R v Marshall [1995] QCA 515

CATCHWORDS: CRIMINAL LAW - MURDER; whether trial judge put an argument in favour of the prosecution which was not put by the prosecution and which the defence could neither answer nor anticipate; whether appellant party to plan to harm or kill; whether trial judge properly put the defence case in his summing up; whether jury clearly informed of the findings it must make before an inference of guilt can be drawn.

Sections 7 and 8 Criminal Code

Counsel: Mr. N. Macgroarty, with him Mr. A. Donaldson for the appellant

Solicitors: A. W. Bale & Son for the appellant

Queensland Director of Public Prosecutions for the respondent

REASONS FOR JUDGMENT - DAVIES J.A. AND DEMACK J.

At 2.17 p.m. on 29 September 1993, fire service officers received a call to attend a burning motor car in Chelsea Road, Ransome. While extinguishing the fire, Officer Bertram saw a body in the back seat.

A post-mortem examination by Dr. Naylor revealed, among other injuries, two lacerations to the scalp, with underlying severe damage to the skull. Dr. Naylor expressed the opinion that the associated damage to the brain was sufficient to cause death. The body had been severely burnt but there was no soot in the airways. There was a low level of carbon monoxide in the deceased's blood.

Police investigation established that the deceased was Darryl Murray. Police investigation also established that Darryl Murray had been struck two blows to the head by Trevor Burridge. He used an axe. Burridge pleaded guilty to murder.

It was also established that the blows were struck when Murray and Burridge were in a bedroom in a house at 4 Sandpiper Street, Wellington Point. At the time, that house was the residence of Anita Lee. The bedroom where the blows were struck was that of Anita Lee's five-year-old daughter, Danielle.

On the morning of 29 September 1993, there were a number of people in the house at 4 Sandpiper Street including the appellant and Frank Keenan. These two men were also charged with the murder of Murray. The jury failed to agree upon a verdict in respect of Keenan. The appellant was found guilty, and has appealed against that conviction.

The trial occupied 14 days. The summing up is recorded on more than 100 pages of the record book, even though the passages of evidence which the experienced trial Judge read to the jury have not been printed as part of the summing up. While there is complaint in the grounds of appeal that the summing up was not balanced, that was not argued. Once the summing up is read, it is apparent that it is both clear and balanced.

The grounds of appeal chiefly argued before us were that the trial Judge failed properly to put the defence case; and that the trial Judge put argument in favour of the Crown which was not put by the Crown Prosecutor which the defence could neither answer nor anticipate.

To consider these grounds, it is helpful to analyse the summing up briefly, as follows:

A. General observations about jury function pp.746-760

B. Discussion of murder and manslaughter pp.760-768

C. Discussion of sections 7 and 8 pp.768-775

D. Evidence relating to both accused pp.777-782

E. Evidence against Keenan pp.782-813

F. Evidence against Appellant pp.814-833

G. How Prosecution case formulated pp.834-840

H. Defence submissions for Appellant pp.840-843

I. Defence submissions for Keenan pp.843-847

J. Final directions pp.847-862

This analysis shows that the summing up followed the usual pattern and was designed to put the issues clearly before the jury. The analysis does not contain a detailed consideration of the way in which the questions of the credibility of the prosecution witnesses were dealt with in the lengthy discussion of the evidence. It is sufficient to say that this was an important part of the defence submissions at the trial, and the summing up made the issues clear.

Two sections of the summing up must be referred to in more detail, first, the directions on sections 7 and 8, and secondly, the formulation of the prosecution case.

As to sections 7 and 8, the jury were left with three possible approaches:

a. that the accused knew that Burridge was going to murder Murray and they aided by encouragement.

b. That there was a plan to murder Murray in the sense that there was an intention to kill or do grievous bodily harm, and that the accused were parties to the plan.

c. That there was a plan to inflict harm on Murray and that murder, as defined, was a probable consequence of the plan.

As to the formulation of the prosecution case, Mr. Rutledge had relied on six matters, as well as the evidence of the events surrounding the killing.

1. On 23 September 1993, the appellant was arrested on a drugs charge and he expressed the opinion to his girlfriend, Brenda Riddell, that Murray had informed on him. He also made remarks to detectives which suggested this belief, and expressed a desire for revenge.

2. On 29 September 1993, the appellant left a message on Keenan's "beeper" at 9.09 a.m., saying, "Frank please ring Rick (the appellant). Darryl is on his way over. I need my piece."

3. On the morning of 29 September 1993, a taxi driver took a man, who matched the description of Murray, to the street where the appellant lived. Later in the morning the same taxi driver was called to the appellant's residence, where three men, including the one who had previously travelled in the cab, entered his cab, and were driven to 4 Sandpiper Street.

4. At 4 Sandpiper Street, the appellant told Anita Lee that they had the "nark" who got them raided. There was discussion about giving him a touch up and about injecting him with battery acid.

5. After Murray had been struck and appeared to be dead, Anita Lee asked the appellant why he did it and she said that his answer was, "He just ruined my life, so I ruined his".

6. The evidence showed that the appellant and Keenan set fire to the car in which Murray's body had been left.

This summary and the directions on sections 7 and 8 raise a question concerning the direction about aiding by encouragement. The summary of the prosecution case would support a verdict of murder in respect of the appellant either on the basis that there was a plan to harm Murray, either with the intention of killing him or doing him grievous bodily harm, or there was a plan to harm him which carried the probable consequence of murder. It is not so clear that there was evidence of aiding by encouragement.

However, that aspect of the summing up was the subject of a re-direction, sought by the appellant's counsel, in the following terms:

"The final matter that I just want to mention to you was that you will recall I gave you some directions about the concept of aiding by encouragement. Well now, one view of the matter - and it is submitted to you by defence counsel that it is the proper view - is that Burridge was in the room on his own at the time when the blows were struck. Now, it is always a question of degree as to what constitutes encouragement in a case. As I tried to explain to you, that there was a whole spectrum of possibilities. What you have to be satisfied of, if you rely on encouragement at the end of the day, is that the person who is alleged to be the person giving the encouragement did, in fact, give encouragement and that what Burridge did was not just something that he did off his own bat without any encouragement by the alleged other offender."

Thus, in the last part of the re-directions, there was a clear reminder of the defence contention that Burridge was the only person with Murray when the fatal blows were struck.

It is obvious that the question of when Burridge got the axe is significant. In the course of his summary of the formulation of the prosecution case, his Honour said:

"I should say this, I suppose: my recollection of it is that there is no actual evidence as to when Burridge got the axe. No-one seems to have claimed to see him go out and get it and bring it back in, and the assumption was made in defence counsel's addresses, or at least one of them, that he slipped out and got it some time during the events of the morning. It is equally open on the evidence, I suppose, although it is a matter for you, that it was already somewhere inside and I just remind you again that there were two calls from Marshall's mobile phone on the morning on 29 September to Lee's home and that Lee, Chapman and Williams gave no evidence that they had received phone calls."

The remark in the third sentence is said to put an argument in favour of the prosecution not put by Mr. Rutledge which the defence could neither anticipate or answer. No re-direction along those lines was sought.

To put the matter in context, neither accused gave evidence or called evidence, so Mr. Rutledge addressed first. The comment was then a response to defence counsel's submissions. It was not part of the prosecution case, although it was made by his Honour in the course of his remarks about the formulation of the prosecution case. The comment on its own makes very little sense, and so some reference to the evidence must be made.

There was evidence that the appellant owned a mobile phone. An employee of Telecom produced the records of calls made from that phone on 29 September 1993. Two calls were made to the telephone service at 4 Sandpiper Street, one at 9.40 a.m. and the other at 10.05 a.m. There was no direct evidence about the whereabouts of the mobile phone at that time. Anita Lee said the appellant had a mobile phone with him, apparently something she noticed when he arrived just after 10.00 a.m. Wayne Martin, who arrived at 4 Sandpiper Street after the four men, noticed that the appellant had a mobile phone.

Reference has already been made to the message the appellant left on Keenan's pager. This was done by phoning Link Telecommunications. The phone number for that organization was not given by the sales consultant, Bernadette Draper, but in the records relating to the appellant's mobile phone, a call was made to Sky Page both at 9.44 p.m. on 28 September and at 9.08 a.m. on 29 September. In Bernadette Draper's evidence it is said that messages from the appellant were recorded on Keenan's pager at 9.45 p.m. on 28 September and at 9.09 a.m. on 29 September. The message is spoken to an operator who types the message into the pager. It takes about 30 seconds to do this. While this evidence is not conclusive, it supports the view that the mobile phone was used by the appellant on the evening of 28 September and at about 9.00 a.m. on 29 September. Both messages purport to come from the appellant.

Counsel for the appellant also explored with the officer from Telecom, who gave evidence about the appellant's mobile phone, the possibility of calls being received by the mobile phone. Included in this was the suggestion that a call was made from the appellant's mother's phone to the appellant's mobile phone at 11.55 a.m. on 29 September. The call lasted one minute and 29 seconds. Anita Lee also gave evidence that late in the morning on 29 September the appellant's mobile phone rang in Danielle's room. She went to answer it, but it stopped ringing. She gave it to the appellant.

Thus there were threads in the evidence which supported the inference that calls being made on the appellant's mobile phone on 28 and 29 September 1993 were being made by him. This evidence to which reference has just been made was not analysed by his Honour in the way that has just been done. It is not known if it was referred to by counsel. In a trial where the evidence is heard over 12 days, addresses cannot cover every piece of evidence.

Similarly, the taxi driver who picked up two passengers from the area near where the car was burnt said one passenger used a mobile phone. On the prosecution case these men were the appellant and Keenan. The taxi driver fixed this at a time after 2.15 p.m. on 29 September. The records of the appellant's mobile phone show that it was used at 2.25 p.m. on 29 September to call Natasha Hughes, the appellant's girlfriend. She gave evidence that he phoned her after she arrived home about 2.00 p.m., and that he arrived at her home sometime later. He was dressed in clothes different from those which Anita Lee had said he was wearing when he arrived at 4 Sandpiper Street in the morning. Natasha Hughes then went with the appellant to the Wynnum Police Station where, at 4.00 p.m., he signed the bail book. He was apparently on bail in respect of the drug charges.

Anita Lee said that on the night of 28 September three people stayed at her house, Burridge, Jody Williams and Stephen Chapman. They woke about 9 o'clock on 29 September. Williams and Chapman went shopping just before 10 o'clock, Burridge remained at 4 Sandpiper Street.

The taxi driver, Mr. Wilson, gave no evidence about the time on 29 September when he took the men to 4 Sandpiper Street, or of the time when he took the deceased to the street where the appellant lived. Anita Lee said that, to her knowledge, the men who arrived after 10.00 a.m. had not phoned before they came.

Returning, then, to his Honour's comment, he reminded the jury that there is evidence of phone calls being made on the appellant's mobile phone. He had earlier in his summing up referred in more detail to that evidence and made the comment:

"I suppose from the Crown's perspective the highest it can be put is that someone at the residence was spoken to not long before Murray and the others arrived. You will recall that or I think you will recall - because it is my recollection and I am sure counsel will correct me if I am wrong - that neither Lee nor Williams nor Chapman, who were in the premises, suggested that they received phone calls. It may be that they were not asked, but it may well be that those phone calls are not inconsistent with Burridge having been the person contacted. Anyhow, that is a matter for you. It does not necessarily have any particular significance, but it is a feature of the evidence that I think has not been mentioned up to this point. I thought your attention ought to be at least directed to it."

It was submitted that, in the light of this comment, the later comment, which has been quoted, was an invitation to the jury to draw the inference that as a result of the appellant's phone call to Burridge, Burridge obtained the axe and secreted it at that time within the house for its later use upon the deceased. The short answer to that is that the comment does not contain such an invitation. It is only a comment in response to the defence submission that Burridge had brought the axe into the house.

It was submitted that proof of the appellant's involvement with the axe was an intermediate step in the proof of guilt, and had to be proved beyond reasonable doubt: Shepherd v. The Queen [1990] HCA 56; (1990) 170 C.L.R. 573. That is not so. How the axe came to be in Danielle's room was only one matter in the proof of the intermediate step that the appellant was party to a plan. Unless he was a party to a plan to harm or to kill he was not guilty of murder.

There was an overwhelming body of evidence that proved his involvement, if the jury decided to accept the prosecution witnesses. Not only were there the six factors to which Mr. Rutledge referred, which pointed to the appellant's involvement in a plan to harm or kill Murray, but there was evidence of his activities in the house at 4 Sandpiper Street before and after the blows were struck with the axe, and also at the time when they were struck. There was evidence from which the inference could be drawn that he was present with the deceased when the deceased was injected with something that made him lose his balance. There was also evidence that he was present in Danielle's room when the axe blows were struck. There was also evidence that only Burridge and the deceased were in the room at that time. There was also evidence that, after the axe blows were struck, the deceased was carried into a room described as a rumpus room and as a storeroom. There the appellant was said to have kicked the deceased who was moaning and "gargling". None of this evidence alone proved the appellant's guilt, but, if accepted, it was capable of proving beyond reasonable doubt that the appellant was party to a plan grievously to harm or to kill the deceased.

The comment his Honour made was within proper limits and no redirection was sought. The ground is not made out.

The other grounds argued were to the effect that the defence case was not put. The essence of this submission is that in dealing with the prosecution case against Keenan, his Honour dealt extensively with the submissions made on Keenan's behalf in response to that case. However, there were not such detailed references to the submissions made on behalf of the appellant.

When his Honour began his consideration of the case against the appellant he said:

"This morning, ladies and gentlemen, I will start with that passage of the summing-up that deals with the evidence that is related to Marshall. I will not be going through it in quite the same amount of detail as I did in respect of Keenan, in the sense that I have already set the background and pointed to the overall sweep of the evidence when I dealt with the evidence relating to Keenan yesterday. What I propose to do is just to concentrate, without the connecting bits, on the bits of the evidence that are really directly concerned with Marshall."

He then referred in some detail to each of the witnesses who were at 4 Sandpiper Street on 29 September. He referred to their evidence-in-chief, reminded the jury that on the previous day he had dealt with Keenan's counsel's cross-examination on matters of credit and referred to specific matters dealt with in cross-examination by the appellant's counsel. There can be nothing unfair in this approach.

He then reiterated in some detail the matters each counsel had addressed upon. This occurred between pp.834 and 847. The reiteration of the prosecution case took about seven pages and each of the defence submissions about three and a half pages.

Then followed the final directions. In answer to his question, "What is the case against Marshall?" his Honour spoke for some five pages. In answer to his question "What is the evidence against Keenan?" he spoke for eight pages. At the conclusion of the summing up, the appellant's counsel sought a number of re-directions and some of these were given. We have already quoted the last of these. Among the last words the jury heard from his Honour was the reminder that the appellant's counsel had submitted that the proper view was that Burridge was on his own when the fatal blows were struck. In as much as the appellant had declined an interview and had not given evidence, the defence case consisted of a challenge to the prosecution witnesses and to the inferences to be drawn from the evidence. The jury was clearly instructed on these matters in a long and careful summing up. The only conclusion that can be reached is that the appellant's defence was fairly put to the jury.

The appellant has appealed against his conviction of the murder of Darryl Murray, who died after being struck with an axe. It is not clear whether he had earlier been injected with battery acid. The blows with the axe were struck by Trevor Burridge, who was also convicted after pleading guilty. After he was struck, and probably after his death, Murray's body was placed in a motor vehicle which was burnt by the appellant and a co-accused, Frank Keenan. The jury which convicted the appellant was unable to agree upon a verdict in respect of Keenan.

Following his arrest on a drugs charge on 23 September 1993, the appellant said that Murray had informed on him and expressed a desire for revenge.

Documentary records, as explained by an employee, indicated that the appellant's mobile telephone had been used to call Keenan at 9.44/9.45 p.m. on 28 September and 9.08/9.09 a.m. on 29 September. Messages left for Keenan appeared to come from the appellant. The message on the night of 28 September was "Frank ring Rick [the appellant] as unarmed and need arm." The message on the morning of 29 September was "Frank, please ring Rick [the appellant]. Darryl is on his way over. I need my piece."

On the night of 28 September, Burridge stayed at the residence of Anita Lee, at 4 Sandpiper Street, Wellington Point.

Telephone calls were made from the appellant's mobile telephone to the telephone number at Lee's residence at 9.40 a.m. and 10.05 a.m. on 29 September.

That morning, a taxi driven by the same person on both occasions took a man answering Murray's description to the street in which the appellant lived, and subsequently took the same man and three other men from the appellant's residence to Anita Lee's residence. In his written outline of submissions to this Court, the appellant accepted that the men in the taxi were the appellant, Murray, Keenan and a man named Ian Batt, who was deceased at the time of trial.

According to Lee, the appellant had a mobile telephone with him when he arrived at her residence shortly after 10 a.m. Another man who arrived later, Wayne Martin, confirmed that the appellant had a mobile telephone with him at Lee's residence.

Murray was killed there, in the bedroom of Lee's five-year-old daughter, Danielle.

It is convenient to summarise the prosecution case against the appellant by reference to its written outline of argument in this Court, which asserted as follows:

3. ... the murder ... took place in a room in the house of the witness Anita Lee at a time when the appellant, and others, were in the room.

4. ...

(d) at around 10 am, the appellant, the deceased and two others arrived at the house; ...

(e) with the exception of the deceased, all 3 persons and Burridge went into Anita Lee's bedroom;

(f) the appellant said that they had got the 'nark' and there was discussion about what was going to happen to him;

- this included injecting him with battery acid and then taking him to a quarry ...;

(g) the deceased was then called into another bedroom where the 4 males followed ...;

(h) a voice was heard to say, 'you've missed' to which the appellant replied 'No, I haven't missed' ...;

(i) thereafter several thumps were heard and when Anita Lee looked inside the bedroom, 'there was blood all over the place' ...;

(j) the male persons continued to go in and out of the room and 'kicking' sounds and 'gargling' noises were heard ...;

(k) the appellant was seen to have blood on his tracksuit pants and shoes ...;

(l) there was a discussion as to how they were going to get ride of the body ...;

(m) the appellant was asked if Darryl was dead and said, Yeah, he's dead now' ...; and

(n) the appellant then said, 'He ruined my life, so I just ruined his'...; and

(o) there was also evidence that, following the murder, the appellant spoke to the witness Murray and told him that he and 3 others had 'killed Darryl' ... ."

Anita Lee and others who were present at her residence when Murray was killed, who included a man called Martin and a woman called Lucas, broadly described the events summarised above, and gave evidence that, after Murray was struck with the axe, he was carried into another room, a storeroom or rumpus room, where he was kicked by the appellant while moaning and "gargling". There was also evidence of threats by Marshall to Martin and Lucas.

The main comments in favour of the appellant which can be made of the evidence of those who were present at Lee's residence are that (i) on some evidence, he was not present in Danielle's bedroom when Burridge struck Murray with the axe and (ii) the witnesses and their evidence are all susceptible of criticism. The prosecution case essentially depended on the jury's acceptance of Lee's evidence when it differed from the evidence of other witnesses.

There was also evidence that a taxi picked up two men, one with a mobile telephone, near where the motor vehicle containing Murray's body was burnt on the day on which he was killed, and that, later that afternoon, the appellant was seen dressed in different clothes from those which he had been wearing at Anita Lee's residence.

The prosecution case against the appellant accepted that Murray was killed by axe blows struck by Burridge, and sought to attribute criminal responsibility to the appellant on the basis of ss. 7 and 8 of the Criminal Code. Essentially, the case against the appellant was put on the following bases:

(1) that he encouraged Burridge to kill Murray (s. 7);

(2) that there was a common intention to kill or cause grievous bodily harm to Murray (s. 8); or

(3) even if there was no common intention to kill or cause grievous bodily harm to Murray, his murder was a probable consequence of what was intended (s. 8).

(An alternative case, based on the premise that unlawful killing not constituting murder was a probable consequence leading to a verdict of manslaughter, was left to the jury but need not be considered in light of the jury verdict convicting the appellant of murder.)

Plainly, there was a strong case against the appellant. However, there is an inherent risk in cases such as the present in which the prosecution presents the jury with a number of optional bases for guilt. In my opinion, the jury should be clearly informed of the findings which it must make, and the evidence which it must accept to make such findings, before an inference which is essential to the accused person's guilt can be drawn; for example, in the present case, that the appellant encouraged Burridge to strike Murray with the axe.

When dealing with s. 7 of the Code, the trial judge initially said:

"...it really then becomes a question for you whether you are prepared to infer beyond reasonable doubt that the fact that the person is there at the scene when the offence is being committed should in all the circumstances be considered as a positive act of encouragement. ....In the context of this case, if either of the accused persons knew that Murray was going to be murdered, should the continued presence of that particular offender at the scene be taken to be aiding by encouragement? Of course, you have to satisfied beyond reasonable doubt of that before you could convict on that basis."

One of the redirections given also concerned s. 7 of the Code. His Honour said:

"The final matter relates to the concept of aiding by encouragement. One view of the matter - and it is submitted to you by defence counsel that it is the proper view - is that Burridge was in the room on his own at the time when the blows were struck. What constitutes encouragement is a question of degree. As I tried to explain to you, that there was a whole spectrum of possibilities. What you have to be satisfied of, if you rely on encouragement at the end of the day, is that the person who is alleged to be the person giving the encouragement did, in fact, give encouragement and that what Burridge did was not just something that he did off his own back without any encouragement by the alleged other offender."

The principal ground of appeal related to a comment by the trial judge in relation to the absence of any evidence as to when and where Burridge obtained the axe; after referring to a submission by defence counsel that Burridge might have "slipped out and got it some time during the events of the morning" - with the implication that the appellant might not have known that Burridge had an axe - his Honour mentioned two possibilities: (i) "that it was already inside" and (ii) "that there were two calls from [the appellant's] mobile phone on the morning of 29 September ..." and "it may well be that those phone calls are not inconsistent with Burridge having been the person contacted" - with the implication that the appellant might have spoken to Burridge on the telephone before arriving at Anita Lee's residence and arranged for him to obtain an axe.

Although no redirection was sought with respect to the trial judge's comment, the appellant complained in this Court that the prosecutor, who addressed first, had not raised the possibilities to which his Honour adverted, so that the appellant's counsel could not anticipate or answer the points. The complaint is without substance, especially since the only suggested answer, even with the benefit of hindsight, is that someone else might have used the appellant's telephone to call Anita Lee's telephone number on the morning in question; there was evidence that other persons used the appellant's mobile telephone from time to time.

However, that does not entirely dispose of the appellant's argument, which involved the proposition that the appellant's knowledge that Burridge had an axe was an essential element of the prosecution case based on s. 7 of the Code, which had to be proved beyond reasonable doubt.

Although overstated, the appellant's submission necessitates reference to what I have earlier said concerning the importance, in cases like this, of explaining to the jury what findings must be made to sustain an inference of guilt. If the jury was not satisfied beyond reasonable doubt that the appellant was in the room when Burridge struck Murray with the axe or that he knew that Burridge had an axe, it is not easy to see how the jury could have been satisfied beyond reasonable doubt that the appellant encouraged Burridge to murder Murray with the axe. If the prosecution contended that, in those circumstances, the appellant could be convicted of murder on the basis of s. 7 of the Code, the findings necessary for such a conclusion should have been identified. Further, as the appellant submitted, a conclusion that the appellant was guilty had to be the only inference reasonably open from the circumstances relied on by the prosecution.

While further, more elaborate, directions would have been desirable, in the absence of a request for further redirection I am not persuaded that the omission to give a more precise and specific direction on this aspect of the matter deprived the appellant of a fair chance of acquittal.

The appellant's other ground of appeal which was the subject of submissions, which was that the trial judge failed properly to put the appellant's case to the jury, cannot usefully be discussed at length. As the argument recognised, the appellant's "case" really consisted only of a challenge in cross-examination to the prosecution evidence.

As earlier stated, the witnesses who were present at Anita Lee's residence when Murray was killed were less than perfect, but the summing-up discussed the evidence at length and I am satisfied that the jury was made aware of the discrepancies and other deficiencies in the prosecution case. This matter is more fully discussed by Davies J.A. and Demack J. and I agree with their Honours' observations.