

80. The Court permitted argument to be put on all the proposed grounds but, because proposed ground 8 came so late, adjourned the hearing of the application for leave to appeal to give the Crown an adequate opportunity to respond. We reserved our ruling on each of the applications to add new grounds. Accordingly grounds 3 to 8 remain proposed grounds, but it will be convenient in the course of these reasons to refer to them simply as "grounds". The ruling I propose on the applications appears at [44].

83. Before turning to counsel's submissions, I shall say something briefly about the evidence. The deceased, Brian Wayne Freake, was found dead in his home at Preston on 8th March 1998. The cause of death was identified as incised injuries to the neck involving vital structures including major blood vessels, the larynx and oesophagus. The victim had also suffered multiple superficial injuries to the head and neck, having been beaten repeatedly with a baton before having his throat slit with a knife. The applicant was interviewed by the police in the course of their investigations in 1998. He admitted knowing the deceased but denied any knowledge of the events surrounding his death.

86. Just before midnight on 30th August 2000 the applicant telephoned the Darwin police and said that he had murdered someone. Two interviews followed, in the course of which he confessed to the murder of Brian Freake. On 1st September he was interviewed by members of the Victoria Police Homicide Squad who had flown to Darwin to seek his extradition from the Northern Territory. The applicant made full admissions, exemplified by the following questions and answers:

"Can you tell me how - how it came about and how - how you, in fact, came to kill Brian Freake?---Yeah. I owed him $50 for a gram of speed which I had owed him for a long time because I stopped usin' and I went to see him and I - there wasn't no premeditated or anything. I just went to see him to sort out this $50 thing and I spoke to him and told him how I wasn't gonna pay him because of the fact that the speed was no good. He got off his chair, hit me and we started fightin'. I pulled a baton from my back pocket and started hittin' him over the head. Okay. Yeah, go on?---Well, I just kept hittin' him until - well, until he was - I didn't know whether he was dead or knocked out, but to make sure, I got a knife from the kitchen drawer and cut his throat. Then what happened?---I took - I left the house and took everything - well, I went down to the Yarra River in Fairfield, put it all in a white paper - plastic bag, put a brick in the plastic bag and threw it in the river and went home."

90. The officer in charge of the Victoria Police interview was Detective Senior Sergeant Collins. Towards the end of the interview he had asked the applicant whether there was anything else he wished to say, to which the applicant replied, "Not on tape, no." When he was asked what he meant by that, he said that he had no more to say. At the trial Detective Senior Sergeant Collins gave evidence that, when he was packing up the tapes, he asked the applicant again what he had meant by that answer. This time the applicant replied, "I didn't kill him". The witness continued:

"I said: `What do you mean by that'?---He said: `I am not saying any more, I don't want to talk about it, I will have to wear the lot.' I said: `You have had an opportunity to tell us everything. Why would you tell us you did it if you didn't?' He said: `I'll be killed if I said anything.' I said: `From what you said I have no doubt that you were there.' He said; `I was there all right but I didn't kill him.' I said: `Who did kill him then?' He said: `I'm not saying.' I said: `If you didn't kill him, why would you say you did?' He said: `Because I'd be dead. I'm not saying anything more.' I said: `You would have to be mad to say you killed Freake if you didn't.' He said: `I can't say any more but I did look for his stook. I was at the pub with this bloke and he said I have to see Freake. I said that - I said that I did too and I would go along with him. I was just there.' I said: `You had better think about this carefully. You have raised the issue, now I have to deal with it.' He said: `I'm not saying anything else.'"

94. That answer is important because, at the trial, the applicant resiled from the confessions and said that he had gone to the victim's house in company with a man called "Mick" and had been present when Mick began what turned out to be a murderous assault.

97. The following was agreed by counsel to be an accurate summary of the applicant's evidence[17]:

In essence, the applicant's version of events given in his evidence in chief was that on the day of the killing, he went to the pub at about 10.00 a.m. A man named Mick arrived at the pub at about 11.00 - 11.30 a.m. The applicant drank with the man for about two-and-a-half hours. They both left to go to the deceased's house at about 2.00 p.m. As they were leaving the pub, Mick rang the deceased to let him know that he and the applicant were coming. The man was looking to pick up some "speed", and the applicant "had an issue" with the deceased about some bad speed. The applicant owed the deceased $50 for some speed that the applicant had purchased which the applicant believed to be of inferior quality. The applicant went to the deceased's house with no intention of hurting the deceased. He and the other man travelled to the deceased's house in the other man's car. As they travelled they talked of getting some speed and possibly injecting it. They parked the car on the other side of the road from the deceased's house and down a side street. They walked to the deceased's house and Mick knocked at the door. The deceased opened the door and let the two in. The deceased recognised the applicant and Mick. All three then walked into the lounge room. The applicant sat under the window, the deceased sat close to the heater and Mick leaned up against the mantelpiece near the heater. The applicant was talking to the deceased about the $50 debt that he didn't want to pay because of the inferior quality of the drugs that he had purchased. The deceased's reply was: "Well, you took it, you used it, you have got to pay for it." There was no animosity in the discussion. There had earlier been some discussion about horse racing, how the deceased had been going with his betting and the poker machines. The applicant had an interest in horse racing because he had been a jockey. The applicant was offered a beer but refused it. The conversation then turned from the applicant to the other two. As the deceased and Mick were talking, Mick just started belting the deceased. Mick pulled something out of his pocket and started hitting him over the head. The applicant had not arrived with any weapon. The weapon used by Mick was between 20-30 cm long. The applicant saw four blows and then left the room. The deceased was seated in a chair when he was struck. While the deceased was being struck, the applicant said to Mick: "What are you fuckin' doing?" The deceased raised his hands and said: "Yes, what are you doing?" But Mick kept hitting the deceased. The applicant left the room because he was shocked and didn't know "what the hell was happening." At first the applicant stood in the hallway, and from the hallway saw another two blows. The applicant then walked off into the deceased's bedroom (the front bedroom of the house). While in the bedroom, the applicant tried to show Mick that he was rifling through things and looking for things so that he "wouldn't suspect me of anything". The applicant went to the bedroom drawer, opened one drawer, quickly looked through that and then just walked around in circles. The applicant wanted to show Mick that he was doing something because Mick was, at the time, yelling out to the applicant for the applicant to help him and give him a hand in the lounge room. From the bedroom, the applicant could hear the beating that was going on in the lounge room. The applicant then went back into the hallway. He went down into the hallway, towards the kitchen, "poked around" in the kitchen and then walked into a bedroom that was adjacent to the kitchen. As the applicant was leaving the kitchen dining area he saw Mick come through to the kitchen, grab something, and then walk back out into the lounge room. At the time, the applicant didn't know what it was that had been grabbed. The applicant was in the bedroom "just waiting for it to all end". After that, the applicant heard no more of the altercation, he just heard Mick yell out: "Come on, we are going." It seemed to the applicant that Mick's voice was coming from the lounge room. The applicant then walked towards the lounge room. At that point he didn't know precisely what had happened. He knew that the deceased had been bashed, but didn't know for what reason. Mick and the applicant then left the house and walked back to the car. When they got outside the front door, the applicant noticed that Mick had weapons (a knife and a baton) sticking out of his pocket that weren't covered by his shirt. The applicant told Mick to cover the weapons. The applicant said that he didn't run away because "... [he] had come that far, ... [he] had seen ... what he had done and ... [he] ... was in fear for ... [himself] ..., really." Once in the car, Mick told the applicant that he had made sure that the deceased was dead by cutting the deceased's throat. The applicant then helped Mick find a change of clothing and dispose of the weapons. When cross-examined and asked why the killing took place, he said "I can tell you after the event why, but I didn't - I couldn't tell you at the time why." There was nothing said prior to the assault taking place. It was brutal, unpleasant and ugly and the applicant could see no justification for it. The applicant didn't try and stop the assault because Mick had a bar in his hand and "I wasn't going to wear the next hit." The applicant didn't run away because he was in shock and confused. He pretended to conduct a search to cover his own back. He didn't seek help because he didn't wish to put himself at risk, i.e. if he went to the police and informed on Mick that would put him "in a very sticky situation." In answer to questions from his Honour, the applicant said that [he] used his T-shirt to open the drawer in the deceased's bedroom. This was so as not to leave any fingerprints.

101. The Crown invited the jury to convict the applicant of murder either as the principal offender or, if they accepted some or all of his evidence, as having aided and abetted "Mick". Defence counsel contended that the applicant should be acquitted of murder but conceded that he should be convicted of the statutory offence created by s.325 of the Crimes Act. (The judge found it convenient, and it will sometimes be convenient in these reasons, to refer to that offence as being an accessory after the fact. It is, of course, distinct from the common law.) His Honour directed the jury about a further possibility, namely that the applicant was guilty of manslaughter on the basis that he acted in concert with Mick.

105. Under cover of grounds 3 and 5, Mr Boyce submitted that the judge should have taken the alternative version of the Crown case away from the jury. In other words, his Honour should have directed them that they could not lawfully convict the applicant of murder by aiding and abetting. Such a direction may be given only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.[18] The judge was not asked to take that course. On the contrary, counsel for the applicant, in the course of taking other exceptions, said twice that he took no exception to the direction that had been given about aiding and abetting. Unfortunately, however, in my opinion, there will have to be a new trial. We do not know what course the evidence will take at that trial or whether the Crown will persevere in its alternative case. Given the absence of exception at the first trial and the uncertain course of the new trial, it is unnecessary and undesirable to say anything further about these two grounds.

108. There was similarly no exception to the way in which the judge related the elements of being an accessory after the fact to the evidence or to those portions of the charge which, it was submitted, restricted the freedom of the jury to organize their individual processes of reasoning, and their discussions as a group, in whatever manner appeared to them to be convenient.[19] This Court has often said that failure to take exception is a matter of importance. In the present case experienced defence counsel was satisfied with the way in which the judge explained s.325 to the jury and evidently understood the impugned passages not as impermissible restrictions on their reasoning or discussions but as explanations of the alternatives to murder available under s.421(1)(a) and (c) of the Crimes Act. There is nothing in grounds 4 and 6.

112. It is convenient to deal with this ground before ground 7. It will be recalled that the judge directed the jury about the possibility that the applicant was guilty of manslaughter on the basis that he acted in concert with Mick. There is some tension between that direction and the fact that the Crown had not suggested concert: the alternative version of the Crown case was that the applicant was guilty of murder on the basis that he aided and abetted Mick. The essence of ground 8 is that the middle position that should have been left to the jury between the Crown's alternative case of murder and s.325 of the Crimes Act was not manslaughter by concert but manslaughter by aiding and abetting and that their attention was distracted by the direction about manslaughter by concert.

115. As a general rule, a criminal appeal must be decided on the assumption that the jury complied with the judge's directions, but there have always been exceptions or apparent exceptions. Presentments have been severed in the belief that no judicial direction could overcome the prejudice of a single trial in relation to multiple complainants.[20] An appeal may be allowed where unduly prejudicial evidence was wrongly admitted and the prejudice could not be overcome by a direction. A jury may be discharged if an event occurs in the course of the trial that cannot be remedied by instructions from the Bench. The exception to which ground 8 is directed, if it is an exception,[21]

is that explained by the High Court in Gilbert v. R.[22] and applied more recently in Gillard v. R.[23] Gilbert v. R. and other authorities were examined by this Court in R. v. Kane.[24] There is no need to examine them again.

120. The Crown's alternative case was that the applicant should be found guilty of murder by aiding and abetting Mick. As will shortly appear, I consider that a direction on manslaughter by aiding and abetting was also required. The jury might have considered that the applicant, by his conduct, encouraged Mick to bash the deceased but have entertained a reasonable doubt as to whether he encouraged Mick to kill the deceased or inflict really serious physical injury on him. In my opinion, a direction on manslaughter by aiding and abetting would have been more appropriate, having regard to the Crown case and the evidence, than a direction on manslaughter by concert. It is unnecessary to decide whether the latter was required too.

123. Mr Boyce submitted that manslaughter by aiding and abetting should have been left to the jury instead of their being left with a choice between murder by aiding and abetting and being an accessory after the fact, coupled solely with a direction about a different and less plausible form of manslaughter that was inconsistent with the way the case had been argued. To put the submission another way, the jury were told that manslaughter was open only if there was concert and that was a misdirection which disadvantaged the applicant. I would uphold that submission. Manslaughter by concert was a departure from the way the case had been presented to the jury. I do not accept Mr McArdle's submission that it was more, not less, plausible than manslaughter by aiding and abetting.

126. The authorities referred to in [34] above contemplate that a jury presented with a middle position may adopt it even if, strictly and logically obeying the judge's directions, they would not do so. On one view that is an exception to the general rule referred to at the beginning of that paragraph. On another view, endorsed by Gleeson, C.J. and Gummow, J. in Gilbert's case[25], there is a distinction between an assumption that juries follow the directions they are given by trial judges and an assumption that their decision-making is unaffected by matters of possible prejudice. Applying those authorities, I think the conclusion is inescapable that the applicant was disadvantaged by the omission to direct the jury's attention to the alternative of manslaughter by aiding and abetting, which was more likely to be understood and accepted by them than manslaughter by concert. The proviso cannot be applied, for the reasons given in Gillard v.R.[26]

129. I would therefore uphold ground 8, quash the applicant's conviction and direct a new trial to be had. Whether the jury should be directed at that trial about manslaughter by aiding and abetting or manslaughter by concert or neither or both will depend on the evidence and the course of the trial, for example whether the Crown perseveres with an alternative case based on the applicant's version of events and, if so, the way in which that case is formulated.[27]

133. It is unnecessary to decide this ground but, if there is to be a new trial, it is desirable to say something about it in case the same issue arises again.

136. In R. v. Lowery and King (No. 2)[28] Smith, J. charged the jury as follows:

"Even if there is no prior understanding or arrangement that the crime shall be committed a person is guilty in law of a crime committed by the hand of another - another whom the law calls the principal in the first degree - if the person is present when the crime is committed and aids and abets the commission of it. In such circumstances he is called the principal in the second degree and he is equally guilty of the crime with the principal in the first degree. Aiding and abetting in this connexion means doing one or other of these three things while aware that the crime is being committed: first, intentionally helping the principal in the first degree to commit the crime, or, secondly, intentionally encouraging him by words or by your presence and behaviour to commit it, or, thirdly, intentionally conveying to him by words or by your presence and behaviour that you are assenting to and concurring in his commission of the crime. A person present at the scene of the crime and so aiding and abetting a person to commit a crime is in law a principal in the second degree and is guilty in law of the crime committed by the hand of the principal of the first degree."

Since the abolition of the distinction between felonies and misdemeanours, a principal in the second degree to what used to be a felony is usually referred to simply as an aider and abettor.

142. The gravamen of ground 7 was that, on the evidence in this case, there was a risk that the jury might convict the applicant solely on the basis that he intentionally conveyed his assent or concurrence to Mick even if that was not intended to assist or encourage him. Reliance was placed, among other authorities[29], on the discussion of

R. v. Lowery and King (No. 2) and R. v. Russell[30] by Wood, C.J. at C.L. in R. v. Phan[31]. His Honour concluded that there was no general principle by which assent or acquiescence, without more, would give rise to liability and that assent or acquiescence must amount "to that degree of encouragement or assistance as would constitute [the accused] a principal in the second degree".[32]

146. Any serious reconsideration of R. v. Lowery and King (No. 2) would be better undertaken by a court of five. Directions in conformity with the charge in that case have been given in this State on countless occasions[33]. It is important to notice that, when they are, the jury are not told that assent and concurrence are enough on their own. They are directed that assent and concurrence must be intentionally conveyed to the principal offender. It will be a rare case where that does not amount to knowing encouragement.[34] As Serjeant Hawkins said in a passage quoted by Cussen, A.C.J. in R. v. Russell: [35]

"Also those who by accident are barely present when a Felony is committed, and are merely passive, and neither any Way encourage it, nor endeavour to hinder it, nor to apprehend the Offenders, shall neither be adjudged Principals or Accessaries; yet if they be of full Age, they are highly punishable by Fine and Imprisonment for their Negligence, both in not endeavouring to prevent the Felony, and in not endeavouring to apprehend the Offender. And if they any way shewed an Assent to the Felony, it seems, That they may be punished as Principals in it; because the shewing such an Assent cou'd not but give Encouragement to it."[36] (Emphasis added.)

150. It is unlikely that the conventional direction was inapt in this case and unlikely that it would be inapt at a new trial.

153. I propose orders in accordance with the following minutes:

1. Refuse leave to add the proposed grounds 3, 4, 5 and 6.

2. Grant leave to add the proposed grounds 7 and 8.

3. Grant leave to appeal against conviction, treat the appeal as instituted and heard instanter and allow the appeal.

4. Quash the conviction sustained by the appellant and the sentence passed thereon.

[2] [2001] VSCA 153; (2001) 3 V.R. 542.

[3] [1972] VicRp 63; [1972] V.R. 560 at 561, set out in the judgment of Callaway, J.A. at para.[40].

[4] It was not suggested at the trial or on appeal that manslaughter should have been put to the jury as an alternative to the Crown's primary case, i.e. on the basis of some lesser intent if he were the only participant.

[5] [1980] HCA 3; (1980) 143 C.L.R. 108.

[6] [1995] HCA 37; (1995) 183 C.L.R. 108 at 114.

[7] [1994] VicRp 41; (1993) 70 A.Crim.R. 340 at 343-345.

[8] [2001] NSWCCA 29; (2001) 53 N.S.W.L.R. 480 (C.C.A., N.S.W.).

[9] [1933] VicLawRp 7; [1933] V.L.R. 59.

[10] [1882] 8 Q.B.D. 534.

[11] It is set out in para.[40] of Callaway, J.A.'s judgment.

[12] See e.g. Macquarie Dictionary, 3rd ed. (rev.) p.405, second meaning.

[13] [2003] HCA 64; (2003) 78 A.L.J.R. 64 at pp.82-83 paras.[108]-[112], with whom Gleeson, C.J., Gummow and Callinan, JJ. agreed.

[14] See Gillies: Criminal Law (4th ed.) pp.162-163.

[15] Those simple, old-fashioned words might themselves be changed to, say, "assist or encourage", but the flexibility of the existing expression might thereby be lost.

[16] [1999] VSCA 27; [1999] 2 V.R. 123 at [114].

[17] I have edited it in immaterial respects.

[18] Doney v R. [1990] HCA 51; (1990) 171 C.L.R. 207 at 212-215.

[19] Stanton v. R. [2003] HCA 29; (2003) 77 A.L.J.R. 1151 at [35].

[20] See, for example, Sutton v. R. [1984] HCA 5; (1984) 152 C.L.R. 528 at 542 and De Jesus v. R. [1986] HCA 65; (1986) 61 A.L.J.R. 1. In the case of sexual offences the position is now governed by Crimes Act 1958, s.372(3AA) and (3AB) as explained in R. v. TJB [1998] 4 V.R. 621 and R. v. KRA [1999] VSCA 157; [1999] 2 V.R. 708.

[23] [2003] HCA 64; (2003) 78 A.L.J.R. 64.

[24] [2001] VSCA 153; (2001) 3 V.R. 542.

[25] At [13]. See also Callinan, J. at [96] and [101] and R. v. Kane at [111] and [115].

[26] At [27]-[29] per Gleeson, C.J. and Callinan, J., [33]-[34] per Gummow, J., [94]-[97] per Kirby, J. and [133]-[134] per Hayne, J. In Gillard's case it was defence counsel who had persuaded the judge not to leave manslaughter to the jury. A new trial was nevertheless directed.

[27] Compare R. v. Kane at [106] and [116].

[28] [1972] VicRp 63; [1972] V.R. 560 at 561-562.

[29] They included R. v. Coney (1882) 8 Q.B.D. 534; R. v. Allen [1965] 1 Q.B. 130; R. v. Clarkson [1971] 1 W.L.R. 1402 and Giorgianni v. R. [1985] HCA 29; (1985) 156 C.L.R. 473.

[30] [1933] VicLawRp 7; [1933] V.L.R. 59.

[31] [2001] NSWCCA 29; (2001) 53 N.S.W.L.R. 480.

[33] Compare the standard directions in New South Wales set out by Smart, .A.J. in R. v. Phan at [104].

[34] Intentionally conveying assent and concurrence, knowing that that will encourage the principal offender, is surely enough to satisfy the mental element of aiding and abetting, even if mere recklessness is not sufficient: cf. Giorgianni v. R. at 506-507.

[36] Hawkins, A Treatise of the Pleas of the Crown, vol. 2 (1721), ch. 29, sect. 10.