R v Ritchie [1998] QCA 188

After the telephone call was received, Ballinger and his companions arrived at the unit, where Williams, Ballinger and Tracey Leivers proceeded to hit, punch and kick Hockey, telling him to get out. After his hands had been tied and he was lying on the floor, Tracey Leivers used a knife to cut his jeans off leaving his naked buttocks exposed. Ballinger hit him with a baseball bat. Later Hockey was forced into the garage of the unit and pushed into the rear of his van, which was parked there. He was shouting and screaming, and, to smother his cries and shut him up, he was pulled out again and a gag of sorts was placed in and tied around his mouth. Wilson went back inside the apartment and returned with a couple of hand weights or dumbbells with which he struck Hockey about the head. The van was then driven some distance away to a river, where it was allowed to roll into the water with Hockey still in it.

The forensic evidence at the trial was that the deceased had died in the garage as a result of skull fractures inflicted by the blows struck by Robert Wilson. If, as the jury found, Hockey was murdered, it was the accused Wilson who, in the words of s.7(a) of the Code "actually [did] the act", which, in conjunction with the requisite intention on his part, constituted the offence of murder.

The prosecution case against the appellant at trial was based on criminal responsibility under s.8 of the Criminal Code. Section 7 was not relied on in her case, although it was in respect of all of the other accused. Section 8 requires proof of three principal elements. They are, first, the formation by two or more persons of a common intention to prosecute an unlawful purpose in conjunction with one another. Secondly, the commission of an offence in the prosecution of that purpose. Thirdly, that the offence is of such a nature that its commission is a probable consequence of the prosecution of that purpose. The decision in Barlow v. The Queen (1997) 188 C.L.R. 1, which was delivered on 3 June 1997 only a week before the trial of the appellant began, established that it is possible in law for a person, who is charged with murder as a secondary offender in reliance on s.8, to be convicted only of manslaughter, even though the primary offender or offenders are guilty of murder.

The practical effect of s.8 is, in substance, to impose criminal responsibility for an unintended, but objectively not unexpected, result of carrying out an unlawful plan or purpose. Assuming that the other requirements of s.8 are satisfied, a person charged with murder in reliance on that section will be criminally responsible for that offence equally with any person who actually committed it if (but only if) murder was a probable consequence of carrying out the unlawful common intention. Since under s.302(1)(a), a killing constitutes murder only if the act that causes death is accompanied by an intention on the part of the killer to cause death or grievous bodily harm, it follows that a secondary offender may be convicted under s.8 of the murder only if a probable consequence of carrying out the unlawful common purpose was that the fatal act would be done with that intention. Otherwise, as the decision in Barlow (1997) 188 C.L.R. 1 demonstrates, the secondary offender will be criminally responsible, if at all, only for manslaughter arising out of the death of the person who is killed.

A matter that is critical to criminal responsibility of any kind under s.8 is proof of a common intention on the part of two or more persons to prosecute an unlawful purpose. The Crown is required to prove not only that on their part a common intention existed and what that intention was, but also that it was to be prosecuted "in conjunction with one another"; that is to say, jointly or together. In cases like the present, of which there have been several in this Court since Barlow was decided in 1997, it has become evident that it is possible for two or more persons to start off with a limited common intention of using physical force of a relatively moderate degree against their victim. Matters may, as is often said, then "get out of hand" to such an extent that one or more of the original participants engage in acts of violence against the victim going beyond the level of force initially contemplated.

Before some other individual can, in circumstances like that, be held criminally responsible under s.8 for an event (such as the death of the victim) that ensues from such acts of excessive violence that are not his or her own, it is essential that the jury be satisfied either that that event was a probable consequence of the level of violence originally intended by all; or that that other individual shared in the expanded intention to inflict more serious violence than had first been planned. Otherwise the intention will not be "common" to him or her. The expression "escalating" violence is sometimes used to describe actions which take place after a relatively modest beginning; but it is necessary, if s.8 is not to produce serious injustice, to establish that an accused person alleged to be responsible under its terms be proved to have formed and to have shared the intention to inflict more serious violence than was originally in the common contemplation of all concerned. Such proof may, and in many cases can only, be derived by inference from acts done, rather than words spoken, by the particular accused at the time in question, in which event the attention of the jury must be directed to the circumstances alleged to show that that individual fully shared the escalating common intention. In such cases, the very real possibility needs to be borne in mind that, starting with a common intention to inflict a moderate degree of violence on a victim, the intention of some, but not all, of the participants may, in the course of an assault, progress far beyond that of one of their number, who continues to share with them no more than the original and limited common intention to use moderate force. The possibility that the intentions of the participants may diverge after being formed in common was recognised in R. v. Jervis [1993] 1 Qd.R. 643, 655-656, where the verdict of manslaughter against Jervis was sustained on the basis that at relevant times she shared with Wiggington an intention, initially common to both of them, to wound their victim, but without knowing of and sharing Wiggington's intention to go on and kill or do him grievous bodily harm.

The present case is, or verges on, being a case of that kind. There was evidence at the trial that the appellant may have known of the telephone call summoning Ballinger and the others to the unit with the intention of using force to expel Kevin Hockey from that place. She packed his bags in anticipation of his imminent departure. On that footing, it was no doubt open to the jury to infer that the appellant shared with the other accused persons a common intention to use at least a moderate degree of force to compel him to go. When Ballinger arrived, Tabatha Sercombe is said to have pointed Hockey out to him. There was also evidence that at one stage in the encounter (which from beginning to end lasted about half an hour), the deceased was crying out that he would leave. The violence nevertheless continued and it increased in intensity. There was at that stage a question for the jury whether or not and, if so, when the appellant began to share with those inflicting it their intention to use physical violence of a more extreme level or degree of seriousness. She did not testify at the trial, but her pre-trial statements to the police contained exculpatory assertions that she wished the beating would stop, and that she had said so to the others who were present and engaging in it.

Given the position in which she was placed, as a middle-aged woman who was an invalid pensioner, in the midst of a number of younger and more powerful men and women bent on inflicting physical injury on their helpless prey, it may be that there was not a great deal that she could do to stop the violence or prevent it from progressing to the level it did. What, however, goes strongly against her in that regard is that, according to the evidence of two of the witnesses, the appellant did not remain a merely passive observer of events, but to some extent actively participated in what was happening. Using a table leg (described as about 9 inches long) from a small coffee table, she hit the deceased on his buttocks exclaiming, as she did so, "naughty boy, naughty boy". On the account given by one of the witnesses although denied by one or more of the others, she stuck the table leg up, and left it in, the anus of the luckless victim. The jury, if they accepted these versions of events, would have been entitled to reject (as they evidently did) the defence suggestion that her action in beating the deceased in this way was, as she later claimed, simply a pretence on her part. Correspondingly, it would have been open to them to infer that the appellant's intention to use physical force had, up to that time, kept pace with the developing common intention of the other assailants to inflict violence of a considerably more serious kind or degree than was proved to have been originally contemplated by all of them. It would, however, have been necessary to ensure that the jury fully appreciated that this was an indispensable step in establishing the criminal responsibility of the appellant under s.8 for the death that ultimately ensued.

It was this point in the events of that night (that is, when the appellant used the table leg to beat Hockey) that, after fluctuating a little on the matter, Mr Ridgway of counsel for the Crown on the appeal finally selected as the defining moment at which it fell to the jury to determine whether or not the appellant's state of mind or intention corresponded to that of the other assailants. At that stage, they might well have been entitled to infer that the appellant shared with the other assailants their expanded common intention to inflict serious, possibly life-threatening, violence on Hockey, and hence to conclude that the murder that followed was a probable consequence of carrying out that intention. Earlier in his submissions, counsel had been disposed to suggest that the critical moment had come only at a later stage; that is, when the deceased had been taken into the garage and put in the van. Hockey had been shouting and screaming then, and attempts were being made to shut him up. On the evidence, the appellant joined in these efforts to subdue and quieten him in the garage. In the record of the appellant's second interview with the police, which took place on 5 January 1996, questions were put to and answered by the appellant as follows:

"Okay. It's 11.55 on Friday morning. Now, Julie, is there anything that you wish to clarify concerning what you've previously stated to police during those previous interviews? It's just an opportunity for you to add to or amend anything that you previously said? --- I hit Kevin twice, as I can remember, with the leg of the coffee table and I made out I was going to put it up his bottom, but I didn't. Angie came and she did it. I went out to the car when I heard him in the car. I put a sock over his mouth and told him I would help him and he said, `Be careful they don't hurt you'. Then he was dragged out of the car again, but I ran inside. Robbie come [sic] racing past me with dumb bells that had - dumb bells and I asked what he was going to do with them and he said, `We'll fix him'.

Sorry, I missed that? --- I didn't believe this was going to happen, but - and also Robbie did take my brown blanket out of my cupboard."

A little later in the interview, the appellant said she had seen Marty [Ballinger] dragging Hockey out of the car again but she went back inside the apartment, where she saw Robbie [Wilson] come past to get the dumbbells:

"Well, what did you do? --- I just said, `Leave him. Please leave him alone'. He kept telling me to shut me bloody mouth.

So what did he do when he dragged him out of the car? --- I ran inside and that's when Robbie came to get the dumb bells and he said to me - his words were to me and Tabbie, `We'll fix him', but I didn't know he was going to do that.

SGT BAUMAN: Robbie said to you - while he's holding dumb bells in his hands Robbie said to you words to the effect that, `We'll fix him'? --- Yes.

And what did you think he meant by that ? --- Well, I ---

What do you honestly --- ? --- I thought they were going to kill him.

So when you saw Robbie with dumb bells in your hand - in his hand ? --- Yes.

And he said those words to you, you then had the belief that they were going to kill him ? --- Yes.

In the course of summing up the prosecution case against the appellant, the learned trial judge referred to this incident. What his Honour said was:

"The Crown case in this matter is that Julie Ritchie shared with others the common unlawful purpose of administering a serious protracted beating to Mr Hockey which took place between the arrival of the visitors and the time he was struck with the dumbbells. She contributed to it, among other things, by the attack, the serious attack with the coffee table leg. The evidence might suggest that there was at times anger, hatred and cruelty in what she did. She admitted in her record of interview that when he was in the garage she thought he would be killed.

There is also evidence that she gagged him when he was in the garage at that late stage. Her explanation is that she was only pretending to do that. There is, however, other evidence which would suggest that she did it for what it was and that she told Tabatha that she had done it and it might be inferred that the reason was to keep him quiet. There is also evidence that she and Miss Leivers restrained Mr Hockey in the van when he was struggling and perhaps trying to get away from his captors. There are helpful statements in her record of interview, if you give credence to them, and for some of them there is support from Tabatha."

On appeal Ms. Holmes took issue with part of this summary of events. Her complaint was that the way in which his Honour had stated the matter in fact inverted, or at any rate confused, the sequence of events and did so in a respect that was critical to the appellant's guilt or otherwise. It was true that, as his Honour said, the appellant had admitted in her record of interview that she thought that Kevin Hockey would be killed when he was in the garage; but it was misleading then to add that she had gagged him when he was in the garage "at this late stage". It was, Ms. Holmes submitted, only after the appellant had gagged him by putting "a sock over his mouth" that she became aware of an intention on the part of others, notably Robbie Wilson, to kill him. By the time she became aware of that intention, she had gone back inside the apartment, and her part in the assault on Hockey was at an end. Ballinger, in his evidence at the trial, also confirmed this sequence of events as recounted in her record of interview.

It is perhaps difficult to say whether, if this complaint stood alone, it would justify allowing the appeal. The records of interview were in evidence and the jury may have read for themselves the passages in question. From the defence standpoint, a defect in the passage complained of is that it tended to relate the moment at which the appellant realised that Hockey was going to be killed, and to identify it with an act (gagging Hockey) which she was doing. Strictly speaking, that would have been material to a case against her under s.7(b) or s.7(c) of the Code (which was a basis for criminal responsibility on her part which had been disavowed by the Crown at the trial), rather than the case against her under s.8, where it was not her subjective realisation of Wilson's intention to kill that mattered, but whether there was an objective likelihood of such an intention ensuing as a probable consequence of the prosecution of the original or evolving common intention. It was another and more general complaint by the appellant that the summing up had failed sufficiently to differentiate between the appellant's part in the events of that night, which was relevant only to s.8, and the role of her several co-accused, whose criminal responsibility for the murder relied in the alternative on one or more of paras. (a), (b), or (c) of s.7 as well as s.8 of the Code. Still, if she in fact foresaw such a consequence it might well have been difficult for her to contend that it was, objectively speaking (which is the applicable criterion under s.8), not a probable consequence of the common intention that is needed to establish responsibility under that section. The fact remains, however, that, at that juncture, a mistake by the judge in recounting the sequence of events shown by the evidence might have misled the jury in such a way as to compromise the verdict that followed. It was correct to say she had admitted in the record of interview that, when Hockey was in the garage, she thought he would be killed; but it was potentially misleading then to add that "she gagged him when he was in the garage at this late stage".

It was further submitted that, in directing on s.8 in the case of the appellant, his Honour had failed to instruct the jury with particularity on the way in which the section operated to impose criminal responsibility on the appellant in the context of the evidence as it affected her. In the final passage in the summing up in which he dealt with the impact of s.8 on the appellant, the learned judge said:

"The Crown submits that she lied throughout the record of interview, playing down her part. Mr Bullock suggests that she was very heavily involved in the common violent purpose directed against Mr Hockey. So if you are satisfied beyond reasonable doubt that she was party to a common unlawful purpose of a serious, protracted beating, and that it grew so seriously that murder became a probable consequence of its prosecution, and that she remained a party to it, that is to say when it was a probable consequence that he would be murdered, and in the course of it Mr Hockey was in fact murdered by Robbie Wilson, she is guilty of murder.

She would be guilty only of manslaughter if Robbie Wilson was guilty only of manslaughter, or if the probable consequence of carrying on with the common purpose to which she was a party was only manslaughter, as distinct from murder."

On reflection, this passage in the summing up accurately states the effect of s.8, although it does so in rather cryptic form. The appellant could no doubt be found guilty of the murder of Hockey if, in the first place, she shared with others a common unlawful purpose of inflicting a serious protracted beating on Hockey and if she continued to share that purpose when it grew so serious that murder became a probable consequence of its prosecution and if in the course of it Hockey was in fact murdered by Wilson. Equally, it is true to say she would be guilty only of manslaughter if Wilson was guilty only of manslaughter; or, alternatively, if the probable consequence of carrying on with the common purpose which she shared was only manslaughter. However, the last section of the passage (beginning "or") concerning manslaughter condenses in short compass a number of separate matters material to the appellant's criminal responsibility under s.8. In particular, it may not have revealed to the jury with sufficient clarity that, even after Wilson had formed an intention to murder, she might possibly be guilty of no more than manslaughter if she took no further part in the action against Hockey. Condensing the direction in that fashion may also have concealed from the jury the compelling need, in the case of the appellant, to decide precisely when it was that such a common intention was formed and she became a party to it. The use of the word "party" in this connection was itself fraught with some risk that the jury might too readily impute to the appellant a common intention held by other assailants which at that stage may have progressed well beyond the intention which at the time she herself possessed.

The case against the appellant under s.8 was one in which, if her guilt of murder was to be established beyond reasonable doubt, the precise sequence of events and their relation to the evolving intention needed to be addressed in some detail. Taken in conjunction with the misleading potential of the statement concerning the time at which the appellant became aware of Wilson's intention to kill and her gagging Hockey in the garage, there was a real risk that the jury may have become confused about the sequence of those events. If, as her statement in the record of interview admitted and Ballinger's evidence confirmed, she had run inside again before she realised what Wilson's intention was, it is by no means clear that she ever shared with him or others an intention that Hockey should be struck with severe force using heavy objects in order to shut him up; or even that, before she saw Wilson racing past with the dumbbells, it could be said beyond reasonable doubt that killing Hockey was a probable consequence of carrying out a common intention of administering a serious protracted beating to him. His Honour's earlier general instructions in summing up with respect to the effect of ss. 7 and 8 of the Code were given in the context of all of the accused; but the appellant's position differed in material respects sufficiently from theirs to require that in her case the operation of s.8 be explained to the jury with specific reference to her own actions and intention. The matter is one in which, after reading the substance of the summing up more than once, the impression remains that it did not altogether satisfy these requirements.

One cannot fail to have some sympathy for the trial judge in carrying out the difficult task of summing up with which he was confronted, and which in other respects he performed with admirable clarity. Five accused were being tried, and some degree of generalisation about their criminal responsibility was therefore inescapable. The danger that the case against the appellant under s.8 might become confused with the cases of the others based on both ss.7 and 8 was difficult to avoid. It would be diminished, if not eliminated, at any future trial of the appellant alone. On the material in the appeal record, it would be fairly open on the evidence for a jury to find her guilty only of the lesser offence of manslaughter and not of murder. For all of these reasons, the appeal should be allowed, the conviction and verdict set aside, and a new trial ordered.

I agree with the orders proposed by McPherson J.A. and with his reasons.

I agree with the reasons for judgment of McPherson J.A. and with the order he proposes.