R v N J A No. SCCRM-01-353 [2002] SASC 113

COURT OF CRIMINAL APPEAL: Prior, Lander and Gray JJ

PRIOR J: The appellant appeals against his convictions of murder, wounding with intent to do grievous bodily harm and attempted armed robbery.

In the early hours of Saturday, 10 December 1999, the appellant was in a car with four other young men. They were driving away from the city along North Terrace in a car, which they had stolen earlier that evening. There had been talk amongst the five of "rolling" someone to obtain a mobile phone. One of the men in the car saw a man speak on a mobile telephone as the car was approaching the intersection of North Terrace and Fullarton Road. The talk turned to action. The five agreed to rob the man of his mobile phone.

The man with the mobile phone was Colin Hillam. He was with Matthew Bourne. The two men had walked from the city along North Terrace on their way home after having been in the city to watch a band and have a few drinks. Three of the occupants of the car got out. The plan to rob went horribly wrong. Hillam was critically injured. Bourne was stabbed to death.

Hillam's evidence was that he noticed a small white car go past with the occupants looking around. The car stopped behind Hillam and Bourne. Three of the young men got out. One was the appellant, the other two Mr E and Mr M. M had a cue ball in a stocking which he said he had with him because of previous trouble at an under age rave. He was also armed with a knife. That knife was the appellant's. The appellant gave it to M as they were getting out of the car. E was also carrying a knife. Both knives were large. The blade of E's knife was about 18 centimetres in length. That given by the appellant to M was slightly shorter, of similar width but with a greater curve. The three men approached Hillam and Bourne in the vicinity of a telephone box. E was ahead of the other two. The knives were not then visible to Hillam. M's evidence was that in response to a demand by E of Hillam for his mobile phone, Hillam said, "What mobile?" and "Just fuck off, we are going home". Hillam did not give evidence of the demand for the mobile telephone. His evidence was that E first asked what he was looking at and doing with Hillam replying that they were not looking at anything and were just walking home.

The effect of Hillam's evidence was that he and Bourne kept walking and that they did not respond to further taunts from E. The three men were slowly gaining on the two of them. After telling the three men, for the third time, to leave them alone and that they did not want any trouble, Hillam said he turned around with E then rushing up towards him. Hillam said he let go of three punches at E's face and felt a whack in his side. He looked down and saw E pulling a knife out of him. Organs were protruding from the stab wound as the

knife was being pulled out. Hillam said the first he was aware of a knife was when he saw it being pulled from his left side. He yelled out to Bourne to run telling him, "they've got a knife".

Hillam sustained four wounds in all. One was a relatively minor laceration to the outside of his left knee. He also sustained a laceration to the left leg. This was some four to six centimetres long. It involved the skin and subcutaneous fat, not the muscles or arteries of the leg. There were two substantial stab wounds. One was to the left chest. Entry point was approximately 1.5 - 2 cm in length. That wound ran in a plane, deep to the subcutaneous tissues and on the muscles of the chest wall towards the tip of the left shoulder blade. It extended for a distance of approximately eight centimetres. The other stab wound was the one to the left flank from which Hillam saw organs protruding. It penetrated into the abdominal cavity and lacerated both the colon and posterior wall of the stomach. The entry point of this wound was about four centimetres in length. The wound extended some 15 centimetres from the point of entry to the posterior wall of the stomach. Hillam hailed a passing taxi to take him to hospital. From the back of the taxi Hillam said he saw his companion, Bourne, in the middle of the Maid & Magpie intersection being kicked and punched by the appellant and M. E was then approaching the deceased. It appeared to Hillam that all three were then punching and kicking Bourne.

Two taxi drivers gave evidence of seeing parts of the exchange between the five men. One said he saw one of the group of people on the opposite side of the road from him, run towards him pointing to his stomach. He also saw three people running in the same direction as he was travelling. Two of them appeared to be supporting someone in the middle with their arms under and around that person's shoulders. A fourth person was some four to five metres behind these three. The other taxi driver was travelling in the opposite direction. He described three men attacking one man. Another separate from the four was calling upon the attackers to stop. That was Hillam who soon after got into this man's taxi. Bourne also ended up in the same taxi. This taxi driver described the events he witnessed as "all very quick".

The appellant and M were jointly tried. In his evidence, M said that the knife he took from the appellant would be used to threaten. He said he never intended to use it to inflict injury on anyone. As for E and his knife, he also said he believed it was to be used as a threat but not to inflict injury or death. When the three were approaching Bourne and Hillam he said both E and he had their knives hidden. He said the appellant was just walking with them. M said that after E had demanded the mobile phone from Hillam a second time, Hillam responded telling them that he and his companion were just going home. After M had got to the other side of the road with E and the appellant there was what M described as "tension sort of rising" between E and Hillam. M described Hillam as turning around.

M said he thought Hillam was going to go for E, so he took his knife out of his right pocket and dropped it, putting the pool ball into his right hand. M said he "could sort of tell a fight was going to start" and that he started to go towards Bourne as Bourne came towards him. M said that he started going towards Bourne because he thought "obviously a fight had started and ... thought Mr Bourne might go and help Mr Hillam in beating up (E)". A struggle ensued between Bourne and M. M said that he was swinging the cue ball trying to hit Bourne and to get him off him. E intervened. So too did the appellant. Bourne was stabbed by E. M admitted to kicking Bourne. He also said he saw the appellant kick the deceased "just once". M maintained that he did not see E wield the knife and that he had no knowledge that there had been a stabbing until they were back in the car.

In his evidence, the appellant acknowledged that there was talk about rolling someone before they came upon Bourne and Hillam. He said that E pointed to Hillam and Bourne and said that they were "two guys we can roll", and that one had a mobile. The appellant said that M spoke of anyone wanting to be a part of the rolling to get out and that he did get out. However, his evidence was that he got out of the car because M "had earlier been a good friend in making sure (he) didn't get hurt or he did his part in stopping (the appellant) from getting hurt". Thinking that this was the situation where M could get hurt, the appellant said he thought he should be there to protect M saying that he "wanted to be there for" M.

The appellant was asked whether he wanted to roll the two men who were walking along North Terrace. He said he knew what the intention of E and M was and that he believed "it was to rob them of their mobile phone". When asked specifically why he was going along with it and getting out of the car he said, "to make sure M didn't get hurt". The appellant also said that as he was getting out, he decided to leave in the car a knife, which he had in his pocket for self-protection. As he was placing the knife on the back seat of the car, M asked him for it and he gave it to him. He went with E and M. The other two men remained in the front seat of the car. The appellant described the pursuit of Bourne and Hillam. He spoke of E persisting and asking for a look at the mobile Hillam had.

The appellant also described what his counsel labelled a counter attack by Hillam and Bourne on E and M. He said that Bourne and Hillam looked at each other then turned around with Hillam going for E and Bourne for M. The appellant said he was to the left of E and that he saw Hillam throw a few punches at E. M and Bourne drifted to the right of him beyond his vision. Because of the size of Hillam the appellant thought he should endeavour to help E rather than M. The appellant said that he seemed to have no effect on Hillam, so he then went to help M who was engaged in a struggle with Bourne.

Bourne had his hands about M's neck. The appellant admitted to seeing M trying to swing the pool ball. He ran to M's aid, hitting Bourne on the lower neck three times. He also said he began kicking Bourne in the side of the chest three or four times until M became upright. The appellant said after he had kicked his last kick he noticed E had arrived. He said that E "may have kicked (Bourne) a few times as well". The appellant's evidence was that he became aware of a taxi beeping its horn when Bourne and M were on the ground.

The appellant was asked whether he noticed E's knife up to the time he was conscious of a taxi coming upon the scene. He said he had not although he had a vague recollection of seeing E hold his knife behind his back when they were earlier walking up North Terrace or down Payneham Road. He did not see any knife during the course of the struggle in which Hillam was stabbed. He did not hear any reference to a knife or hear Hillam call out anything about a knife.

There was no doubt that the appellant was aware that M had a knife when they were leaving the car. His evidence was that he did not see a knife brandished or presented during any of the confrontations with Bourne and Hillam that night.

Bourne died from a single stab wound to the right side of his chest between the fifth and sixth ribs. He also sustained two scalp lacerations consistent with being caused by blows from a blunt object. There were also a number of abrasions. The fatal wound was about half way between the deceased's waist and the shoulder. The wound was consistent with being caused by a single edged blade, the sharp edge of which was facing to the rear of the deceased. The expert evidence was that the knife travelled horizontally past the right lung and caused the 30 millimetre long wound in the fibrous membranes surrounding the heart and a 30 millimetre long puncture wound in the right atrium of the heart. Given the hole in the heart, blood loss would have been rapid and continuous, causing dizziness or faintness within a minute or so and death within a few minutes. The pathologist's view was that the knife was pushed into Bourne's chest to the full extent of the 18-centimetre length of the blade. Given the pathologist's evidence, in particular, there was no dispute at the trial that the fatal blow to Bourne was struck immediately before he fell to the ground.

The evidence of Hillam, M and A about the punching and kicking of Bourne had to be considered in conjunction with the pathologist's evidence that apart from the stab wounds, the injuries which were noted at post mortem were in the nature of abrasions to Bourne's knee and elbow consistent with him falling to the ground. The pathologist's evidence was there was no evidence of injury caused by kicks or punches. The punches and kicks spoken of in evidence could not have caused a severe impact upon the deceased.

In this appeal the appellant says the trial judge erred in failing to leave self defence and failing to direct the jury pursuant to s 15 of the Criminal Law Consolidation Act 1935.

In the reasons given for refusing to leave self defence to the jury, the trial judge said that as neither the appellant nor M claimed that E acted in self defence, and as neither saw E using the knife, there was not sufficient evidence to leave the issue to the jury. More importantly, His Honour said that on their own evidence neither M nor A could have held a belief on any of the matters listed in s 15(2). There was no issue to leave to the jury. His Honour said that the defence of self defence was relevant only if the jury concluded that M and A were aiding and abetting E. It was not available if the jury concluded that Bourne was killed in the course of a joint enterprise or if the jury concluded that Bourne was killed by the intentional act of violence, which fell within s 12A of the Criminal Law Consolidation Act. Similarly, His Honour said that the defence of self defence was not left to the jury in respect of wounding Hillam with intent to do him grievous bodily harm given that the evidence of both M and A was that they did not know that E had used the knife in the course of fighting with Hillam.

True it is that the trial judge did not specifically address E's knowledge and belief or the possibility that E was acting in self-defence when he stabbed Hillam and Bourne. Nevertheless, it is implicit in His Honour's view of the evidence that no issue of self-defence by E arose.[1]

Considering the evidence with a view to determining whether the issue of self defence by E should have been left to the jury, the situation was that even on the version of events reasonably open to the jury and most favourable to the present appellant, it cannot be said that a jury acting reasonably might have found that with respect to either victim there was a reasonable possibility that E genuinely believed that his act of stabbing the victim was necessary and reasonable in self defence or in defence of M.

Similarly, with the application of s 15(4) of the Criminal Law Consolidation Act, on the view of the evidence most favourable to the appellant reasonably open on the evidence, there is no possibility that a jury acting reasonably might have failed to be satisfied beyond reasonable doubt that Hillam and Bourne responded lawfully to unlawful attacks upon them.

Likewise, a jury acting reasonably could not have found that it was reasonably possible that E genuinely believed on reasonable grounds that either Hillam or Bourne was acting unlawfully.

The evidence disproved the possibility of self-defence in any form by E. It also disproved any possibility that the appellant was acting in lawful self defence or defence of E when he became engaged in the physical altercation with Hillam and then Bourne. The only reasonable conclusion open on the evidence was that when E stabbed Hillam and Bourne and when the appellant was involved with both of them, both E and the appellant were still the aggressors and were acting unlawfully.[1] The physical exchanges occurred rapidly. That is plain from the evidence of the two accused, Hillam and the taxi drivers. There is no proper basis upon which it can be said that the attempted robbery had come to an end when Bourne was fatally stabbed.

I reject the submission put to this Court that any hint of a counter attack by Hillam and Bourne at least raised the question of self-defence. I reject the submission that it was a matter for a jury to form its conclusion as to whether any counter attack was justified as a lawful response to the approach of the three men. Against the submissions put and the evidence now relied upon, I have been unable to reach any other conclusion than that arrived at by the Court in R v C M M[1].

A further submission to this Court was that the trial judge erred in failing to relate the directions given as to self-defence in relation to aiding and abetting to the circumstances described by the appellant. In his summing up, the trial judge directed the jury that when considering whether M and A aided and abetted the alleged attacks on Hillam and Bourne, they had to consider who was the first to attack. He told the jury that if they thought Hillam and Bourne were the first to attack, the jury should consider whether they genuinely thought it necessary and reasonable to do so in response to a perceived attack by E, M and A. If it was a reasonable possibility that the intended robbery was over and that A was going first to assist E and then M, and that that was all it was, the jury could be satisfied that they were not aiding and abetting E in the murder of Bourne.

His Honour then gave a direction about how different the position was if the jury believed that E was the first to attack and that M and A joined in to assist him. In that situation the three young men being the aggressors, the jury would have to consider whether the appellant and M knew that E intended to stab Hillam or whether there was simply a fight with neither M nor A knowing what E intended, or that he intended to use the knife in the way he did.

As to that the trial judge said the jury would consider whether E at that time was acting "quite separately in using the knife"... A and M both said it was "a fight prompted by E's aggression in the course of which (M and A) were simply defending each other". The judge said if the jury was satisfied about that they would find A and M not guilty of aiding and abetting the stabbing. A similar direction was given with respect to aiding and abetting the murder of Bourne.

The submission to this Court was that the evidence bearing on the question of aiding and abetting the wounding of Hillam was not the same as the evidence bearing on the question of aiding and abetting the murder of Bourne. The directions were therefore insufficient because of a failure to give directions in the context of the evidence, particularly in the light of the later arrival of E in the struggle with Bourne.

In my view the directions given were more than sufficient. They were plain and correctly focused on the appellant's state of mind and purpose. The effect of the directions was that the jury were instructed that if the appellant's purpose was to aid and abet the commission of the crime, the appellant was guilty of the crime. If, however, it was a reasonable possibility that the appellant's purpose was to defend E and M, he was to be acquitted. The factual circumstances as deposed to by the appellant were sufficiently clear in the directions given.

Section 12A of the Criminal Law Consolidation Act 1935 provides:

"A person who commits an intentional act of violence while acting in the course or furtherance of a major indictable offence punishable by imprisonment for 10 years or more ... and thus causes the death of another is guilty of murder".

In the course of his summing up, the trial judge told the jury that with statutory murder, it is not necessary that the accused had intended to cause death or grievous bodily harm, given that the crime is defined in "in such a way that the crime is committed if death results from an intentional act of violence perpetrated while acting in the course of, or in furtherance of a major indictable offence punishable by imprisonment for 10 years or more". The trial judge properly directed the jury that the offence of attempted armed robbery was such a major indictable offence. He then told the jury that it was common ground between the prosecution and the accused that E stabbed Bourne and that the stabbing caused Bourne to die.

His Honour then spoke of four issues upon which the jury had to be satisfied before the accused were guilty of statutory murder. His Honour identified the first of these as being whether the act of violence was committed in the course of or in furtherance of the attempted armed robbery. The trial judge told the jury that if they were not satisfied that the act of violence was committed in the course of the attempted armed robbery or in the course of extricating themselves from the attempted armed robbery, the jury must find the accused not guilty. If the jury was satisfied of that fact, they were then to consider whether there was an act of violence. His Honour then said to the jury:-

"I direct you, as a matter of law, that the introduction of the knife into this affray, for the purpose of threatening or intimidating, or for the purpose of stabbing another is an act of violence. It constitutes a form of assault. If you find that E presented the knife for the purpose of threatening or intimidating Hillam, or for the purpose of stabbing him, that constitutes an act of violence".

His Honour then told the jury that the next question was whether the act of violence caused Bourne's death. As to this the trial judge said:-

"the law takes a common sense view about causation. It looks to see if there is a causal link or a causal connection between one act and another. Did one act cause another to occur? The act does not have to be the sole cause of the other act occurring. It is enough, if it is a substantial cause. It is enough if it is shown that, but for that one event, all the other events would not have happened as they did.

It is the Crown case that if the knife had not been presented and used at the commencement of this attempted armed robbery, the death of Bourne could not have occurred. It says that having presented the knife, E used it to stab Hillam and then to stab Bourne. The Crown says he was attacking both for the purpose of the armed robbery, or for the purpose of extricating themselves from it. The defence says there is no possible causal link between the presenting of the knife at that early stage in the robbery and the later stabbing of Bourne. It says that E had become very aggressive, that he was acting quite independently of the others and that he made a separate decision to stab Bourne.

You will decide ... whether you are satisfied that the presenting of the knife at the very outset of this attempted armed robbery caused Bourne's death".

His Honour then told the jury that if they were satisfied the act of violence was committed whilst all the accused were in the course of the attempted armed robbery, or extricating themselves from it, there were two alternative routes by which it was open to find the two accused, A and M, guilty of statutory murder. Those routes were joint enterprise or aiding and abetting. Directions as to joint enterprise and aiding and abetting then followed.

In this appeal it is said that the trial judge erred in directing the jury that the mere presentation of the knife could have caused Bourne's death. The submission was that the causal chain is necessarily broken by the further acts of stabbing by E. Absent any contemplation of those further acts by the appellant the presentation of the knife alone could not be found to have caused Bourne's death. Thus, causation should not have been left on the act of a presentation of the knife.

It was submitted that there were a number of steps and time between any possible connection of presenting the knife for the robbery and the stabbing that caused Bourne's death. At the very least, it was submitted that because of the intervention of E's freewill between the act of mere presentation and the stabbing of Bourne, a more extensive direction was required than that given in the passage just cited from the summing up.

I think it is plain from the directions of the trial judge that the jury was being asked to consider whether E produced the knife not only as an intentional act or voluntary act but also with the intention of threatening or intimidating. No other conclusion is reasonably open. One can hardly doubt that E produced the knife in the course of the attempted armed robbery. The evidence before the jury was consistent with E stalking Hillam with the knife behind his back ready for use. A proper inference was that all three, E, M and the appellant were alert to the fact that the knife might be used to get the mobile phone from Hillam. The evidence demonstrates how swiftly things occurred. The only reasonable inference on the evidence was that E produced the knife to do what in a general sense he was obviously planning to do. Indeed, it may be said that was why he had the knife behind his back ready to use.

On the evidence before the jury, a proper assessment of the plan was that E had the knife behind his back to produce it, to intimidate and threaten. Inevitable inferences from the evidence were that E had his knife there ready to use and at the time of resistance when Hillam stood his ground that E pulled out the knife and stabbed Hillam.

The direction given by the trial judge was proper and consistent with the decisions of the High Court in Ryan v R[1] and Royall v R[1]. The trial judge identified the earliest act of E, which could have been selected by the jury, as an act causing Bourne's death[1]. He left it for the jury to be satisfied that the presenting of the knife at the very outset of the attempted armed robbery caused Bourne's death. In Royall, Mason CJ agreed with an observation by Burt CJ in Campbell v R[1], that it is enough if juries are told that the question of cause for them to decide is not a philosophical or a scientific question but a question to be determined by them, applying their commonsense to the facts as they find them, they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter. Here, the trial judge told the jury that whether the act of violence identified caused Bourne's death was a question with respect to which "the law takes a commonsense view about causation". In Royall, Deane and Dawson JJ referred to a person's conduct being a substantial or significant cause of death being sufficient to sustain a conviction for murder. The jury's task is to determine "whether the connection between the conduct (identified) and the death of the deceased was sufficient to attribute causal responsibility"[1].

The effect of the submission put for the appellant in this appeal was to seek to isolate any stabbing of Bourne as the sole cause of Bourne's death. Courts have repeatedly said that a death can occur as a result of more than one cause. As Toohey and Gaudron JJ pointed out in Royall[1],

"The jury must be told that they need to reach a conclusion as to what caused the deceased's death. That does not mean that the jury must be able to isolate a single cause of the death; there may be more than one such cause".

In R v Butcher[1], the court rejected as appropriate an attempt to isolate the cause of death and to identify it as the entry of the knife into the body of the deceased, or the rushing forward of the deceased.

"A single cause of death is not always able to be isolated. As a matter of law there need not be a sole cause of death, and in the instant case the presentation of the knife towards the stomach of the deceased, while standing three to four feet away, as well as the assumed forward movement of the deceased, may be seen to combine so that both can be postulated as legal causes of the death of the deceased."

In the instant case, the direction given by the judge has not been shown to be inappropriate in the circumstances. He had to identify an act of violence in the course of or in furtherance of the attempted robbery, which the jury could determine caused Bourne's death. The presentation of the knife into the affray was capable of being a cause of Bourne's death just as the later act of stabbing was. It was not erroneous to identify and direct by reference to the single act of presentation. The stabbing of Bourne soon after could have been joined with it or even considered separately. The trial judge was entitled to leave it for the jury to determine whether the facts, as they found them, established death being caused by the act of producing the knife in the course of or in furtherance of an attempted armed robbery. I would reject the second ground of appeal.

A further complaint is that the trial judge erred in directing the jury that the appellant would be guilty of attempted armed robbery even if he intended to do no more than protect M. Reliance is placed upon the appellant's evidence that he only would assist the others if they were attacked. It was submitted that if that was the appellant's only intention and he did not appreciate that his presence might encourage or assist others in their criminal enterprise, he was not criminally liable.

The trial judge directed the jury that even if the jury was of a view that the appellant was simply there to assist M, the jury could nonetheless conclude that A was in fact party to the plan, albeit in a limited way. On the appellant's own evidence he would render support or assistance as needed. To render support and assistance made the appellant a party to the plan to rob. I think the direction given by the judge was correct. The appellant was linked in purpose with E. That justified the directions given.[1]

I reject the submission that the verdict of guilty of murder is unsafe. The appellant relied upon the evidence of his state of mind, that he had never seen violence perpetrated by the co-accused in the past and that he was genuinely of good character and not violent. Reliance was also placed upon the evidence that the appellant reluctantly joined in. Against this evidence it was not appropriate to conclude that the appellant encouraged or assisted E in the stabbing of Bourne.

The jury was entitled to reject the material relied upon by the appellant or to find that it did not raise a reasonable doubt about his complicity in the offences found proved. There was ample evidence upon which the jury could reasonably conclude that the appellant was party to the plan to rob, that he contemplated the possible infliction of grievous bodily harm or aided and abetted its infliction. In particular, his own evidence was that knowing that M might well be trying to inflict really serious injury to Bourne by hitting him on the head with a make-shift cosh, he nonetheless proceeded to kick Bourne at the same time.

The reality is that the proposed robbery came awfully unstuck. It was open to the jury to conclude that it was not abandoned until after the appellant and the other two with him walked away after Bourne had been stabbed. Everything that happened up until that time including any acts of violence was to be regarded as taking place during the course of the proposed robbery.[1]

50. LANDER J: For the reasons given by Prior J, I agree that this appeal should be dismissed.

51. GRAY J: I agree with the order proposed by Prior J for the reasons he has prepared.

JUDGMENT CITATIONS AS THEY APPEAR IN THE JUDGMENT

1. See R v C M M [2002] SASC 21 [34]

2. R v C M M [2002] SASC 21 at 43; Zecevic v Director of Public Prosecutions (Victorian) [1987] HCA 26; (1987) 162 CLR 645

3. R v C M M [2002] SASC 21

4. [1967] HCA 2; (1967) 121 CLR 205 at 218

5. (1991) 172 CLR 398

6. Ryan v R [1967] HCA 2; (1967) 121 CLR 205 at 218

7. (1981) WAR 286 at 290

8. Royall v R [1991] HCA 27; (1991) 172 CLR 378 at 411

9. (1991) 172 CLR 398 at 423

11. Georgianni v R [1985] HCA 29; (1985) 156 CLR 473 at 480

12. White v Ridley [1978] HCA 38; (1978) 140 CLR 342 at 351; R v Jenson and Ward [1980] VicRp 24; 1980 VR 194 at 201