R v Palmer [2005] QCA 2

Director of Public Prosecutions (Queensland) for respondent

[1] After a trial by jury the appellant was convicted on 20 July 2004 of the murders of Sharon May Clark and James Gareth Hunt and of torturing each of them before their death. She appeals against those convictions on the following grounds:

"1. The learned Trial Judge erred when he directed the jury about 'joint criminal enterprise'; and

2. His Honour the learned Trial Judge erred in the manner in which he put the Defence case to the jury."

This appeal was heard with the appeal in R v Smith[1] and this judgment is being given on the same day as judgment in that appeal.

[2] Although the appeal is against the torture convictions as well as the murder convictions, no submissions were addressed to the former. Nor was it contended that if the murder convictions stand, the torture convictions should, on any basis, be set aside.

[3] The appellant's de facto husband Brennan Emmett and Guyon Clark, the estranged husband of Sharon Clark, pleaded guilty to the two murders. They were the primary offenders. The appellant was convicted as a principal offender under s 7(1)(b), s 7(1)(c) or s 7(1)(d), or a combination of some of these, or s 8 of the Criminal Code.

[4] The principal source of these was the appellant's recorded interviews with a police officer. None of the appellant, Emmett or Guyon Clark gave evidence.

[5] At the relevant time Sharon Clark was living with Hunt and on the night in question, 22-23 December 2002, they were in bed together in a bedroom of a house which they occupied in Goondiwindi. The appellant, Emmett and Guyon Clark, together with some other people, occupied a nearby property in Goondiwindi. On the night in question Guyon Clark returned to that property saying, in the appellant's presence, that he had walked around Sharon's house and that he was going to go back and kill them. The appellant said in one of the police interviews that she did not believe this because she did not think that Clark would hurt his wife.

[6] A little later that evening the appellant went with Guyon Clark and Emmett to the house occupied by Sharon Clark and Hunt. Before doing so they all dressed in dark clothing and all wore socks on their hands. In addition Emmett wore a balaclava and Clark wore a beanie, in each case to avoid recognition. Clark armed himself with a wooden baseball bat.

[7] The appellant said that the initial plan was for Guyon Clark "to just give them a flogging and go" but Clark then said he wanted to put them into a car, take them to the bush and burn the car. She said that she tried to talk them out of it and followed so that it did not get out of hand.

[8] The appellant asked Guyon Clark how he was going to get back from the bushland location and he told her to get his father's car and pick him up. It is not clear whether it was before or after the assaults that the pick up location was identified.

[9] Guyon Clark entered the house first. She could hear him hitting them and them screaming. She said she entered the house to try to get him to stop. When she saw into the bedroom, Sharon was on the floor and Clark was kicking Hunt, probably in the head. The baseball bat was broken and had blood over it. She said she tried to get Clark to stop and then heard Sharon and Clark's two children, who were in another room, call out. She said that she could not let the children see that there was blood everywhere and held their door shut. They called out asking if it was their father and he replied saying it was not. Whether before or after this it is not clear, the appellant called out the name Billy because, she said, "I didn't want them to know that we - who was there". At one stage she could not hold the door any longer and Clark held it for a minute and then she again was able to hold it shut.

[10] When both Sharon Clark and James Hunt had been beaten senseless Clark put them into the boot of Hunt's car and they returned to their home. The appellant then got into another car and drove to a pre-arranged spot in the bush about 35 kilometres outside Goondiwindi where they were to meet. In the meantime Clark and Emmett had stopped at the house of Daniel Bernard Smith and obtained his .303 rifle and some ammunition. The appellant did not say whether this diversion was known to her. She brought a change of clothing for them because their clothes "were all covered in blood".

[11] At the pre-arranged location she had some difficulty finding the others in the bush but persisted until she found them. During the course of conversation with them there Emmett told her that they were going to have to shoot the victims because they could not be left there like that. She said she pleaded with Emmett not to do it. She said that she was then in a state of shock. A short time later she heard the gun shots. Then Clark and Emmett returned to her car, changed their clothing, and she drove off.

[12] Section 7(1)(b), (c) and (d) and s 8 of the Criminal Code are in the following terms:

(1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say -

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) every person who aids another person in committing the offence;

(d) any person who counsels or procures any other person to commit the offence.

8 Offences committed in prosecution of a common purpose

When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."

4. The acts relied on to prove liability under s 7

[13] The following acts of the appellant established a strong Crown case against her under s 7:

1. that she went with Emmett and Guyon Clark to the house occupied by Sharon Clark and James Hunt knowing that Guyon Clark had expressed the intention of killing both of them;

2. that on the journey around to that house Guyon Clark said that he had in mind giving them a flogging, bundling them in the car, taking them out to bushland and burning the car; he suggested that the appellant drive his father's car over to a pre-arranged place in bushland outside Goondiwindi where she would pick up him and Emmett; and she did not dissent from that;

3. that Emmett and Guyon Clark dressed themselves in clothes intended to conceal their identities including by covering their faces; and she herself dressed in dark clothing and wore socks on her hands;

4. that at the house she assisted in permitting the brutal assault on each of Sharon Clark and James Hunt by preventing the Clark children from coming out of their bedroom; and she assisted in concealing the identity of the offenders, especially Clark, by calling out "Billy";

5. that her involvement in that assault may have been greater than she admitted because a sock which she was wearing on one of her hands was bloodstained with the blood of both victims;

6. that, with the above knowledge, she went to the pre-arranged place in the bushland taking with her a change of clothing for each of them, their existing clothing being bloodstained;

7. that she remained there knowing that one or other of Emmett or Clark was going to shoot the senseless or near senseless victims;

8. that after the shooting Emmett and Clark changed out of their bloodstained clothing into the clean clothing which she had brought (she may have changed into hers before then);

9. that she afterwards drove them to Smith's place, where Emmett returned the gun and she and each of the others disposed of their bloodstained clothes.

[14] It was not contended on the appellant's behalf that a reasonable jury would not have been entitled on those facts to convict her as a principal offender under s 7(1)(b) or s 7(1)(c). However it was contended that, by his directions, the learned trial judge caused the trial to miscarry. His Honour gave directions on each of s 7(1)(b), s 7(1)(c), s 7(1)(d) and s 8.

5. The first ground: the direction with respect to joint criminal enterprise

[15] After setting out the above facts, though not necessarily in the way in which I have stated them, his Honour said to the jury:

"From these facts and some others which Mr Byrne mentioned to you, and which I will refer to perhaps later, Mr Byrne asks you to infer that the accused Palmer took part with Emmett and Guyon Clark in a joint criminal enterprise to murder Sharon Clark and James Hunt.

The law is that where two or more persons carry out a joint criminal enterprise each is responsible for the acts of the other or others in carrying out that enterprise.

In a sense, each authorises the other to do the things that constitute the offence, the acts of one are the acts of the other or others. In terms of section 7 of the Code, one counsels the others to commit the acts or one assists in their commission by encouraging them to do the acts.

Before the accused Palmer can be guilty of the murders the Crown must prove beyond reasonable doubt both the existence of the joint criminal enterprise and the accused's participation in it. A joint criminal enterprise is an agreement or an understanding or arrangement amounting to an agreement between two or more people to commit a crime.

The words simply connote an agreement to commit a crime.

Now, a person participates in a joint criminal enterprise either by committing the agreed crime or by being present, assists or encourages another to commit the crime, knowing that the other is committing it.

The arrangement or understanding need not be expressed between the parties to it. It will often be tacit and its existence may be inferred from the surrounding circumstances.

Furthermore, the enterprise may change or broaden or increase in scope over time. That is what Mr Byrne puts to you has happened here."

His Honour then gave an example of this and went on:

"Before the accused Palmer could be found guilty of the murders of Sharon Clark and James Hunt on the basis I have just described, the enterprise, that is, the agreement must have been to kill Sharon Clark and James Hunt or to cause them grievous bodily harm, and the accused must have taken part to some extent in the performance of the plan and must obviously have known about it.

The Crown ask you to infer that there was a joint criminal enterprise between Palmer, Guyon Clark and Emmett to kill the deceased and that it was formed, if not earlier, then at about the time they left Coolabah Court with Sharon Clark and James Hunt in the boot of Hunt's car.

If I understand Mr Byrne's submissions to you correctly, he, in fact submits that the agreement or understanding between the accused Palmer, Guyon Clark and Emmett to murder the two deceased occurred earlier. ...

[His Honour then referred to the evidence set out in [7] and [8] hereof and continued]

Now, that, if you accept that that's an accurate account of things, is evidence that before the three of them went to Coolabah Court there was a plan involving assaulting Sharon Clark and James Hunt, putting them in the boot of the car, taking them into some bushland, leaving them there and Joanne Palmer taking a second vehicle to meet at a prearranged spot and bring Emmett and Guyon Clark back. Now, that statement, of course, says nothing about what was to happen to the deceased at that bushland.

[His Honour's direction in the last paragraph was incorrect and unduly favoured the appellant; the plan, at that stage, included burning the car.]

Joanne Palmer has of course, denied knowing of the intention to kill them before Emmett had the rifle at that spot, and denied being part of any plan to kill them. Mr Byrne, though, asks you to infer from all the circumstances that that was the initial plan, and that Joanne Palmer knew of it and was part of it."

[16] The criticism of these directions is that to direct in terms of joint criminal enterprise could lead to error by the jury as to what had to be proved; and that it may have done so here. It is that criticism that I now turn to.

[17] It is submitted, correctly in my opinion, that the phrase "joint criminal enterprise" is not used in the Criminal Code and adds nothing to the provisions which are there contained. If an accused's conduct comes within the operation of any of the subsections of s 7(1) or within s 8 then she is deemed to have committed the offence whether or not she was a party to a joint criminal enterprise. And if she was a party to a joint criminal enterprise, as defined by the learned trial judge, but her conduct does not come within any of the subsections of s 7(1) or within s 8 then she is not deemed to have committed the offence.

[18] Thomas JA and Jones J pointed out in R v Walton and Harman[2] that the language of joint criminal enterprise is not usually helpful when discussing criminal liability under s 7(1)(b) or s 7(1)(c). To that I would add that it may lead to confusion. It may describe an agreement to carry out an offence, participation in which may constitute counselling or procuring within s 7(1)(d)[3] but even here it is not helpful to so describe it. In all these cases, as already mentioned, the question is not whether the accused was a party to a joint criminal enterprise but whether she did something which brought herself within one of the paragraphs of s 7(1). The language of joint criminal enterprise may be more appropriate to s 8 because that section requires a common intention to prosecute an unlawful purpose in conjunction with one another. That is the sense in which that or a similar phrase appears to be used in common law cases.[4] However, because of the risk, even with respect to s 8, that its use may lead to confusion, in my opinion the phrase should be avoided in directions with respect to s 8 as well as in directions with respect to s 7.[5]

[19] That is not to say that where that phrase has been used in directions about liability, whether under s 7 or s 8, there has been a misdirection which left open the possibility that the verdict miscarried. That will depend, in this case, on whether, looking at the whole of his Honour's directions, the jury could have been left in a reasonable doubt that what had to be proved was that Palmer aided Guyon Clark and Emmett in committing the murders or that she did or omitted to do an act for the purpose of enabling or aiding them to commit the murders or that she counselled or procured them or that she shared a common intention to commit the murders or some other unlawful purpose and the murders were a probable consequence of the prosecution of that intention.

[20] In the passages which I have set out the learned trial judge described a joint criminal enterprise as an agreement to commit a crime. But he emphasized that it was participation in a joint criminal enterprise which gave rise to liability and that participation could be either by committing the offence (s 7(1)(a)) or, by being present, assisting or encouraging another to commit it knowing that the other is committing it (s 7(1)(c)). Up to that point counsel for the appellant makes no criticism of his Honour's direction confined as it was, relevantly, to s 7(1)(c).

[21] However he submitted that what may have been a satisfactory direction up to that point, notwithstanding the use of the phrase "joint criminal enterprise", became misleading when contrasted with what his Honour then said about s 7(1) and s 8. And he submitted that a further direction on joint criminal enterprise contributed to that misleading.

"Now, in addition to asking you to infer that there was this joint criminal enterprise between the accused, Palmer, Guyon Clark and Emmett, the Crown puts its case against Palmer also under section 7, but on a slightly different and narrower basis."

His Honour then went on to explain how a person may by his or her conduct, at the scene of a crime, encourage its commission. In other words his Honour was saying here that, even if the appellant was not a party to a prior agreement to murder the victims and was not even aware prior to going to the scene of the murder in the bushland that Clark intended there to kill the victims, her conduct there could amount to aiding within the meaning of s 7(1)(c).

"The presence of an accused at the scene of the crime while it's being carried out may itself be evidence of encouragement. This is particularly so if the accused has gone freely to the scene and remains there deliberately while the crime is committed without opposing it or dissenting from what is being done by others.

You could not convict the accused on this basis unless you were satisfied beyond reasonable doubt that the accused, Palmer, actually encouraged the murders of Clark and Hunt by her presence at the scene or by some other act or gesture or statement and that the accused intended to encourage the commission of the offence by her presence."

[24] Counsel for the appellant makes no criticism of these directions, taken in isolation, nor, similarly, of his Honour's directions with respect to s 8. But he submits that, taken with the earlier directions on joint criminal enterprise, these imply, wrongly, that participation in a joint criminal enterprise imposes liability on some wider basis than that just described.

[25] The further direction on joint criminal enterprise was given the day following these directions and was in response to a request from the jury for s 7 and s 8 to be read to them again. His Honour read s 7 and then said, relevantly:

"The case against Palmer, is that she, either under section 7(1)(c) or (d), aided Emmett and Guyon Clark in committing the offences by doing the things that we discussed yesterday and Mr Byrne mentioned yesterday, and by encouraging Clark and Emmett to carry out the murders by her presence and the things she did. Or, by a combination, really, of 7(1)(c) and 7(1)(d), she took part in a joint criminal enterprise. That is a plan with Guyon Clark and Emmett to murder the two deceased.

Now, I explained to you yesterday what is meant by joint criminal enterprise, and I went over with you the evidence which is relied upon - I won't repeat that. But that's the essence of the case against Joanne Palmer, that she took part in a plan with Guyon Clark and Emmett to murder Sharon Clark and Hunt, or by her presence and by her acts, she aided and encouraged Guyon Clark and Emmett to commit the murders. Now, is that clear? All right."

His Honour then went on to read s 8 and give a further direction with respect to the application of that section, about which no criticism is made.

[26] I think that what his Honour was saying in the last passage is that there were two bases, under s 7, upon which the jury could convict the appellant of murder. The first was that she was a party to a plan to kill the victims and participated in the implementation of that plan; and his Honour put that liability as based on a combination of s 7(1)(c) and s 7(1)(d). And the second was that, assuming no prior involvement in any arrangement to kill or even seriously injure the victims, she encouraged or aided the commission of the murders by her positive presence and involvement in the bushland with knowledge of the intentions of Emmett and Clark. That is how I think the jury would reasonably have understood his Honour's directions. And if that is so, it was correct to describe the second of these as a narrower basis of involvement.

[27] If I am correct in thinking that that is how the jury would have understood his Honour's directions then I do not think that there was any real possibility that the jury may have fallen into error or confusion as was contended on the appellant's behalf. Two possible ways in which the jury may have been led into error by these directions were suggested. The first was that they may have thought it sufficient that the appellant was a party to a plan to cause grievous bodily harm to the victims and that it was not necessary also to be satisfied that the appellant took part in the implementation of that plan and the second was that they may have thought it sufficient that she was a party to a plan to cause grievous bodily harm to the victims at the house and took part in the implementation of that plan. I do not think that either of these conclusions would have been open on his Honour's directions.

[28] As to the first, his Honour specifically directed, more than once in his initial direction and again in his further direction, that the Crown must prove beyond reasonable doubt both the existence of a joint criminal enterprise and of the appellant's participation in its implementation. And as to the second, his Honour described the joint criminal enterprise as one specifically to murder the victims and of the appellant's knowing involvement in that murder.

[29] So understood, I do not think that his Honour's directions resulted in any possibility that the jury may have fallen into error or were confused as to what had to be proved against the appellant for her to be found guilty of murder, notwithstanding the introduction of the concept of joint criminal enterprise. Accordingly I would reject the first ground of appeal.

7. The second ground of appeal: error in putting the defence case to the jury

[30] Two criticisms were made here. The first was that the learned trial judge outlined the Crown case at some length and said very little about the defence case. Counsel for the appellant did not submit that that showed an imbalanced summing up, conceding that there was in fact little to be said about the defence case. Moreover the Crown case was substantial, involving 31 witnesses; only four were cross-examined and none of that touched on the state of mind or actions of the appellant. The appellant did not call or adduce evidence and her defence relied solely on statements which she gave to the police. However counsel for the appellant submitted that, having summed up in this way, the learned trial judge was required to be particularly careful in ensuring that the defence case was put accurately. It was in the light of that obligation, it was submitted, that the following criticism should be viewed.

[31] The principal criticism here is of the following passage in his Honour's directions:

"Mr Gundelach submits on behalf of Palmer that she may lack courage, she may be deficient in moral sensibility, but you should accept her account given to the police at face value, and on that account she is not guilty of the murders. And that is right, I direct you of that.

If you are satisfied that Joanne Palmer did NO more than what she told the police in those interviews, then she would not have been guilty of the murders. It is not enough that one watches a crime committed. You may think poorly of someone who does stand by and does nothing to stop a crime, but if that's what one does - observe a crime being committed - one is not guilty of taking part in the crime. One must do something more in terms of section 7 - by assisting or encouraging or aiding or urging the commission of the offence - before under section 7 one is guilty of taking part in it.

So that if you accept Mr Gundelach's submissions that the account given by Joanne Palmer to the police is accurate, in its essentials, then you would acquit her of the murders. He put it this way, you should be satisfied that she did not aid the offences, but you would no doubt be satisfied she didn't hinder them effectively."

[32] It was submitted on the appellant's behalf that his Honour was directing the jury, in effect, that they should acquit the appellant if, and implicitly only if, they accepted her version of events as told to the police officer ("If you are satisfied that Joanne Palmer did NO more than what she told the police in those interviews ... "), without adverting to the possibility that, even if they did not accept that version, they should nevertheless acquit the appellant unless they were satisfied beyond reasonable doubt that the prosecution had proved the relevant elements of the offence.[6]

[33] No doubt if those passages were construed in isolation from their immediate context there would be a great deal of force in the appellant's argument notwithstanding that, in those passages, the learned trial judge was doing no more than setting out and commenting on submissions made to the jury by the appellant's counsel. Nor would the directions have been saved by general statements about the burden of proof which his Honour made both earlier in his summing up and again towards the end. However only four sentences after the passages which I have quoted his Honour said:

"What you are concerned with is whether, on the evidence, you are satisfied beyond reasonable doubt that Joanne Palmer was a party to the offences as I've described under section 7. If she was, then you would convict her. If you are not satisfied beyond reasonable doubt, you would acquit."

[34] In the light of that direction in such close proximity to the passages criticized, and in view of the fact that it must have been plain to the jury that his Honour was, in those passages, doing no more than setting out and accepting what counsel for the appellant had submitted, I do not think that the jury would have been under any misapprehension as to the burden of proof in this respect. They would have realized from that last direction that it was for the prosecution to exclude beyond reasonable doubt the possibility that the appellant did no more than merely passively attend the place where the shooting occurred; and that, to convict her under s 7, they had to be satisfied beyond reasonable doubt that she assisted or encouraged or aided or urged the commission of the murders. It follows, in my opinion that this ground of appeal must also fail and the appeal must be dismissed.

[35] FRYBERG J: I agree generally with the reasons for judgment delivered by Davies JA. I particularly agree with his Honour's comments relating to the notion of "joint criminal enterprise". Whatever those words convey at common law, they are at best unhelpful in explaining to a jury the effect of either s 7 or s 8 of the Criminal Code. At worst they are capable of misleading a jury. They might occasionally be helpful as a shorthand description of a particular complex of facts, but they do not describe the law in this State.

[36] As Davies JA demonstrates, in the present case the summing up taken as a whole could not have misled the jury in any way adverse to the appellant.

[38] MULLINS J: I agree with the reasons for judgment of Davies JA and the order proposed by his Honour.

[1] [2005] QCA 1; CA No 240 of 2004, 4 February 2005.

[2] [2001] QCA 309 at [30].

[3] See R v Lowrie and Ross [1999] QCA 305; [2000] 2 QdR 529 at [14].

[4] See for example McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 at 113 - 114.

[5] See R v Sherrington & Kuchler [2001] QCA 105 at [11]. And reference to it in the Judges' Benchbook in the suggested draft directions with respect to s 7 should be deleted.

[6] Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193 at [57]; R v Young [2004] QCA 84; (2004) 142 A Crim R 571 at [11].