R v PDJ [2002] VSCA 211

2. I have had the advantage of reading the draft reasons for judgment written by O'Bryan, A.J.A. and agree that the applications should be dismissed for the reasons given by his Honour.

5. It seems to me plain from what his Honour has said that the trial judge's charge in respect of manslaughter contained no relevant error and that, in any event, the applicant did not lose a fair chance of acquittal by reason of that aspect of his Honour's charge. The applicant's essential case before the jury was that he was party to an agreement to assault the victim with garden stakes and to steal her motor car. It was not part of the agreement, he claimed, to assault her by stabbing or to kill her. The applicant's counsel obviously came to the forensic conclusion that the only realistic way in which the applicant could escape a finding of guilty of murder was for the jury to find him guilty of manslaughter. Hence, he submitted to them in his final address, as O'Bryan, A.J.A. points out in paragraph [39] of his reasons, that their proper verdict should be one of manslaughter and not murder because the applicant had "participated in an assault", in the sense of being a party to an agreement to commit that act, "but short of murderous intent and that ... somebody else [came] over the top, way over the top, without any consultation with him, in the use of that barbecue fork." Thus, counsel claimed, manslaughter could be found on the basis that the use of the fork to kill the victim went outside the plan to assault her with garden stakes. It was contended before us that such a basis for a verdict of manslaughter was supported by R. v. Markby[1].

8. The obvious problem with putting manslaughter to the jury on that basis was, as the learned trial judge recognised soon after it was raised by counsel at the trial, that if the death did not result from the implementation of the common agreement that was alleged by the applicant, but rather was caused by an act - the stabbing of the victim with a barbecue fork - which the applicant said was totally outside the confines of the alleged plan, it followed that, on the authorities to which O'Bryan, A.J.A. has referred - particularly in paragraphs [54], [57], [59-61] and [70] - the applicant could not have been properly found guilty of manslaughter. If his scenario were accepted by the jury, he could not have been found guilty of murder or manslaughter.

11. The learned trial judge correctly recognised, as appears from what he said in the passages reproduced in paragraphs [45], [47], [49] and [62] of the judgment of O'Bryan, A.J.A., that the only basis on which manslaughter could have properly gone to the jury was that the applicant was party to a plan to assault the victim with a fork, albeit absent any murderous intent. It is plain that such an act is unlawful and dangerous (as is assault with a garden stake). Thus, his Honour effectively told the jury that if they did not accept the applicant's version of the alleged agreement, but considered that he was party to a plan to assault the victim with a fork, but absent any intent to cause her really serious injury, they were to return a verdict of guilty of manslaughter on the basis that the applicant was thereby party to an unlawful and dangerous act which was the cause of death.

14. As I have said, that such an act was unlawful and dangerous cannot be doubted and there was no error in the trial judge telling the jury that it was open to them to find manslaughter by an unlawful and dangerous act. Such a charge was, in my view, consistent with what was said in, inter alia, Markby. In the passages from the judgment of the Acting Chief Justice in that case that are set out in paragraphs [57], [59] and [61] of the reasons of O'Bryan, A.J.A., it seems to me that his Honour was there speaking of manslaughter arising from an unlawful and dangerous act. That such a construction is to be attributed to the judgment of the learned Acting Chief Justice is effectively confirmed by McHugh, J. in Osland v. R.[2] in the passage set out in paragraph [70] of the judgment of O'Bryan, A.J.A.

17. In the circumstances, that the learned trial judge found a basis for leaving

manslaughter with the jury clearly enough worked to the advantage of the applicant. More relevantly, there is no error in the judge's charge relating to manslaughter as was contended for by the applicant and, at the very least, he did not lose a fair chance of acquittal by reason of what his Honour told the jury on that subject.

21. For completeness, I confirm my view that, for the reasons given by O'Bryan, A.J.A., there is nothing in the sentencing application.

26. For the reasons given by O'Bryan, A.J.A., I agree that the applications should be dismissed.

31. On 12 April 2001 the applicant was found guilty of the murder of an elderly female at Frankston on 28 September 1999. It was a brutal killing and on 8 June 2001 the applicant, then aged 17 years, was sentenced to imprisonment for 16 years. A non-parole period of 12 years was fixed and a declaration made that 618 days should be reckoned as the period of detention already served under the sentence.

34. The applicant duly filed a notice of application for leave to appeal against a conviction specifying one ground: that the learned trial judge erred in his directions to the jury in relation to manslaughter. At the same time he filed a notice of application for leave to appeal against sentence specifying four grounds:

1. The sentence imposed was manifestly excessive in the circumstances.

2. The learned sentencing judge failed to give proper weight to the age of the applicant.

3. The learned sentencing judge failed to give proper weight to the prospects for rehabilitation for the applicant.

(a) in finding as a fact that the applicant had acted alone; and

(b) in sentencing the applicant on the basis that he acted alone.The Murder

43. At about 9.45 p.m. on 28 September 1999, according to her son, the deceased left her son's home and drove herself to her house in Murawa Street, Frankston, a few kilometres journey. She was driving a yellow Toyota Corolla. The deceased lived alone. At a time uncertain, but in the vicinity of 10 p.m., a person, who resided across the road from the deceased, said she saw through the curtains of her bedroom three young boys on the steps of the deceased's premises, one, with bleached blonde hair, was talking to the deceased on the steps of her premises. Between 10.15 p.m. and 10.20 p.m. two next-door neighbours of the deceased (a husband and wife) heard noises in the deceased's back yard and saw a sensor light come on in the back yard. They heard the deceased's vehicle drive away and went to investigate. They found the deceased's body lying in the backyard under a carport area adjacent to a caravan. She had been severely beaten about the head and face.

46. A post mortem examination revealed eight injuries to the head and neck area consistent with the deceased being repeatedly struck with a garden stake which had been recovered by police from the deceased's vehicle. A patterned injury to the right cheek of the deceased was found consistent with the forceful application of the sole of a shoe. Twenty-four puncture wounds mainly to the left chest in groups of two were found on the left chest consistent with twelve applications with a two-pronged instrument such as the two-pronged barbecue fork that police located in the Kananook Creek, Frankston. The fork had caused multiple puncture injuries to the heart, two puncture injuries to the left lung and one to the right lung. The cause of death was the stab injuries to the chest. The pathologist opined that a pair of shoes taken from the applicant were unlikely to have been the shoes which caused the pattern injury to the right cheek of the deceased. Nevertheless, the prosecutor submitted to the jury that the measurements of the injury to the right cheek were approximately the same as the measurements of the applicant's shoe.

49. A body of evidence gathered by the police pointed to the applicant's involvement in the murder. It is unnecessary to detail all the evidence because the applicant made admissions following his arrest of being present at the deceased's home when she was killed.

52. The applicant was recognised by a former school friend as the driver of a "small yellow car" driving westward along the Frankston-Cranbourne Road at about 10.30 p.m. on the night of the murder. He was alone in the vehicle. At 11.06 p.m. he attended at a service station at the Karingal Hub shopping centre where he purchased a set of P-plates and a drink. At about 6.15 a.m. on 29 September 1999, the deceased's motor vehicle was found abandoned in Skye Road, Frankston North. There was a wooden garden stake on the front passenger side floor. The applicant's fingerprint was found on the outside of the driver's door of the deceased's car.

55. During the trial, evidence was led to prove a possible motive for the crime. At about 3.40 pm., on 28 September the applicant made plans with a girl to run away together to Queensland. The applicant then withdrew $200 from his bank account. The Crown contended that to enable them to go to Queensland, transport was required. This was to be obtained, the Crown contended, by finding a suitably vulnerable person and robbing the person of their car. The deceased was the vulnerable person and she was robbed of her car.

58. The applicant was arrested at 9.40 a.m. on 30 September 1999 in Glenview Crescent, Frankston in the company of two youths who will be identified as LB and CW to preserve anonymity. The three youths were taken to Frankston police station for questioning. Before departing from Glenview Crescent, Detective Senior Constable Gauci asked the applicant if he knew anything about the death of the deceased. The applicant replied: "I was there. We were drunk. They wouldn't stop hitting her." Following his arrival at the Frankston police station, the applicant asked to be taken to LB's home to allow him to pick up his bag containing clothes. Gauci went back and took possession of a quantity of clothing belonging to the applicant, all of which was bloodstained with blood identified as the deceased's blood. One of the items was a pair of shoes. On the right shoe was blood. Prior to his arrest and according to their subsequent statements to the police, the applicant told LB and CW on 29 September he had been involved in a fight in a bus shelter from which he got blood on his shoe and the bottom of his trousers.

62. The applicant gave three versions of events in tape-recorded records of interview. At the trial, the applicant remained mute and the defence case was presented upon the basis of the applicant's version given in the third interview, namely that he was present with LB and CW when the deceased was killed by LB and/or CW, but he was not involved in the stabbing of the deceased.

65. I should interpolate here that the Crown argued during the trial that the applicant alone murdered the deceased and told lies involving LB and CW. LB and CW gave evidence at the trial denying any knowledge of the murder and the Crown called evidence to show they were at home when the murder occurred. If the jury were satisfied beyond reasonable doubt that the applicant, acting alone and with malice aforethought, killed the deceased with the barbecue fork, only one verdict was open, murder. Upon no basis in law could the jury find the applicant guilty of manslaughter.

68. The first interview was audio tape-recorded between 11.45 a.m. and 12.16 p.m. on 30 September. During the interview, the applicant said that he met two youths at Karingal whom he did not know and they agreed to steal a car. They saw the deceased arrive home and park her car. One youth went to the deceased's front door to tell her they had seen some people in her back yard and she invited them to go to the back yard and look for the intruders. One youth was carrying a garden stake and, when the deceased's back was turned, she was struck with the stake. The applicant said that he went into the house to look for the car keys and he saw the youths kicking the deceased. He said he told them to go easy. He said the youths came inside, located a barbecue fork and took it outside to stab the deceased several times and stomp on her face. He said that blood was splattered onto his clothing and shoes. They stole the deceased's vehicle, but dumped it after a radio report identified the vehicle in the murder. Before doing so, the applicant said he visited a petrol station and purchased P-plates and a drink. Later, after dumping the vehicle, he went to a bus shelter where the two youths tried to rob him of his money. A passer-by came to his rescue.

71. The applicant said in the first interview that the two youths claimed to know him from primary school and one of them was called "Shannon". It was "Shannon" who struck the deceased with the stake, he said.

74. The second interview was audio/video tape-recorded, commencing at 3.00 p.m. and concluding at 5.18 p.m. Early in the second interview, the applicant identified the two youths mentioned in the first interview as "Steve" and "Shannon", the latter being a long-time friend who used to live in the same street as the applicant. The applicant also said that the arrangement or plan he had with the two youths involved knocking on a door of a house in Murawa Street, telling the resident a story about seeing some "kids" in the back yard and, if asked to enter, to "knock them over or give them a knock on the head", steal the car keys and take the resident's car. They put the plan into action at the house of the applicant's former next-door neighbour in Murawa Street with "Shannon" going to the front door and "Steve" waiting around the corner. The occupier of the house did not open his security door and the plan failed.

77. The occupier of the house gave evidence of answering his door bell at about 9.40 p.m. on 28 September and seeing a youth standing on the other side of the security door. He made no identification of the youth, although, at one stage, he thought he recognised the applicant at his door.

80. The applicant said in the second interview that upon seeing the deceased drive into her driveway, he and "Shannon" went to her front door while "Steve" waited around the corner. They proposed to carry out the plan to steal the deceased's vehicle and "Steve" and "Shannon" had armed themselves with one metre long garden stake. When the deceased went to the back of the house, the applicant said he entered to look for the car keys. He said "Steve" and "Shannon" approached the deceased and he heard a thud and saw the deceased on the ground. He found two sets of keys and, upon going outside, saw "Steve" and "Shannon" striking the deceased and "Steve" stomping on her head. He said the stabbing occurred when he was in the garage. He had trouble reversing the car, so he walked over to the deceased who was breathing and "spitting " blood everywhere and some blood splattered onto his shoes and clothing. The applicant said he saw "Shannon" pick up the barbecue fork from the ground near the deceased's head. It was taken in the car to a place at Frankston beach or Kananook Creek where one of the youths threw it into the water. He repeated the story about going to sleep in a bus shelter and being woken up by two persons he believed were "Steve" and "Shannon" who proceeded to attack him. He said he was given assistance by a man walking his dog.

83. While the second interview was being conducted, police interviewed LB and CW. Each took part in a VATE interview. Neither of them showed any sign of blood or injury, and each one denied any involvement in the murder.

86. In the first two interviews, the applicant falsely implicated "Steve" and "Shannon" as he subsequently admitted in a third interview a year later. "Steve" and "Shannon" were later identified and "Shannon" was called as a witness at the trial. He denied being involved in the murder and gave evidence that he was at a girl's house in the evening and was driven home by the girl's mother at around 9.30 p.m. Defence counsel did not suggest to "Shannon" that he was involved in the murder.

89. Only the applicant was charged with murder on 30 September, following the interview.

92. The committal hearing commenced in the Children's Court at Melbourne in May 2000. LB and CW who had made esculpatory statements were called for the Crown and cross-examined by counsel for the applicant. On 19 May 2000 the applicant was committed for trial. A presentment was filed and the date for hearing was fixed for 27 November 2000. On 9 November counsel for the applicant informed the Office of Public Prosecutions that his client wished to be re-interviewed by police and that he might nominate two co-offenders in the murder.

95. The third interview was audio-video recorded on 15 November 2000 more than 12 months after the murder and the trial was re-listed for hearing on 2 April 2001.

98. In the third interview, the applicant stated that LB and CW were the two youths who were with him on the night of the offence. During the interview, the applicant stated that LB, CW and he drank a considerable amount of alcohol before deciding to rob or burgle a home, take the keys and steal a car. The plan was the same as earlier described with CW named as the person who would speak to the house occupier to report a sighting of people entering the back yard. The applicant said that his role was to find the keys and drive the car because he was the most able driver among them. He said his companions were going to hit the victim. He said that his companions picked up four garden stakes from a plantation opposite the Monash university Peninsula Campus and each of his companion carried two stakes to Murawa Street.

101. The account given in the third interview leading up to their arrival at the deceased's house is not materially different from that provided in the second interview. Much the same description was offered about the entry into the deceased's premises save that LB and CW were now nominated as the persons who attacked the deceased. The applicant described CW as the person brutally beating the deceased while LB was standing by when the applicant came outside after finding the keys. He said that he told CW to desist but he continued. He said he went into the garage but was unable to reverse the car out of the garage. When he sought help from his companions, he saw a barbecue fork stuck in the ground near the deceased's head. He bent over the deceased and was splattered by blood caused when the deceased coughed up blood.

104. The interview proceeded to tell a story very similar to that told in the second interview about the disposal of the fork at Kananook Creek and the vehicle in Skye Road. The applicant said that when he was observed driving the vehicle, apparently alone, his two companions were lying down inside the car at the time.

107. What clearly emerged from the second and third interviews were admissions by the applicant that he was a party to a plan which could involve assaulting someone, using stakes as weapons, and robbing the victim of their car. His main role was to get the keys and drive the car away. He made no admission that he was a party to a plan to cause really serious injury to the victim or to stabbing the victim with a barbecue fork.

110. Following the third interview, police again interviewed LB and CW. They denied any involvement in the murder and gave evidence for the Crown at the trial to that effect.

114. Save for the alleged error by the judge in relation to manslaughter, no error of law or of fact is raised in the appeal.

117. The case for the Crown was put to the jury in two ways. First, that the applicant was alone when he entered the deceased's premises on 28 September and he alone caused her death by bashing her with a garden stake and using the barbecue fork to inflict fatal wounds with malice aforethought. Second, that unidentified persons acting in concert with one another and with the applicant with a common purpose agreed to rob the deceased and to use "very serious physical force" against the deceased. His Honour said:

"That is the way it is put. He is responsible, it is said, because he knew all of these things, he understood that this contingency could arise, and he accepted it. The Crown in that scenario would have to establish beyond reasonable doubt all of those elements. That there was a plan, it encompassed this kind of physical injury being sustained, it involved at least the possibility of the employment of weapons and the infliction of really serious injury upon the deceased, and the knowledge and acceptance of the accused of that plan and his participation in it. But, you see, you would also have to bear in mind that the death of the deceased did not occur as a consequence of a blow with a garden stake but as a consequence of a number of stab wounds. You would need to be satisfied beyond reasonable doubt that the infliction of such wounds, the creation of such injury was within the parameters of the plan to start with and that the accused agreed effectively that he would participate in an assault of that order. In other words, you would need to have a situation beyond reasonable doubt in which the possible use of a weapon in that way was within the personal contemplation of the accused. Do you understand what I am saying to you? If one of the people, totally independently and outside of the plan, stabbed and killed the deceased, unless the accused performed that action he would not be guilty of manslaughter[3] - if it is something which is outside the realms of the agreement as he entered into it and as he contemplated, it would be effected. Do you understand that? So he must at least contemplate the potential use of violence of that order against the deceased before he can be regarded as responsible for violence of that order when it is in fact carried out."

121. In the passage cited, the principles of law of acting in concert with one or more other persons in a common enterprise explained in Lowery and. King[4] and Jensen and Ward[5] were correctly explained in the circumstances of the case and no exception was taken to the charge in that respect.

124. At different places in the charge, the judge used the words: a plan; acting in concert; common enterprise and joint enterprise, to explain how criminal liability may arise where more than one person acting in concert commit a crime. No challenge was made on appeal to the judge's use of the words referred to above. In McAuliffe v. R.[6], Brennan, C.J. and Deane, Dawson, Toohey and Gummow, JJ. in a joint judgment said:

"The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a criminal design. Such a venture may be described as a joint criminal enterprise. Those terms - common purpose, common design, concert, joint criminal enterprise - are used more or less interchangeably to involve the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime."

128. The guilty verdict does not enable this Court to determine whether the jury was satisfied beyond reasonable doubt that the applicant murdered the deceased acting alone, or in concert with another person or persons, with a common purpose to cause "very serious physical force" to the deceased. The trial judge who had the advantage of hearing all the evidence and the arguments of counsel would be in a better position than this Court to come to a conclusion after the verdict for the purposes of sentencing.[7]

132. In the course of his final address counsel for the applicant said to the jury:

"Mr Foreman, ladies and gentlemen, you don't get off scot-free if you do what [P.D.J.] did this night. In my submission to you the proper verdict here, because he participated in an assault, the proper verdict here is one of manslaughter, not murder, and this is on the basis of his common purpose being to assault with the other two. But short of the murderous intent, and that is on the basis of somebody else, probably [CW] coming over the top, way over the top, without any consultation with him, in the use of that barbecue fork."

136. Counsel proceeded to ask the jury to return a verdict of guilty of manslaughter, if they were not satisfied beyond reasonable doubt of murder.

139. It is not uncommon for defence counsel in a murder trial to ask a jury to convict of manslaughter. It may be advantageous to an accused, if a jury is hesitant about convicting of murder, for the jury to be offered a middle course which will result in the accused not going scot-free. Indeed, it is not uncommon upon arraignment of a person for murder for him or her to plead "not guilty murder - guilty manslaughter". The trial will proceed should the prosecutor not be prepared to accept the plea to the lesser charge. A question arises whether in such circumstances, after a plea is made at arraignment or the concession is made at a later stage in the trial, the judge is required to do any more than tell the jury that the plea, or the concession, is an admission of all the elements of manslaughter, a homicide offence less serious than murder which does not have as an element an intention to kill or to cause really serious injury to the deceased. A judge is only required to give such directions of law to the jury as are necessary to enable them to decide the case according to law.[8]

142. When counsel's address concluded, in the absence of the jury, his Honour raised with counsel the precise basis upon which the issue of manslaughter could properly go before the jury. Counsel replied:

"Markby[9] is the basis for it, Your Honour, and what is submitted there, common purpose was short of a murderous intent, but there is an overriding, an intent formed by one of the parties to the common purpose, the murderous intent and it is really an application of the unlawful and dangerous act principle, Your honour, effectively as I apprehend that." (Emphasis added.)

146. It will be necessary to consider the principle enunciated in Markby presently. What was not made clear to the judge was whether counsel was contending for a direction to be given to the jury concerning dangerous and unlawful act manslaughter or something else. His Honour was concerned at that stage to point out to counsel that for manslaughter by an unlawful and dangerous act, such as a serious assault, the act must cause death. The scenario contended for by the applicant's counsel was that during the course of the attack on the deceased, either LB, and/or CW, formed an intention to kill the deceased and struck the fatal blow or blows with the barbecue fork with that intention. In such circumstances, counsel argued, whilst LB and/or CW may be convicted of murder, the applicant, who only participated in the plan to assault the deceased with the garden stakes and steal her car, may be convicted of manslaughter because he was a party to the plan to assault and steal the car. The judge's concern was that, if the applicant was only a party to a plan to use the garden stakes and nothing more and the use of the garden stakes did not contribute to the death of the deceased, he could not be held criminally responsible for the death of the deceased.

149. After considerable discussion and reference to Markby, the judge informed counsel that he was reluctant to direct the jury that it could find the applicant guilty of murder or manslaughter if the death of the deceased was found to have been caused by the use of the fork, an act to which the applicant had said he was not a party.

152. Counsel for the applicant resumed his address to the jury. Following further discussion with counsel, his Honour gave his ruling on the manslaughter issue:

"With respect to the basis upon which manslaughter could be put, I consider that it could properly be presented for consideration on the basis that the jury may not be prepared to infer that any stabbing was performed by the accused with the necessary intention to constitute the crime of murder or, alternatively, that whilst he was a party to an agreement as contemplated or had as one of its elements an assault upon the deceased perpetrated with such a weapon, then again the necessary mental element of intention to kill or cause really serious bodily injury may not be present."

156. Following his Honour's directions as to a "joint enterprise", being "a plan in which an elderly woman was to be physically overborne and attacked with implements", he dealt with the elements of murder before directing the jury as to manslaughter.

159. It is desirable to set out in full the directions given to the jury:

"If you were not satisfied, however, that the accused was party to an agreement under which it was intended the death or really serious bodily injury should be sustained by the deceased, but that he was party to the performance of a conscious, voluntary and deliberate act performed by another in the stabbing, without the intention that she should suffer death or really serious injury, then of course you would come to consider the question of manslaughter. The offence of manslaughter can be committed in a number of different ways. It is necessary in the context of this case to address only one of them and that is manslaughter by means of an unlawful and dangerous act. If you were satisfied beyond reasonable doubt that the accused was a party to the commission of an assault upon the deceased, either because he acted alone or because he was one of those who had agreed in the perpetration of such an assault, and that the death of the deceased resulted from an action which fell within the parameters of the agreement into which he had entered, as I have outlined it to you, he never having agreed - the Crown not being able to exclude the reasonable possibility, rather, that he had no understanding or intention that the deceased would sustain death or really serious injury, the accused would be guilty of manslaughter if the death of the deceased resulted from that assault and the engagement in that assault could be regarded properly, or must be regarded properly as dangerous, according to the interpretation of that term in the law. Do you understand what I have put to you? That if he is involved in the activity, he has, in the way in which I have put it to you, caused the death of the deceased through the commission of an assault. But the Crown has not proved against him that he intended to kill or to cause really serious bodily injury to the deceased. He could then be found guilty of manslaughter by you on the basis that his actions were both unlawful and dangerous. Do you understand that? And those actions caused the death in the fashion that I have outlined. An unlawful act hardly requires definition in the context of this case; to stab someone is an unlawful act. Unless there is some argument of self-defence or something which is clearly not present here. The act must be dangerous and a dangerous act for this purpose is an act which a reasonable person would recognise would expose the deceased to an appreciable risk of death or injury. Striking blows with a fork would clearly satisfy that standard, I would suggest to you."

163. The directions are consistent with the principles of law relating to manslaughter by an unlawful and dangerous act enunciated in Wilson v. R.[10] in the joint judgment of Mason, C.J., Toohey, Gaudron and McHugh, JJ. and the joint judgment of Brennan, Deane and Dawson, JJ.

166. Then his Honour reminded the jury that the applicant's counsel had submitted that the jury

"could not conclude beyond reasonable doubt that his client was entirely innocent of any involvement in the stabbing of the deceased. It was an action undertaken by someone, and someone in the group, but it was clearly not within the contemplation of the accused person at any stage."

"He has submitted, however, that if you were satisfied that the accused was party to an agreement to assault the deceased and that the death of [the deceased] occurred as a consequence of an assault carried out within the limits of that agreement, then you could however still not be satisfied beyond reasonable doubt that his client intended that death or serious physical injury would be sustained by her. In that situation, submitted [counsel], your proper verdict would be a verdict of guilty of manslaughter."

172. Thus the jury was told that counsel for the applicant conceded his client could be found guilty of manslaughter and the judge said the form of manslaughter was by means of an unlawful and dangerous act which fell within the parameters of the agreement and resulted in death.

175. The essential argument presented to the Court by Mr Holdenson is that the judge erred in not leaving manslaughter to the jury upon the basis stated in Markby and it was not correct, Mr Holdenson submitted, that manslaughter by an unlawful and dangerous act was in fact left to the jury. The judge's direction constituted a miscarriage of justice, he submitted, in the sense that it deprived the applicant of a chance of acquittal that was fairly open.[11] On the other hand, Mr Morgan-Payler submitted that manslaughter was left to the jury in a manner that was quite consistent with the facts in Markby of an attack that commences without murderous intent but where one offender subsequently forms a murderous intent and strikes the fatal blow with that intent. In the present case, for manslaughter to arise the applicant must have been found to be a party to the use of the barbecue fork, or to a plan to use it, which he denied in the third record of interview, and then, unlike the offender who struck the fatal blow with an intention to kill, the jury must not have been satisfied that he had an intention to cause really serious injury.

178. Mraz v. R. was the converse of the present case for the case against Mraz being one of murder or nothing, the introduction of the topic of manslaughter was held to have operated to lessen the prisoner's chances of acquittal and there had been a miscarriage of justice. The Crown alleged that the accused was guilty of murder because the death of the victim was caused by the commission of the crime of rape upon her. The defence case was that the victim participated in consensual sexual intercourse and the death of the victim was caused unintentionally. If the jury was not satisfied of rape, the death was not unlawful. Fullagar, J. in a separate judgment agreed with the majority that the introduction of manslaughter was wrong and the application of the proviso to s.6(1) of the Criminal Appeal Act 1912 (NSW)[12] was inappropriate. He said:

"[The proviso] ought to be read, and it has in fact always been read, in the light of the long tradition of the English criminal law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice."

182. Varley v. R.[13] was a case in which the trial judge at the conclusion of the accused's address to the jury (the accused being unrepresented at that stage of the trial) said that he proposed to leave manslaughter to the jury as an alternative to murder. Barwick, C.J., in whose judgment Stephen, Mason, Jacobs and Aickin, JJ. agreed, said "that if there were a basis in the evidence on which the jury, not being satisfied of all the elements of murder, could find manslaughter, he was bound to direct the jury accordingly." In support of that proposition, the Chief Justice cited three authorities. [14]

185. Varley was a "common design" or "common enterprise" to beat or "rough up" the deceased. Three persons were involved, two of whom committed acts of excessive violence by using a baton or cosh which resulted in the death of the deceased. The trial judge told the jury that if the use of the baton or cosh was not foreseen by the appellant as a likely means of carrying out the plan, he could be found guilty of manslaughter. The form of manslaughter is not identified specifically in the judgment, but I consider it can be implied that the evidence was only capable of supporting manslaughter by an unlawful and dangerous act, the common design or plan being to give the deceased a hiding. The circumstances of Varley are not the same as those in the present case. In the present case it was possible for the jury to regard the use of the barbecue fork as beyond the "common enterprise" or plan to which the applicant had admitted in his third interview he was a party. In Varley, the Chief Justice referred to R. v. Anderson and Morris[15] which was relied upon by the applicant's counsel. There, a knife was carried and used by Anderson with intent to kill by stabbing, its use being beyond the scope of the common design. The Court of Criminal Appeal comprising five judges held that where two persons embarked on a joint enterprise, each was liable for the acts done in pursuance of that joint enterprise including liability for unusual consequences if they arose from the agreed joint enterprise, but that, if one of the adventurers went beyond what had been tacitly agreed as part of the common enterprise, his co-adventurer was not liable for the consequences of the unauthorised act, and it was for the jury in every case to decide whether what was done was part of the joint enterprise or went beyond it and was an act unauthorised by that joint enterprise. Accordingly, since the jury were directed that, in law, they could or should convict M of manslaughter even though he had no idea that A had armed himself with a knife, they were misdirected and M's conviction had to be quashed.

188. Markby[16] was decided about 18 months after Varley. Markby (M) and Holden (H) were tried together on a charge of murdering S. The Crown case was that M and H agreed to a plan or common purpose to rob S and kill him. M carried a dismantled rifle with a loaded magazine. At some stage H had possession of the rifle when it was discharged, a bullet entering S's head. M and H then carried S in a vehicle. During the journey four more shots were fired into S's head. M said H fired the four shots and H said M did so. H admitted firing the first shot accidentally. M and H were found guilty of murder based upon concert or common purpose.

191. The appeal was concerned with the direction given to the jury in relation to the circumstances in which an alternative verdict of manslaughter was open against M. M sought an acquittal on the ground that what H had done was outside the scope of the common purpose and on the further ground that M had withdrawn from any common enterprise before the shooting occurred. The judge directed the jury how they could find M guilty of manslaughter by an unlawful and dangerous act if they were not satisfied H's actions in shooting S were done with the malice necessary for murder. If M was a party to the common purpose to rob but not to murder S, he would be guilty of manslaughter. Counsel for M sought a further direction on manslaughter which was refused by the judge.

194. Gibbs, A.C.J., in whose judgment Stephen, Jacobs and Aickin, JJ. agreed, was of the opinion that the jury should have been directed that M could have been found guilty of manslaughter even if the jury had found H guilty of murder. Further, that it was the duty of the judge to have directed the jury that a verdict of manslaughter was open to them because there was a basis in the evidence for such a possible verdict. Reliance was placed upon Gammage v. R.[17] and Varley v. R.[18] Gibbs, A.C.J. said:

"If, however, two men attack another without any intention to cause death or grievous bodily harm, and during the course of the attack one man forms an intention to kill the victim, and strikes the fatal blow with that intention, he may be convicted of murder and the other participant only of manslaughter. The reason why the principal assailant is guilty of murder and the other participant only of manslaughter in such a case is that the former had an actual intention to kill whereas the latter never intended that death or grievous bodily harm be caused to the victim, and if there had not been a departure from the common purpose the death of the victim would have rendered the two participants guilty of manslaughter only."[19]

198. Mr Holdenson seized upon this statement of the law as the cornerstone for his submission that the judge erred in his directions to the jury on manslaughter and in his not permitting counsel for the applicant to rely upon this form of manslaughter.

201. Gibbs, A.C.J. re-stated the position in the following passage;

"But in the present case the jury could properly have returned a verdict of guilty of manslaughter against the applicant even if they had found that H was guilty of murder. If the jury were satisfied that the two accused men had planned to rob S and that a rifle should be carried but that no harm, or at least no grievous bodily harm, should be done to S and that S's death was, so far as the applicant was concerned, an unexpected consequence of the carrying out of the design a verdict of guilty of manslaughter would have been a proper one."

205. The category of manslaughter open to the jury in the "unexpected consequence of the carrying out of the design" is not explained in the judgment of Gibbs, A.C.J. In a separate judgment, Murphy, J. said:

"If H killed with intent to kill or inflict grievous bodily harm but this intention was not part of any common purpose shared by the applicant, then, despite H's conviction of murder, the applicant could properly be convicted of manslaughter, or acquitted entirely, if what H did was sufficiently far removed from any common purpose."

Again, the category of manslaughter is not explained in the judgment.

210. The Acting Chief Justice recognized that an inactive participant in the common design may escape liability either for murder or manslaughter. After considering R. v. Anderson and Morris, he said:

"If the principal assailant has gone completely beyond the scope of the common design, and for example 'has used a weapon and acted in a way which no party to that common design could suspect', the inactive participant is not guilty of either murder or manslaughter: R. v. Anderson, R. v. Morris."[20]

214. In the course of the charge, the trial judge in the present case directed the jury that:

"[T]he [applicant] cannot be regarded as guilty of murder or manslaughter in a practical sense if you are not satisfied beyond reasonable doubt that he either knew or agreed that that fork was to be used, or he personally contemplated the possibility of either the use of that fork or some attack being made upon the deceased of that order. Do you understand what I am saying to you? He has to be responsible for the use of the implement itself, either because he has agreed specifically to its use, or because he has entered into an agreement which would at least as a contingency, encompass its use."

218. This direction gave effect to the law explained in Markby and Anderson and Morris and offered the applicant an opportunity to be acquitted entirely.

221. The manslaughter direction to which reference was made in paragraph [47] envisaged a very different evidentiary basis: the applicant being a party to the performance of a conscious, voluntary and deliberate act performed by another in stabbing the deceased but without the intention that the deceased should be killed or suffer really serious injury. In such circumstances, the judge told the jury the applicant could be convicted of manslaughter. The judge proceeded to explain that the category of manslaughter would be unlawful and dangerous act manslaughter.

224. It was plainly right for the judge to tell the jury that in the circumstances he had described, the applicant could be found guilty of manslaughter. He did not say, but it was implicit, that the other participant who stabbed the deceased with malice for murder could be convicted of murder. That was unnecessary, for the jury's only concern was the criminal liability of the applicant.

227. Counsel for the applicant at the trial wanted the judge to offer the jury a middle course between a conviction for murder and a complete acquittal. This he did. The error complained of is that the judge explained the category of manslaughter erroneously when he told the jury:

"The offence of manslaughter can be committed in a number of different ways. It is necessary in the context of this case to address only one of them and that is manslaughter by means of an unlawful and dangerous act."

231. The categories of manslaughter have a long history in the common law. Some are almost obsolete today since the abolition of capital punishment.[21] Battery manslaughter is no longer an offence known to the common law.[22] The common law of homicide is considered in great detail in Wilson. In the joint judgment of Mason, C.J. and Toohey, Gaudron and McHugh, JJ. it was noted that in the 19th century the English courts applied the rule that, if a death occurred in the course of an unlawful act not amounting to a felony, the killing would be treated as manslaughter.[23] As the common law developed, manslaughter by an unlawful act required that the unlawful act be dangerous in the sense of carrying with it the reasonable risk of some harm.[24] In Holzer[25], Smith, J. imposed a stricter test namely, that a reasonable person in the accused's position performing the act would have realized that he was exposing the victim to an appreciable risk of really serious injury. This came perilously close to the malicious intent required for murder - an intention to cause really serious bodily injury; and in Wilson, their Honours said, "It is better to speak of an unlawful and dangerous act carrying with it an appreciable risk of serious injury."[26] Their Honours in conclusion said: "Manslaughter by an unlawful and dangerous act (in the Holzer sense) is a relevant and appropriate category of manslaughter."

234. In Wilson, Brennan, Deane and Dawson, JJ. in a joint judgment considered three categories of involuntary manslaughter. The first, manslaughter by criminal negligence, did not require consideration. The second, manslaughter by an unlawful and dangerous act, was considered alongside a third category of, so called, battery manslaughter. Every member of the court agreed that battery manslaughter is not an offence known to the common law.

237. No reference was made by the court to Markby and it was unnecessary to refer to another category of manslaughter which arises if the prosecution is unable to prove to the requisite degree that the killing was unprovoked. Provocation, if not negatived by the prosecution, reduces murder to manslaughter. It is a category of voluntary manslaughter.

240. In Osland v. R.[27], Osland and her son were tried jointly for murder, the basis being that they acted in concert or with a common purpose. Each accused relied upon provocation and self-defence. In the case of Osland, she relied upon "battered woman syndrome" to excuse or justify her conduct, but she was found guilty of murder. The jury failed to agree upon a verdict in the case of the son who fatally struck the deceased. The court had to consider the law relating to common purpose giving rise to criminal liability. McHugh, J. one of the majority judges who held that the conviction of Osland was not inconsistent with the jury's failure to reach a verdict in respect of her son, qualified the well-known statement of principle by Smith, J. in Lowery and King[28] that the persons acting in concert are equally guilty of the crime. The gloss placed on the statement of principle is "that they are all equally liable for the acts that constitute the actus reus of the crime."[29] In that context his Honour referred to Markby in the following terms:

"Markby v. The Queen also supports the conclusion that it is the wrongful acts of the perpetrator which are attributed to the person acting in concert and present at the scene. Markby establishes that if violence is one of the contemplated incidents of a joint criminal enterprise and one of the accused kills a person, the other accused can be convicted of manslaughter even though the killer is guilty of murder. This decision is consistent only with the conclusion that it is the acts constituting the actus reus, and not the crime, of the actual offender which are attributed to the other party. The liability is direct or primary, not derivative."[30]

244. There is nothing said in that analysis of Markby which defines the category of manslaughter referred to in Markby. Nevertheless, by recognising that in Markby "violence" was one of the contemplated incidents of the joint criminal venture, his Honour must be taken to have thereby acknowledged that Markby dealt with manslaughter by an unlawful and dangerous act.

247. I am of the opinion that the category of manslaughter identified in Markby is manslaughter by an unlawful and dangerous act, the second category of involuntary manslaughter identified in Wilson. I can find no justification for concluding that the court in Markby intended to expand the categories of common law involuntary manslaughter. Indeed, in Wilson, the court had the opportunity to identify Markby manslaughter as another separate and distinct category of manslaughter. It did not do so. On the other hand, it identified two categories of involuntary manslaughter currently known to the common law.

250. I do not consider there is a further category of involuntary manslaughter formulated in Markby. In Barlow v. R.[31] the Court was there concerned with the judge's direction to a jury that it was open to them to convict Barlow of manslaughter. Barlow was convicted of manslaughter and the other three accused were convicted of murder. On appeal Barlow contended that in circumstances where the principals were convicted of murder s.8 of the Queensland Criminal Code did not permit the jury to return a verdict of guilty of manslaughter against a secondary party. The conviction was quashed in the Court of Appeal of Queensland. That decision was reversed in the High Court by a majority of the Court.[32] In the joint judgment of Brennan, C.J., Dawson and Toohey, JJ., reference was made to Markby and the passage to which I referred in [48] was cited.[33] Their Honours next observed:

"Both the common law and the Code draw a distinction between an unintended death that nevertheless occurs in consequence of the prosecution of an unlawful common purpose and an actual intention on the part of either party that death should occur. However, Mark_b_y expressed the common law; it did not interpret the Code."[34]

254. In my opinion, this is a clear statement of principle that Markby manslaughter is constituted by an unlawful and dangerous act carrying with it an appreciable risk of serious injury which caused or contributed to death. The judge was considerably troubled by the uncontradicted expert evidence that stabbing by means of the barbecue fork caused the death. He was conscious that the applicant had admitted to being a party to commit an assault on the deceased, an unlawful and dangerous act carrying with it an appreciable risk of serious injury, but had not admitted to being a party to the stabbing. The elements of involuntary manslaughter include doing an act or being a party to another person's act which caused or contributed to death. Nevertheless, the judge carefully explained the evidentiary basis upon which the applicant would be guilty of manslaughter in the passage set out in [38]. The applicant was a party to an assault upon the deceased (by his own admission), the assault being a dangerous and unlawful act, and in the course of the assault one of the others has caused the death of the deceased without the applicant intending to kill or to cause really serious bodily injury to the deceased. The applicant would be criminally responsible for the acts of the other person or persons in stabbing the deceased and causing her death as a party to the intended assault. The acts of the other person or persons could be attributed to him so that he might be regarded as having inflicted the injuries which caused death.

257. The factual basis for manslaughter in the present case was very thin and difficult for the judge to explain in the light of the uncontradicted evidence that the stabbing caused death and the applicant asserted that he was not a party to the stabbing.

260. Be that as it may, in my opinion the judge's direction on manslaughter did not constitute a miscarriage of justice in the sense of depriving the applicant of a chance of acquittal that was fairly open. Leaving manslaughter to the jury in any form was very favourable to the applicant for it offered the jury the middle course sought by his counsel. If the direction was erroneous for the reasons relied upon by Mr Holdenson, I consider that no substantial miscarriage of justice has actually occurred because the factual basis for a verdict of manslaughter was so thin that there was no real likelihood that the jury would return such a verdict. The case for murder was very strong. A verdict of not guilty of both murder and manslaughter was open if the jury were satisfied that the applicant and other parties had a common purpose to inflict some harm to the victim but were not satisfied that the applicant was a party to causing really serious injury when she was stabbed.

263. I would dismiss the application for leave to appeal against conviction.

1. The sentence imposed was manifestly excessive in the circumstances.

2. The learned sentencing judge failed to give proper weight to the age of the applicant.

3. The learned sentencing judge failed to give proper weight to the prospects for rehabilitation for the applicant.

(a) in finding as a fact that the applicant had acted alone; and

(b) in sentencing the applicant on the basis that he acted alone.

276. Mr Holdenson abandoned ground 4 and argued grounds 2 and 3 together. Those grounds provide particulars of ground 1. I shall proceed upon the basis that the applicant acted alone, this being the finding of the judge and there being no challenge to his finding.

279. This was a very brutal and callous murder calling for most severe punishment. To inflict such horrendous injuries on a defenceless elderly lady in her own home must have been horrifying for the community in which she lived and very distressing indeed for her family. The applicant had no grievance against the deceased, the motive for her death was theft of her car. She became an opportunistic victim after Mr Wolfenden, a close neighbour of the deceased, frustrated the applicant's attempt to steal his car.

282. The judge commented, with justification I consider, that the applicant's conduct was a very serious example of murder for which the maximum penalty is life imprisonment and indicating a high level of culpability. The judge said that the applicant appeared to have experienced little remorse. He was intent upon falsely inculpating other persons and exculpating himself.

285. The judge said he appreciated the applicant at age 17 years had many years ahead of him and that his eventual reintegration into society must be accorded great weight in determining an appropriate sentence. I am satisfied that the judge, being very experienced in criminal cases, particularly murder cases, gave proper weight to the matter of rehabilitation. It is impossible for a judge, who considers that a long sentence of imprisonment is called for, to foresee the future life of the offender. The age of the applicant was considered carefully in terms of a long period of incarceration. His Honour said, in effect, that had the offender been older the sentence would have been higher. There can be no doubt in my mind that conduct of the kind indulged in by the applicant cannot be significantly reduced because he is a youthful offender in the sense in which that expression is used in Mills v. R.[35] A youth who roams the streets at night, drinking alcohol, planning and participating in serious criminal activities, cannot rely upon his immaturity or lack of years when he is caught.

288. Sadly, with very serious offences such as murder, armed robbery and rape, the age of the offender is reducing to an alarming level. The youthful offender can no longer expect to trade on his or her youth in such cases for the elements of deterrence, condemnation and just punishment are significant matters.[36]

291. I consider that proper weight was given to the applicant's age by the judge.

294. Ground 1 permits of little argument. I do not accept Mr Holdenson's submission that the head sentence was out of proportion to the applicant's crime and outside the range of sentence appropriate for this murder. It was within the range available in the circumstances.

297. I am of the opinion that the application for leave to appeal the sentence should be dismissed.

[1] [1978] HCA 29; (1978) 140 C.L.R. 108.

[2] [1998] HCA 75; (1998) 197 C.L.R. 316 at 346.

[3] Subsequently, by way of redirection [transcript page 575] the judge corrected the word to murder. He said, "I had been instructing you with respect to the elements of murder."

[4] R. v. Lowery and King (No. 2) [1972] VicRp 63; [1972] V.R. 560.

[5] R. v. Jensen and Ward [1980] VicRp 24; [1980] V.R. 194 at 201-202.

[6] (1995) C.L.R. 108 at .

[8] Alford v. Magee [1952] HCA 3; (1952) 85 C.L.R. 437 at 466.

[9] R.v. Markby [1978] HCA 29; (1978) 140 C.L.R. 108.

[10] Wilson v. The Queen [1992] HCA 31; (1991-1992) 174 C.L.R. 313.

[11] Mraz v. R. [1955] HCA 59; (1955) 93 C.L.R. 493.

[12] In Victoria the equivalent proviso is in s.568(1) of the Crimes Act 1958.

[13] Varley v. R. (1977) 12 A.L.R. 347.

[14] Mancini v. Director of Public Prosecutions, R. v. Gammage [1969] HCA 68; (1970) 122 C.L.R. 444; Pemble v. R. [1971] HCA 20; (1971) 124 C.L.R. 107.

[15] R. v. Anderson and Morris[1966]2 Q.B. 110.

[21] The constitutional right of a jury to return a verdict of manslaughter. R. v. Surridge (1942) 42 S.R.(N.S.W.) 278; Beavan v. R. [1954] HCA 41; (1954) 92 C.L.R. 660.

[22] Wilson v. R. [1992] HCA 31; (1991-192) 174 C.L.R. 313 at 328-332.

[24] R. v. Larkin [1943] 1 A.E.R. 217 at 219, Pemble v. R. supra at 122; D.P.P. v. Newbury [1976] UKHL 3; [1977] A.C. 500; Wilson at 323-324.

[25] R. v. Holzer [1968] VicRp 61; [1968] V.R. 481.

[27] Osland v. R. [1998] HCA 75; (1998) 197 C.L.R. 316.

[31] Barlow v. R. (1996-1997) 188 C.L.R. 1.

[32] Brennan, C.J., Dawson, Toohey and Kirby, JJ.

[35] R. v. Mills [1998] 4 V.R. 235. See also DPP v. S.J.K. and DPP v. GAS [2002] VSCA 131 at [60]- [61].

[36] R. v. Giles [1999] VSCA 208.