R v Massie [1998] VSCA 82

28. For the purpose of disposing of the present applications it is unnecessary to say much more about the evidence. We have been provided by the Crown with the usual summary of evidence, which in this case runs into 44 pages, together with annexures running to 413 pages, quite apart from the bulky transcript. The Crown case was in my view an extremely strong one, and the attempts on the part of the defence to bolster by documentary means the case that the accused was only pretending seems to me to have been very likely to confirm in the minds of the jury the view that the accused, being guilty, had sought to fabricate evidence with a view to avoiding conviction.

31. In Victoria incitement is now a statutory offence, defined by s.321G of the Crimes Act 1958, with the assistance of s.2A ("incite"). England has not thought it desirable to replace the common law offence with a statutory one, and I am not sure that the course followed in Victoria of abolition coupled with statutory recreation, as opposed to preservation with modifications, has proved the better way of proceeding. But the tides of statutory change flow strongly in the present age, and have washed away much of the old law that seemed to serve us tolerably well.

34. The applicant's grounds 4 and 4A complain of misdirection about the elements of incitement. The essential complaint is that the jury were instructed that the crime of murder, for the purposes of incitement to murder, required an intention to kill or do grievous bodily harm. No exception was taken at the trial to the direction about the elements of the crimes charged, which occupy five and a half pages of transcript. Without objection, the judge gave the jury on their retirement a six page document in the same terms as her oral direction. The instruction now complained of about the intention necessary in murder was in fact given. There was at the trial never any suggestion that it should not be, or should not have been, given. Rather than summarize the charge in relation to the elements of the offences, I shall annex to my reasons a copy of the six pages of written directions given to the jury when they retired, which reflect the oral directions.

37. It is clear that, both at common law and under s.321G of the Crimes Act, the crime of incitement to murder requires that the accused shall have incited someone to kill. For the crime of murder has as its first element the causing of a death, and so no-one can incite to murder unless he or she incites someone to kill. In the same way (as has now been established for a good many years), the crime of attempted murder requires an intention to kill: Cutter v. R. [1997] HCA 7; (1997) 71 A.L.J.R. 638 at 639 and the earlier decisions there mentioned. In Victoria, the rule for attempted murder was accepted as early as 1953: R. v. Spartels [1953] VicLawRp 33; [1953] V.L.R. 194. As regards incitement to murder, on principle it is clear that the crime requires an incitement to kill, and this is recognized in Smith and Hogan, Criminal Law, 8th ed., pp.276 and 388, citing R. v. Bainbridge (a decision noted in (1991) Crim. L.R. 535) as unreported on this point, and by the Criminal Law Working Group on conspiracy, incitement and attempt appointed by the Victorian Attorney-General in para.12 of its report of 15 November 1983. But authority is unnecessary: the rule must be that incitement to murder means incitement to kill, for murder is a form of homicide.

40. A jury should not be told, where the crime charged is incitement to murder, that murder is causing death with the intention of killing or doing grievous bodily harm. It is unnecessary to say this, and there may be a danger, depending on what is said, that the jury will think that incitement to do grievous bodily harm amounts to incitement to murder. It is highly unlikely that any element of murder other than that of killing will be relevant in cases of incitement to murder, and in most cases of incitement to murder it will suffice to tell the jury (so far as this point is concerned) that for their purposes murder can be defined as intentional killing, without mentioning conscious, voluntary act or self-defence.

43. The judge here charged the jury by initially setting out in full the terms of s.321G of the Crimes Act. I doubt very much whether there will ever be a case in which to do this is desirable. In the Second Reading Speech in the Legislative Assembly on the Bill for the Act which became the Crimes (Conspiracy and Incitement) Act 1984, the Minister described the proposed statutory definition of incitement as clear: Hansard, vol.374, p.3545. With all respect to those concerned with its drafting, I am not sure that I agree. It is, at all events, certainly not a definition which lends itself to wholesale incorporation into a charge. We were told by counsel that the judge's charge was taken from what is commonly known as the Charge Book. In fact, the definition suggested in that work, unlike the charge in this case, sets out only the first of the three sub-sections of s.321G, not all three of them, and even to do this seems to me to be, in general at all events, undesirable.

46. The section is a modified version of the provision drafted by the Working Group already mentioned. In a case in which there is a simple and direct incitement to commit a crime, the judge may and should instruct the jury in terms of incitement to commit the offence, without bothering the jury about the pursuit of a course of conduct which will involve the commission of the offence. There is no point in talking about the commission of a crime by the inciter, or by both the inciter and the person incited, in the ordinary straightforward case of the incitement of someone to murder another, and it is unfortunate that the Charge Book gives a model direction which sets out most of s.321G(1). There is no point in telling the jury about impossibility (s.321G(3)) where no question of impossibility arises. There is no point in troubling the jury about para.(b) of s.321G(2) in the ordinary case. Counsel and the judge racked their brains, searching for the intention behind this paragraph, and its relationship with para.(a). Unfortunately, counsel did not go to the Parliamentary Debates in search of the origin of the legislation.

49. Recourse to the report of the Working Group already mentioned shows that para.(b) was not intended, by it at all events, to have any scope for operation in a case like the present. The idea was to deal with cases where criminal liability as regards the offence which someone was incited to commit depended merely upon the existence of certain circumstances, ignorance of them not affecting liability. (R. v. Churchill [1967] 2 A.C. 224 is given as an example of such an offence in para.11), and to prevent those who incited conduct in such a case from becoming liable as inciters unless they believed that the circumstances existed.

52. Understandably, the present jury, para.(b) having been introduced into the case by the charge and the written directions, sought "a layman's explanation" of para.(b). The judge gave them an explanation in terms which had previously been declared by counsel to be acceptable. This explanation was that the paragraph meant that at the time of the incitement the accused must have intended or believed (in the case of incitement to murder) that the murder would take place, that is, that all the elements of the crime of murder would exist and (in the case of incitement to injure) that serious injury would be done, that is, that all the elements of that crime would exist. In repeating for this purpose her definition of the crime of murder, the judge again told the jury that the necessary intent was either to kill or to do grievous bodily harm.

55. In this particular case the jury could have been charged fairly briefly about the elements of the offences. Directions along the following lines would have been adequate:

"Now I must tell you as a matter of law what the Crown must prove to establish the offences charged. You may take murder, for the purposes of this case, as meaning killing, in the sense of intentionally causing someone's death. To prove that the accused incited Joe Black to murder his brother requires the Crown to prove that the accused, with the intention of having Black kill his brother, incited Black to kill his brother. In the same way, inciting Black to murder the accused's sister-in-law means that the accused, with the intention of having Black kill his sister-in-law, incited Black to kill her. That is the crime of inciting to murder, counts 1 and 2. Inciting Black to intentionally cause serious injury to Marguerite Bourke means that the accused, with the intention of having Black seriously injure Marguerite Bourke, incited Black to intentionally cause serious injury to her. What amounts to serious injury is a question for you, and if there is a combination of injuries contemplated you should consider their combined effect. That is count 3. The two offences of inciting to murder and inciting to intentionally cause serious injury have this in common: the accused must have requested or encouraged Black to intentionally harm the victim, and the accused must have done this with the intention of having Black harm the victim. The distinction between the two offences lies in the nature of the harm, that is, the harm which the accused must have incited Black to do to the victim and which the accused must have intended should be done to the victim. With inciting to murder, the harm is death. With inciting to cause serious injury, the harm is serious injury. For both offences, inciting to murder and inciting to intentionally cause serious injury, inciting means requesting or encouraging. The suggestion need not have originated with the inciter. It can originate with some third person or even with the person alleged to have been incited. But the accused must have incited the person he is alleged to have incited by requesting or encouraging him to commit the crime of murder, for counts 1 and 2, or the crime of intentionally causing serious injury, for count 3. The accused is charged with inciting and that crime consists of the act of inciting done with the necessary intention, that is, the intention that what is requested or encouraged shall be done. It is not necessary that the person incited should take any steps with a view to doing what he is incited to do. He may - as in this case - have no intention whatever of doing what he is incited to do, and even be a police undercover agent. In the present case the Crown says that the accused asked Black to kill his sister-in-law if she happened to be present when he was about to kill the accused's brother. As a matter of law, to make such a request is still to incite. A request to murder a woman if she happens to be present on a particular occasion is just as much an incitement to murder as a request to murder her made in perfectly general terms."

59. This is intended only to give a general impression of the appropriate approach in the present case: I have not pored over each word of what I have suggested.

62. What is the effect of the direction given in this case, by which the jury were told that murder meant causing death with the intention to kill or do grievous bodily harm? The conscious, voluntary act, the act as a substantial cause of death and the absence of lawful excuse also figured in the definition of murder given. These were unnecessary complications. There was no suggestion that it was contemplated that Joe Black might execute his commission by accident, or at a time when he was sleepwalking, or in a fit of abstraction, or when he was defending himself against some attack by the sister-in-law, and the refinements with regard to causation, which do not often require discussion even in cases of homicide, have no place where the offence alleged is incitement to murder. This jury could have been told: "You must be satisfied that the accused was not pretending, but really intended that Black should kill his brother and sister-in-law, and was not pretending, but really intended that Black should beat up Marguerite Bourke so as to do her serious injury." "Kill" for the first two counts and "beat up" or "attack" for the third would have served on the facts of this case, where subtleties like cutting the brake hoses, or electrocution in the bath, or running the victim down, were never in contemplation.

65. If there is any danger that the applicant was convicted of incitement to murder because the jury were satisfied that he intended that Black should seriously injure the brother and his wife, then obviously the convictions cannot stand. The charge must be described as an unhappy one, having regard to its unnecessary reference to intent to cause grievous bodily harm as part of the definition of murder; its use of the terms of s.321G as the framework for the definition of incitement, with the resulting introduction of complications with which the facts of the case had nothing to do; its failure to give the relatively simple definitions that were appropriate to the facts and were much to be preferred; and its reference to the requirement contained in para.(b) of s.321G(2).

68. But after careful consideration I have concluded that the directions about the elements of the offences should not bring these verdicts down. In the first place, it is to be noted that the oral and corresponding written directions initially given to the jury, in referring to the intention to kill or do grievous bodily harm, were concerned with the elements of the crime of murder. The jury were not told that it was enough to constitute the crime of incitement to murder that the inciter intended only grievous bodily harm to be inflicted and sought to persuade the person incited to do grievous bodily harm to the victim. In the second place, there is the answer which the judge constructed, with the aid of counsel, to the jury's question about the meaning of para.(b) of s.321G(2). This answer, while not directed to the point which the framers of that paragraph had in mind, did serve to make it clear that, as the judge put it, the jury must be satisfied beyond reasonable doubt -

* as to the brother, Franco, that "[at] the time when he [the accused] incited Joe Black, he intended or believed ... that Franco's death would be substantially caused by an act or acts of Joe Black";

* as to the sister-in-law, Carol, that "when he incited Joe Black he intended or believed that Carol's death would be substantially caused by an act or acts of Joe Black";

* as to Bourke, that "at the time he incited Joe Black he intended or believed that an act or acts of Joe Black would cause serious injury to Marguerite Bourke."

74. I do not think that the jury could have been in any doubt that the Crown had to prove incitement to kill Franco and his wife. The jury in convicting must have been satisfied of the facts necessary in law to constitute the respective offences charged. As regards the counts of incitement to murder, the evidence made it plain, and the defence accepted, that the words spoken and acts done by the applicant, taken at their face value, amounted to a request to Black to kill both victims. There was never any suggestion, in evidence or argument, that the request, taken at its face value, was only for the infliction of serious injury, or that the actual intention of the applicant, or, for that matter, of Black, was that injury not resulting in death should be inflicted. As regards the count of incitement to intentionally cause injury, the defence having conducted its case on the basis that (taking what the applicant had said at face value) he had requested not only the infliction of injury but the infliction of serious injury, the only issue was whether the applicant intended his request to be acted upon. With all three offences, it was clear that the applicant was to be convicted if the jury were satisfied that what I might call the prima facie incitement (the existence of which was conceded) had been proved to be genuine as opposed to pretended incitement.

77. As a matter of analysis, I would say that there was no material error of law in the directions given to the jury so that the case does not fall within the body of s.568(1) of the Crimes Act. But if I was wrong in this view and there had been a material error of law, I would be satisfied that the case falls within the proviso to the sub-section, since in convicting the jury must have been satisfied that the elements of each offence had been established. The point is that it was clear, and it was common ground, that the accused had incited Black to kill two persons and seriously injure a third if his words were to be regarded as reflecting his true desire and intention, the only question being whether the jury were satisfied that he was not pretending when he said that he wanted two persons killed and the third injured. The jury having resolved against the accused the only live issue at the trial, he was, on the clearly established and indeed admitted facts, plainly guilty of the three offences.

80. I turn to the remaining grounds of appeal. Ground 1 concerns the refusal of the judge, at the first trial, to grant a stay on the ground of the absence abroad of the witness Evelyn Burton. She had given evidence at the committal in July 1995 and had gone to the United States almost immediately afterwards. The trial of the applicant was originally fixed for 26 February 1996. She had promised the informant she would return to Victoria from the United States to give evidence at the trial, but failed to do so, and the trial was in consequence adjourned to 19 April 1996, on which date she again failed to appear, and Hampel, J. issued a warrant for her apprehension under s.415 of the Crimes Act, evidently as a person keeping out of the way to avoid service of a subpoena. In about May 1996 the informant told her of the existence of this warrant. A company with which Burton was associated was the subject of an investigation by the Australian Securities Commission, but having regard to the evidence before the judge there do not seem to me to have been any grounds for concluding that this investigation was at all likely to result in her being extradited at any time in the future. The application for a stay of the applicant's trial was made on 3 February 1997. The application seems to have begun as an application for a permanent stay, but at the end of his submission counsel accepted that he was really applying for a stay until Burton was in Australia and available as a witness. From another part of the submission it appears that the defence suggestion was, not that Burton might choose to return to Australia, but that she might be extradited. I have already said that the evidence gave no grounds for concluding that this was at all likely. It was at best a speculative possibility.

83. No jury had been empanelled when the application was made. Four witness gave evidence. After hearing evidence and submissions for four days her Honour took time to consider her decision and gave it on 12 February, dismissing the application. The judge found that Burton's present whereabouts were unknown and that her conduct indicated an intention not to return to Australia. I do not propose to summarize her Honour's reasons for decision. Her Honour remarked that the defence challenged the evidence of Burton only on the question whether it was she or the accused who initiated a suggestion that persons might be killed. In my opinion this ground of appeal should fail. I would go so far as to say, not only that no error on the part of the judge is shown, but that it would have been surprising if her Honour had taken a different view concerning the proper outcome of the application.

86. Time and again we find applicants for leave to appeal not only relying on points not taken below but taking up a position inconsistent with that taken at the trial. It has been argued that the judge erred in that she applied the principles which bore on an application for a permanent stay. But that is just what counsel then appearing for the applicant invited her to do. Moreover, I do not find anything in her Honour's discussion of the authorities to suggest that the exercise of discretion miscarried.

89. Grounds 2 and 3 concern the determination of the judge, notwithstanding the objection of counsel for the accused, that the Crown might put in evidence on the trial the evidence given by Burton at the committal. Once again, her Honour gave a considered ruling, which was that the evidence should be received. The prosecution relied on s.55AB of the Evidence Act 1958, whereby a deposition, and any exhibits mentioned in it, taken at a committal may be used as evidence in the trial if the witness is out of Victoria and the requirements of para.(b) of sub-sect.(2) are satisfied. One of these requirements said by the defence not to have been satisfied was the requirement that the accused or his or her legal practitioner "had a full opportunity of cross-examining the witness". The judge rejected this contention, which lacked substance, and which has not been renewed for the purposes of the appeal. The second point taken before the judge was that the evidence should be excluded in the exercise of a discretion, and reference was made to R. v. Collins [1986] VicRp 3; [1986] V.R. 37. The only argument put at the trial in this regard was based on the jury's need to see Burton in order to assess her credibility, leaving aside a passing and to my mind quite unpersuasive suggestion that other Crown witnesses would benefit from knowing that Burton could not be cross-examined. The important thing for present purposes is that counsel for the accused never suggested that it would be unfair to his client to receive all the material that was in fact received in consequence of the Crown's application. The Crown prosecutor had already made it known that he wished to place before the jury all the material which it is now said - for the first time - unfairly gave to the evidence of Burton a prominence that it did not deserve - her police statement, put in at the committal, the transcript of her evidence at the committal, the tape recording of her evidence at the committal and the tape and transcript of a conversation between Burton and the applicant.

92. I see no reason for doubting the correctness of the judge's ruling on the submission put to her about discretion. As regards the matter of undue prominence now raised for the first time, it is yet another example of the tendency to conduct trials on one basis and applications for leave to appeal on another. The judge is now said to have erred by failing to do what she was never invited to do - exercise a discretion by considering which parts of the material mentioned by the prosecutor at the trial should go before the jury. It is quite possible - indeed, I would say that it is probable - that counsel for the accused saw no advantage in seeking what it is now suggested should have been done and indeed that he thought it was to his client's advantage not to seek it. Notwithstanding objection, counsel who appeared for the applicant at the committal had been heard to give evidence in support of the stay application about the manner, bearing and appearance of Burton when she gave her evidence, and was allowed to describe her as manipulative, misleading, aggressive as regards unwanted questions and unwilling to tell the truth. The evidence ought not to have been received. But counsel for the accused at the trial may have believed that the tape recording of her evidence, for example, would help to bring the witness to life in a way which assisted his client. I do not consider that the criticism now made based on the suggestion of undue prominence should succeed in the circumstances of this case, and I say nothing about what might properly be done in other cases, or about the difference between the words now used in s.55AB(2) ("may be used as evidence") and the words formerly used, for example, in s.208 of the Justices Act 1958 ("may be read as evidence").

95. I would add that, as the judge pointed out, all arguments about the evidence of Burton should in any event be considered in the light of the fact that the defence was really one of confession and avoidance ("I was pretending") rather than denial.

98. Ground 5 is that the judge failed to direct the jury sufficiently or at all about the drawing of inferences. No exception having been taken to the charge, it is yet another example of the advent of different counsel and a combing of a charge regarded as fair and satisfactory at the time it was given for any word or phrase that might possibly be used in an appellate court. No one at the trial saw anything wrong with what the judge said about inferences and I see nothing wrong with it. The complaint now made about the words "not necessarily" is an idle one. The judge was only warning the jury that they should not treat her directions on matters of law as containing concealed comment on questions of fact. The other points now taken - about intention - are not properly taken in any ground of appeal. (The grounds have been twice amended.) It was argued that the judge should have given the jury directions about drawing an inference of intention. But the present case was not one in which, there being no express statement of intent by an accused person, the jury were asked to infer intent from a number of circumstances. The case was one in which the avowed intention of the accused was to have three persons killed or injured, and the question was whether it was a reasonable possibility that this was a pretence. My view that there is no substance in this point is reinforced by the absence of exception at the trial by the applicant's extremely experienced counsel. The other submission put to us about intention was that the judge, having told the jury that motive was relevant to intention, should have gone on to say that the jury should not take motive into account unless satisfied beyond reasonable doubt that the suggested motive existed. But a clear direction to this effect was in fact given, so that it is unnecessary to consider whether, in the light of what was said in R. v. Murphy (1985) 4 N.S.W.L.R. 42 at 59-60 and in Penney v. R. [1998] HCA 51; (1998) 155 A.L.R. 605 at 612, such a direction was necessary in this case.

101. Ground 9 (which should have been numbered 6) complains of failure sufficiently to identify the issues, relate the law to the evidence and distinguish between the judge's comments on evidence and directions of law. Again the words "not necessarily" are relied on and again the point is an idle one. On the other hand, it can be said of the present charge that it fails to tell the jury in express terms what the only real issue for their consideration was. But what that question was must have been perfectly obvious to the jury, and no exception whatever was taken to the charge. The real question was whether the jury were satisfied that the accused was not pretending but was in earnest when he told Joe Black that he wanted his brother and sister-in-law killed and his former de facto wife injured. It was never suggested on his behalf that his words and deeds, taken so to speak at their face value, did not amount to incitement to murder or - as the case may be - incitement to intentionally cause serious injury. It was never suggested on his behalf that the injury which he asked Black to do to his former de facto wife should not be viewed as serious. The case was, as one would expect, having regard to the evidence against the accused, fought by the defence as one in which the only question was whether the Crown had proved that he was not play-acting when he asked Black to kill and injure.

104. Not so many years ago, when judges were perhaps bolder than they are now, a judge might almost have been tempted to tell the jury that if they were satisfied that the applicant was in earnest in commissioning Black, they should convict him of the three offences. Nowadays no judge would dream of adopting this daringly simple approach. Her Honour did not in this case tell the jury that the real issue was whether the applicant had been in earnest. Most trial judges would have done this. But the jury can have been in no doubt about what the real issue was in what was, in a sense, a simple case. The evidence before them and the addresses of counsel made it clear that the trial was a single issue trial. The fact that no exception was taken to the charge by the very experienced counsel appearing for the applicant shows that he saw no deficiency in the charge from his client's point of view. Nor do I think that the charge was defective by reason of failure to relate the law to the evidence, and again the failure to take exception shows that the applicant's counsel was of this view. If the judge had made a catalogue of the evidence bearing the question whether the applicant was in earnest, the resulting addition to the charge would have been forensically disadvantageous to the applicant.

113. The applicant was aged 46 at the time of sentence. His only prior conviction was an irrelevant one for making harassing phone calls, sustained in 1979.

116. The grounds of appeal are that the judge failed to give sufficient discount for the applicant's acts which had been socially useful, that she failed to take into account the background, health and psychological state of the applicant and that there was insufficient disparity between the head sentence and the non-parole period.

119. No reliance was placed in argument on the applicant's health and psychological state. He described his occupation as financial consultant, but having regard to the evidence at trial it is not surprising that no attempt was made to present him for sentencing purposes as one who should be given credit for his occupational background. He had on a number of previous occasions performed socially useful acts and the judge took this into account in his favour in ways which have not been criticized except as regards the sentences actually passed.

122. It has been submitted that the individual sentences, the total effective sentence and the non-parole period are all manifestly excessive in all the circumstances and especially in view of the applicant's socially useful activities. In addition, the length of the non-parole period in relation to the total effective sentence has been criticized.

125. I see no reason for regarding any of the individual sentences or the total effective sentence as manifestly excessive.

128. Incitement to murder is an extremely serious offence. Its seriousness in the eyes of Parliament is shown by the maximum penalty provided. Some cases of incitement to murder will merit more serious punishment in all the circumstances than some cases of murder. The present cases of incitement to murder are worse than some cases of murder in which I have had to pass sentence or consider the sentence passed by another. The head sentences and total effective sentence passed in this case seem to me to be by no means excessive. Higher sentences could properly have been imposed.

131. The main attack was made on the length of the non-parole period, it being submitted that a period of 8 years was too long when the head sentence was itself of 9 years. No reason was given by her Honour for fixing a non-parole period of 8 years. In my opinion, the non-parole period should have been shorter. I would reduce it to 7 years, but otherwise I would leave the sentences unaltered.

135. The first and second charges are charges of incitement to murder and the third charge is a charge of incitement to intentionally cause serious injury. Thus all three are charges of incitement.

139. It is a criminal offence to incite the commission of a crime or crimes and Section 321G of the Crimes Act provides:

"(1) ... where a person ... incites any other person to pursue a course of conduct which will involve the commission of an offence by - (a) the person incited; (b) the inciter; or (c) both the inciter and the person incited - if the inciting is acted on in accordance with the inciter's intention, the inciter is guilty of the offence of incitement. (2) For a person to be guilty under sub-section (1) of incitement the person - (a) must intend that the offence the subject of the incitement be committed; and (b) must intend or believe that any fact or circumstance the existence of which is an element of the offence in question will exist at the time when the conduct constituting the offence is to take place. (3) A person may be guilty under sub-section (1) of incitement notwithstanding the existence of facts of which the person is unaware which make commission of the offence in question by the course of conduct incited impossible."

143. Sub-section (3) would operate if, for example, the charge were incitement to murder and the person to be murdered were already dead at the time of the alleged incitement but the accused did not know this. It is not suggested that it is relevant in this case, and you do not need to think about it further.

146. The word "incite" is an ordinary English word. Common forms of behaviour covered by the word are: "command", "request", "propose", "advise", "encourage" or "authorize". One can thus incite a crime by words or by acts which have any of these tendencies.

149. Accordingly, in order to prove the commission of the offence in this case the Crown must prove beyond reasonable doubt the following elements of the crime:

(a) that the accused intended that a course of conduct which would involve the commission of a crime should be followed either by himself or by another person or by both of them; and (b) that the accused intended or believed that any fact or circumstance the existence of which is an element of that crime would exist at the time when the conduct constituting the offence is to take place. 2. as to action: that the accused, pursuant to that intention, performed acts or spoke or wrote words which commanded, requested, proposed, advised, encouraged or purported to authorise that other person to pursue the course of conduct involving the commission of a crime.

154. The other person does not have to act on the inciting. That is, the other person does not have to commit the crime, or take any step towards committing the crime, for the accused to be found guilty of incitement. It is immaterial that no-one murdered Franco Mastroianni or Carol Mastroianni or caused serious injury to Marguerite Bourke, or even attempted to do any of those things.

157. The accused is charged with inciting the commission of two different crimes: murder and intentionally causing serious injury. Accordingly, it is necessary to define each of those two crimes so that you may consider in respect of each charge whether the course of conduct proposed by the accused would have involved the commission of the crime in question.

160. Now, no-one here is being charged with the crime of murder, or with the crime of intentionally causing serious injury. The three charges before you, as you are well aware, are all charges of incitement.

163. But the easiest way to define the two crimes, namely murder, and intentionally causing serious injury, is to assume that a person called X is charged with those two crimes.

167. For these purposes, what you need to know is that if X is to be found guilty of murder, a jury must be satisfied beyond reasonable doubt:

1. That the death of the deceased was substantially caused by an act or acts of X; and 2. That that act or acts were conscious and voluntary acts of X; and 3. That that act or acts were done with an intention to kill or do grievous bodily harm - which can be called serious physical injury.

Those three elements constitute the crime of murder.

173. Thus, to find the accused guilty of either of the first two charges, the charges of incitement to murder, you must in each case be satisfied beyond reasonable doubt that in Melbourne, between 31 January and 4 February 1995:

first, that the accused intended that a course of conduct be followed by Joe Black which would involve the commission of a crime with those three elements: and second, that the accused intended or believed that any fact or circumstance the existence of which is one of those elements would exist at the time when the offence was to take place; that is, that Joe Black would be able to carry out the crime; and third, that the accused performed acts or spoke or wrote words which commanded, requested, proposed, advised, encouraged or purported to authorize Joe Black to pursue that course of conduct involving the murder of Franco Mastroianni in respect of the first charge and Carol Mastroianni in respect of the second charge.

178. For these purposes, what you need to know is that if X is to be found guilty of intentionally causing serious injury, a jury must be satisfied beyond reasonable doubt:

1. That an act or acts of X caused serious injury to the victim; and 2. That at the time of performing the act or acts X intended to cause serious injury.

182. Those two elements constitute the crime of intentionally causing serious injury.

185. The word "injury" is specially defined to include "unconsciousness, hysteria, pain and any substantial impairment of bodily function". It also includes, of course, the things which an ordinary laymen would call an "injury". It is for a jury to determine whether the actions of the accused in any particular case involved incitement to cause what the jury would call an "injury"; and further, whether those actions involved incitement to cause what the jury would call a "serious injury".

188. You should be aware that for this purpose there are only two classes of injury, namely "injury" and "serious injury". There are no other classes such as "slight injury", "very serious injury" or "extreme injury" or anything else. There are only "injury" and "serious injury".

191. At one end of the spectrum of injury is a bruise or a grazed knee or a cut requiring a Band-Aid. At the other end of the spectrum there are quadriplegia, total blindness, permanent brain damage and the like.

194. Accordingly, you may have to consider where any injury which you find that the accused may have incited to be caused falls on that spectrum, and determine whether any such injury justifies the description of "serious injury".

197. In doing so you are entitled to have regard to the likely cumulative effect of a combination of injuries.

200. The law is that in order to be guilty of the offence of intentionally causing serious injury, the accused must have acted with a particular state of mind, described by the word "intentionally". "Intentionally" means what it says: it describes an actual intention to cause serious injury; not merely injury, but serious injury.

205. Thus, to find the accused guilty of the third charge, the charge of incitement to intentionally cause serious injury, you must be satisfied beyond reasonable doubt that in Melbourne, between 1 and 4 February 1995:

first, that the accused intended that a course of conduct be followed by Joe Black which would involve the commission of a crime with those two elements; and second, that he intended or believed that any fact or circumstance the existence of which is one of those elements would exist at the time when the offence was to take place; that is, that Joe Black would be able to carry out the crime: and third, that he performed acts or spoke words which commanded, requested, proposed, advised, encouraged or purported to authorize Joe Black to pursue that course of conduct involving intentionally causing serious injury to Marguerite Bourke.

210. In respect of each of the crimes, murder and intentionally causing serious injury, an additional element of the crime is that the actions in question be performed without lawful excuse. Lawful excuse might involve such matters as self-defence. That element has no relevance in this case, and you need not direct your minds to it.

215. I agree. Although the application for leave to appeal against conviction cannot succeed, I would wish, however, to acknowledge the succinct manner in which counsel for the applicant addressed their arguments to this Court. Those counsel, who were not counsel on the applicant's trial, took up the carriage of this application on the applicant's behalf at late notice and on a "pro bono" basis.

225. The formal order of the court will be that the application for leave to appeal against conviction is dismissed. The application for leave to appeal against sentence is allowed. The appeal will be treated as having been heard instanter. The individual sentences and the total effective sentence imposed below are confirmed. The minimum term of 8 years directed to be served by her Honour will be set aside and in lieu thereof a minimum term of 7 years will be substituted. Is it necessary, Mr Prosecutor and Mr Ross, to make a declaration under s.18?

228. Brooking J.A. takes the view that because we are not imposing our own sentence but substituting a minimum term for the one imposed, it is probably not necessary to make that declaration.