The New South Wales position
173 In Regina v. White (1989) 41 A. Crim. R. 237 on an indictment in the same form as that used in the present proceedings, the accused was charged in the alternative. Gleeson, CJ. noted:-
"The Crown case against the accused was put in two alternative ways. One alternative was that it was the appellant who actually pulled the trigger that activated the gun that fired the shot and killed the deceased. Alternatively, it was alleged that, if he did not actually use the murder weapon that killed the deceased, he planned the murder and aided, abetted, counselled or procured the shooting of the deceased by some other person."
174 Although there was, in that case, no argument challenging the form of the indictment or the appropriateness of a trial on such bases, there was equally no criticism by the court of the course taken.
175 In Regina v. Sourelos (CCA, unreported 6 September 1984) in relation to a misdemeanour (to which, at common law, all participants were equally complicit) it was argued that the case on the sole count was left on the alternative bases of principal and accessory without adequate instruction on unanimity. The appeal was dismissed without the court expressly concluding such a course was open or having to consider closely the unanimity direction. The court held that the charge embraced appropriately the personal acts of the accused and his assistance to others as proving his guilt of a statutory offence of cultivation and on that basis the direction eventually given was correct. That offence, by statute, could be committed in circumstances involving both direct and indirect participation. Similarly see the analysis of McHugh, J. in Davis v. The Queen (1991) 66 ALJR 22.
176 On the precise question before this court, we were informed that there was no authority in this State directly on point. It will therefore be necessary to consider the history and development of any relevant principles and to determine their content.
177 The pleading argument should be considered in the light of an examination of the history, principles and practice of criminal pleadings as adopted in this State or as inherited and then a comparison made with the position as revealed in texts and other decisions elsewhere.
178 The history of the development of the New South Wales practice and procedure in the regulation of criminal proceedings on indictment may be found in "A History of the Supreme Court of New South Wales" (J.M. Bennett, Law Book Company, 1974, 71-75).
179 In New South Wales, the forms of indictment required by the common law were mitigated by statute. Short forms were prescribed under the Criminal Law Amendment Act 1883. Their history is reviewed in the judgment of Allen, J. in Regina v. Glynn (1994) 33 NSWLR 139. As his Honour points out, those short forms were rescinded on 31 December 1987.
180 The short forms that had been prescribed pursuant to s.461 of the Criminal Law Amendment Act 1883 (46 Vic. No. 17) which by that section were "sufficient for the purpose" and "deemed sufficiently to state the offence" had been continued in force by s.2 of the Crimes Act 1900 until the rescission referred to in Glynn (supra). Those forms in respect of specific offences enabled the statement of the offence in a more concise manner than that required by the common law. The requirements of the common law are referred to in Glynn (supra) by Allen, J. in the extracts he sets out from the seventh edition of Archbold's Summary of the Law Relative to Pleading and Evidence in Criminal Cases by John Jervis (published in 1838).
181 The principles and particularly in relation to principals and accessories may be found discussed in "A Treatise on Criminal Pleading with precedents of Indictments, Special Pleas & c. adapted to Practice" (Vol. 1, 2 ed. by Thomas Starkie, Esq., London, 1822, pp.81-88 inclusive).
182 The relevant forms were prescribed by the judges of the court on 27 September 1884 and are to be found in McNaughton, "A Synopsis of Indictable Offences" published by the Government Printer in 1885. Those forms included Form 4 in which the indictment for murder is set out as charging that AB "did feloniously and maliciously murder JN". Such a form reflected s.318 of the Criminal Law Amendment Act which provided for the sufficiency of such a form in the special case of murder. That section continued:-
"And it shall be sufficient, in any indictment against an accessory to murder, … , to charge the principal in the manner hereinbefore specified, and then to charge the accused as an accessory, in the manner heretofore accustomed."
183 Section 303 of that Act provided:-
"Every accessory before the fact to any such felony may be indicted, convicted, and sentenced, either before or after the trial of the principal felon, or together with such felon - or be indicted, convicted and sentenced, as a principal in the felony - and shall be liable, in either case, to the same punishment as the principal felon is subject to - whether the principal felon has been tried or not, or is or not amenable to justice."
184 Section 302 of that Act provided that a principal in the second degree was liable to the same punishment as the principal in the first degree.
185 It was not necessary to provide by statute for any particular form of indictment distinguishing between the degrees of complicity for principals as the same form of indictment was appropriate at common law for principals generally. But in The King v. Gordon (1789) 1 Leach 515 the distinction between the appropriateness of an indictment for a principal, including a principal in the second degree and that appropriate for an accessory, is noted.
186 There are modern decisions where the immateriality of the distinction between degrees of complicity for principals is apparent, eg., Regina v. Smith & Kirton (CCA, unreported 15 February 1990) where the Crown restricted its case to that class of accessories present at the crime, ie., principals in the second degree and Davis (supra) where the majority of the High Court upheld the application of the proviso on the basis the applicant was a principal of one degree or the other. The remarks of Thomas, J. (with whom Shepherdson and Williams, JJ. agreed) in Regina v. Baynes (1989) 41 A. Crim. R. 405 were apparently limited to co-principals (including principals in the second degree, ie. supporters or aiders present or constructively present at the crime). His Honour at 408 said:-
"There is no doubt in any of the authorities that when two or more persons are charged with an offence in a single count, they may be criminally liable either as the principal actor or as a supporter under any applicable provision including ss.7 and 8. In that situation there is little difficulty in recognising that an accused should be convicted if the evidence showed either that he is guilty as a principal offender for his own separate acts or that he is liable (under s.7 or s.8) for the consequences of the acts of another. Both routes to conviction are available on the facts as they jury finds them to be. Even if the jury is unable to say whether the accused in question was the principal or the aider, it may convict if the evidence shows he must have been one or the other: ( Downing (1844) 1 Den. 52 [169 ER 146]; Salmon (1880) 6 QBD 79; Sperotto at 342, 344; DPP v. Merriman at 593, 595, 596-697, 603, 607; 775, 778-779, 781, 790, 796; Thompson (1979) 22 SASR 12 at 16-17). A familiar example is a robbery involving two offenders where the evidence does not clearly establish whether a particular offender (A) committed the act of violence and stealing, or whether he was the one who assisted in the provision and driving of the vehicle. In such a case so long as the evidence shows that A must have been one or the other he may properly be convicted. These alternative routes to conviction remain open on the single count."
187 The provisions of the Criminal Law Amendment Act caught up those of the Accessories and Abettors Act 1861 (24 and 25 Vict. C. 94) which had worked such a radical change avoiding the strictures of the common law in respect of the liability and charging of accessories before the fact to the extent that the Report of the Criminal Code Commission referred to the old law as being "practically superseded" by that enactment. (See the discussion in Stephens Commentaries, 9ed., Book IV at 44-48.)
188 Reflecting the adoption in New South Wales of those provisions, the form of indictment for an accessory before the fact in the particular case of homicide pursuant to s.378 and its predecessor, s.303, was to be found at Form 262 in the short forms of indictment:-
"After charging the principal with the felony, charge the accessory, thus: and the Attorney-General aforesaid further charges that DC, before the said felony was committed in form aforesaid, to wit, on the _____ day of ________, in the year aforesaid at ___________ in the Colony aforesaid, did incite, move, procure, aid, counsel, hire, and command, the said AB to commit the said felony in manner aforesaid."
189 It was a form appropriate to known degrees of complicity and a known principal.
190 Such or similar forms were found in successive editions of Hamilton & Addison, Criminal Law and Procedure New South Wales and Crawford's Proof in Criminal Cases, appearing particularly in the third edition by Tyson & McKay. They are also found in current texts and practice books. Since the rescission referred to in Glynn (supra), they have no statutory force however.
191 Section 17 of the Supreme Court Act provides for rules to be made under that Act (s.17(2)(a)) "for regulating and prescribing the practice and procedure of the court …". The Supreme Court Rules, Part 75 Rule 3D, prescribes a form of indictment. That form is as follows:-
"( Form of indictment )
( Under the description INDICTMENT on the form insert a statement of the nature of the offence, for example for murder and, if a statutory offence, insert under that statement under s… of the Crimes Act 1900 or as the case may require .
New South Wales
On 7 May 19… the Attorney General ( or Director of Public Prosecutions) on behalf of Her Majesty ( or as the case may require: see ss.4 and 16 of the Criminal Procedure Act 1986 ) charges that ( state the offence ).
( signature, full name and capacity of signatory: see s.15 of the Criminal Procedure Act 1986 .)"
192 Section 567 of the Crimes Act adds further statutory authority to the making of a rule under the Supreme Court Act prescribing forms of indictments and continues:-
"Every such form, so prescribed, shall thereafter be sufficient for the purpose, and be deemed sufficiently to state the offence, or matter, for, or in respect of which, it is framed."
The preceding is, however, the only form prescribed.
193 Section 346 provides for indictment as for a principal to be sufficient and it is apparent that s.378 continues so much of s.318 of the amendment Act as dealt with the sufficiency of an indictment against an accessory to murder or manslaughter. Both modern provisions remain to similar effect to those in the Accessories and Abettors Act 1861.
194 The present statutory modification of the common law position and the history is summarised in Gillies, The Law of Criminal Complicity (Law Book Company, 1980) pp.19-26.
195 Gillies (supra) points out that at common law a person charged as a principal in the first degree may be convicted upon proof of aiding and abetting without any obligation to amend the indictment - p.189 - and refers to authority in which, prior to the 1861 Act where there has been doubt as to the exact role of a participant, that participant has been charged in separate counts in the alternative as a principal in the first degree and as an aider. He expresses the view that such a course was unnecessary.
196 By statute, however, by virtue of the Accessories and Abettors Act 1861, s.1, if a person is charged as a principal in either degree and is proved to be an accessory, conviction is open (see Gillies, p.190). Gillies notes that the Crimes Act 1900 provision by s.346 (the effect of which is not cut down by s.378) is that an accessory may be indicted and convicted as a principal offender so that if there is doubt as to whether the defendant participated as a principal or as an accessory before the fact, it would seem to be prudent to charge him as principal (p.196) and refers to Glanville Williams, Criminal Law the General Part at pp.405-407 in a footnote.
197 Neither in the form prescribed nor in the legislation or rules is there any requirement that the form of charge referred to in s.378 is necessary nor does it appear that any impediment to charging, as here, remained after the adoption of the Accessories and Abettors Act provisions.
198 The mode of charging referred to in s.378 is in modern times unused. On its face, s.378 merely provides for another mode whereby in the special case of homicide, an accessory may be charged additional to that provided by s.346 or otherwise available.
199 Following the rescission of the short forms of indictment, it was no longer necessary that a person accused of murder be charged in the old form "did feloniously and maliciously slay". The form "did murder" has been used for many years as appropriate to charge the crime and as applicable both to principal and accessory, eg., as in Johns v. The Queen (1979-80) 143 CLR 108 and King v. The Queen (1986) 161 CLR 423 and is authorised by the practice and procedure of the court.
200 The practice of the court has, until now, without challenge, permitted an indictment to contain, for these purposes, one count charging murder in the present form. There is nothing in the New South Wales history, legislation or practice which speaks against its use in the way it was here employed. Sections 346 and 378 merely prescribe what shall be sufficient. They do not restrict the available modes of charging but, as Gillies' discussion shows, provide means to overcome the deficits the common law had developed in practice.
201 There is overseas authority on the question, in particular in the United Kingdom and Canada which have similar statutory provisions to s.346 similarly derived from the United Kingdom provisions. Regrettably the relevant decisions were not cited to us in argument.
202 The Canadian Supreme Court in Thatcher v. The Queen (1987) 39 DLR (4th) 275 and the United Kingdom Court of Appeal in Regina v. Giannetto (1997) 1 Cr. App. R. 1, in decisions involving not dissimilar circumstances and arguments, have dealt with the same problems as the appellant's submissions raise here. Those cases have been considered, albeit in a somewhat different context, in the Queensland Court of Appeal in Regina v. Leivers & Ballinger (1998) 101 A. Crim R. 175, which was particularly concerned with provisions of the Criminal Code (Qld) involving liability on bases akin to that attracted by principals in the second degree. In dismissing the appeals, the majority of court (Fitzgerald, P. and Moynihan, J.) concluded:-
"When more than one basis of criminal liability is relied on against an accused, it is, on our opinion, necessary for the jury to be unanimously satisfied that the requirements of at least one basis of liability are proved beyond reasonable doubt. It will not necessarily be sufficient for some members of the jury to be satisfied that the requirements of one basis of liability are established and for other members of the jury to be satisfied that the requirements of another basis of liability are established. However, that will be sufficient if the alternate bases of criminal liability do not involve materially different issues or consequences. The point is clearly explained in the judgment of Lamer, J. in Thatcher ."
203 In reasoning to that conclusion, their Honours had reviewed extensive authority including Thatcher (supra) and Giannetto (supra). Pincus, J. was of the view, accepting the effect of the decisions in Thatcher (supra) and Giannetto (supra), that, provided the jury were unanimous as to the verdict, it would be good, even if some jurors had reached on one basis and others on the other. He so concluded, notwithstanding the views expressed in New Zealand in Regina v. Chignell (1991) 2 NZLR 257. He said:-
"Accepting that the jury must not only be unanimous as to verdict, but also be unanimous as to the identity of the offence to which the verdict relates, Thatcher tends to support a broad approach to the latter requirement; such an approach would not, in the present case, vitiate a verdict arrived at by some jurors on the basis of s.7 and on others on the basis of s.8."
204 His Honour quoted as did the Canadian Supreme Court in Thatcher (supra) the following observations:-
"… if an accused is to be acquitted in situations when every juror is convinced that the accused committed a murder in one of two ways, merely because the jury cannot agree on which of the two ways, 'it is difficult to imagine a situation more likely to bring the administration of justice into disrepute - and deservedly so'."
205 Thatcher (supra) was a case in which the accused was charged with one count of murder arising out of the death of his ex-wife:-
"The position of the Crown throughout the trial was that Thatcher had murdered Mrs. Wilson or alternatively that he caused someone else to do so and was therefore guilty as a party to the offence pursuant to s.21 of the Criminal Code." (at 279)
206 The grounds of appeal to the Supreme Court included a challenge to an asserted failure to direct that the jury must be unanimous in relation to one or other of the alternative means of committing the offence of murder, ie., that the jury had unanimously to find that he killed his ex-wife or alternatively to find unanimously that he aided and abetted another. A defence of alibi had been raised. Section 21, the relevant Canadian Code statutory provision had the effect of making both principals and accessories equally parties to the crime.
207 Dickson, CJC., with whom Wilson, Le Dain, Beetz and Estey, JJ. concurred, and with whom La Forest and Lamer, JJ. concurred with some qualifications, said at 304:-
"… one of the principal policy arguments for not requiring jury unanimity as to which of the subsections of s.21 grounds the criminal liability of a particular accused: it would otherwise be open to co-accused to escape conviction by imbuing members of a jury with doubt as to which of the co-accused physically performed the criminal act, even if the jurors entertained no doubt that any individual co-accused either personally committed the crime or else aided and abetted in its commission. This policy concern was recognised long ago by Pollock, CB in Regina v. Swindall & Osborne (1846) 2 Car. & K. 230; 175 ER 95, a case which pre-dated the abolition of the distinction between principals and accomplices.
The court canvassed the authorities in considerable detail in Regina v. Harder (1956) 114 CCC 129; 4 DLR (2d) 150; [1956] SCR 489, and articulated the proposition that it was unnecessary for the Crown to specify in an indictment that an accused was being charged as a party rather than as a principal simpliciter."
208 His Honour noted, at 310;-
"The appellant's submission ignores the very reason why Parliament abolished the old common law distinctions: namely, they permitted guilty persons to go free. As Professor Peter MacKinnon points out in 'Jury Unanimity: A Reply to Gelowitz and Stuart', 51 CR (3d) 134 at 135 (1986), if an accused is to be acquitted in situations when every juror is convinced that the accused committed a murder in one of two ways, merely because the jury cannot agree on which of the two ways, 'it is difficult to imagine a situation more likely to bring the administration of justice into disrepute - and deservedly so'."
209 At 305 at 306, his Honour reviewed the common law position and the effect of the statute:-
"The common law did, however, draw a distinction between principals and accessories. Accessories were those who conspired with the principal in the first degree or who aided and abetted him but were neither actually nor constructively present at the scene of the crime: see Regina v. Smith (1876) 38 UCQB 218 at 227-228. Thus if Thatcher aided and abetted, rather than personally committed, I do not think it is contended that he was necessarily physically present at the murder. Therefore, his case might well not fall within the old common law rule permitted one charge but two different possible modes of participation in the offence. But this is precisely the distinction that disappeared when Parliament abolished the common law distinction between principals and accessories.
…
Thus, s.21 has been designed to alleviate the necessity for the Crown choosing between two different forms of participation in a criminal offence. The law stipulates that both forms of participation are not only equally culpable, but should be treated as one single mode of incurring criminal liability. The Crown is not under a duty to separate the different forms of participation in a criminal offence into different counts. Obviously, if the charge against Thatcher had been separated into different counts, he might well have been acquitted on each count notwithstanding that each and every juror was certain beyond a reasonable doubt either that Thatcher personally killed his ex-wife or that he aided and abetted someone else who killed his ex-wife. This is precisely what s.21 is designed to prevent."
210 His Honour was of the view that:-
"… it is no longer necessary to specify in the charge the nature of an accused's participation in the offence: Harder . Moreover, if there is evidence before a jury that points to an accused either committing a crime personally or, alternatively, aiding and abetting another to commit the offence, provided the jury is satisfied beyond a reasonable doubt that the accused did one or the other, it is 'a matter of indifference' which alternative actually occurred … It follows, in my view, that s.21 precludes a requirement of a jury unanimity as to the particular nature of the accused's participation in the offence. Why should the juror be compelled to make a choice on a subject which is a matter of legal indifference?"
211 He continued (at 309):-
"… and there is no injustice in his conviction on the indictment irrespective of whether the jurors shared the same view as to the most likely manner in which Thatcher committed the murder."
212 Since His Honour considered there was no relevant distinction at law between the alternative bases, he analysed them from a factual view point considering the application to them of the evidence noting that the only difference lay in evidence of identification and alibi.
213 Lamer, J. qualified his agreement that the point on unanimity failed in the following passage (at 313):-
"Depending on the nature of the evidence presented by the Crown, the jury unanimity issue may arise in any case where the Crown alleges factually inconsistent theories, even if those theories relate to the particular nature of the accused's participation in the offence. If the Crown presents evidence which tends to inculpate the accused under one theory and exculpate him under the other, then the trial judge must instruct the jury that if they wish to rely on such evidence, then they must be unanimous as to the theory they adopt. Otherwise, the evidence will be taken into account by some jurors to convict the accused under one theory while the fact that the evidence exculpates the accused under the other theory is being disregarded by the other jurors who are taking the latter route. In effect, the jury would be adding against the accused the inculpatory elements of evidence which cannot stand together because they are inconsistent."
214 La Forest, J. adopted a similar view.
215 If it were necessary (as it is not) to prove absence from the killing to show liability as an accessory before the fact, these remarks might have presented a problem. An attempt by the Crown to put forward under the one count such mutually exclusive bases as require proof of either presence or absence would require the direction Lamer, J. refers to.
216 In Giannetto (supra), the United Kingdom Court of Appeal, again in a wife killing case, in which, whilst there was powerful circumstantial evidence of the accused's guilt as a principal, there was also evidence of an attempted recruitment of a killer, considered the problem thus:-
"In the context of the present case it seems to us that the starting point must be s.8 of the Accessories and Abettors Act 1861, as amended, which reads:-
'Whosoever shall aid, abet, counsel or procure the commission of any indictable offence … at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted and punished as a principal offender.'
The effect of that section is that even if the appellant did no more than encourage someone else to kill his wife he was liable to be tried, indicted and punished as a principal offender, and where, as here, the prosecution, for good reason, is unable to say whether the defendant did more than encourage, it must be open to the prosecution to invite the jury as a whole to find that at least the defendant encouraged. If the jury does convict it may do so with some jurors satisfied that the defendant was actually the killer, but all will be satisfied that if not himself the killer at least he encouraged and by reason of the statutory provision in the 1861 Act which we have cited no more is necessary to prove the offence. If that approach is correct, then this ground of appeal must fail."
217 The court tested that approach by comparing it with various decisions including Thatcher (supra). Considering the 1988 Criminal Law Review Article by Professor Sir John Smith, examining the point, the judgment observed:-
"If in any given case the factual basis of the crime charged is in reality coterminous with an essential element or ingredient of the offence then we can accept without difficulty Professor Smith's formulation, and in relation to the facts of the present case it was possible to say, plainly and the prosecution did say, that if the appellant was not himself the killer, then he instigated the offence."
218 Regina v. Gaughan [1990] Crim. LR 880 and Professor Smith's commentary on it at 881 were cited for the rejection, with which the court agreed, of an asserted necessity for two counts as:-
"That was rejected by this court, Lloyd, LJ. (as he then was) saying at p.7G of the transcript that 'committing an offence as a principal and committing an offence as an accessory are two different way of participating in the same offence. They are not separate offences'."
219 The court accepted the practical reasons for not having two counts given by Dickson, CJC. in Thatcher (supra). The court concluded:-
"Having considered the authorities with some care we are satisfied that in the circumstances of this case the trial judge was right not to direct the jury that before they could convict they must all be satisfied either that the appellant killed his wife or that he got someone else to do so. They were entitled to convict if they were all satisfied that he was not the killer he at least encouraged the killing, and accordingly this ground of appeal fails.
There are two cardinal principles. The first is that the jury must be agreed upon the basis on which they find a defendant guilty. The second is that a defendant must know what case he has to meet. When the Crown alleged, fair and square, that on the evidence, the defendant must have committed the offence either as principal or as secondary offender, and make it equally clear that they cannot say which, the basis on which the jury must be unanimous is that the defendant, having the necessary mens rea, by whatever means caused the result which is criminalised by the law. The Crown is not required to specify the means, because the legal definition of the crime does not require it; and the defendant knows perfectly well what case he has to meet. Of course, if (as will very often be so) the Crown nail their colours to a particular mast, their case will, generally, have to be established in the terms in which it is put. Our judgment should give no encouragement to prosecutors casting around for alternative possibilities where the essential evidence does not show a clear case against the defendant. But the facts of the present appeal are by no means an instance of that."
220 The reference to "bases" in the commencing sentences of the second paragraph of that passage is to be understood in the light of what follows, ie., that it is necessary for the jury to be unanimous that the defendant, with the necessary mens rea, by whatever means, ie., as principal or procurer, caused the result. Indeed, on a classical analysis of the concept, that test would be too narrow. Mere encouragement without that act being a substantial and operative cause of the killing would attract liability.
221 The Court of Appeal however also extended the qualification proposed in Thatcher (supra) by Lamer and La Forest, JJ. to an alternative theory advanced by the defence. Clearly such a theory would be the availability of an alibi as striking at the possibility of the accused's presence at the killing and hence at his being a principal.