R v Whitfield

IN THE COURT OF CRIMINAL APPEAL 60790/01

HEYDON JA HULME J CARRUTHERS AJ

Tuesday, 24 December 2002 REGINA v Jonathon Troy WHITFIELD Judgment 1 HEYDON JA: I agree with Carruthers AJ. 2 HULME J: I agree with the orders proposed by Carruthers AJ and with his Honour's Reasons. 3 CARRUTHERS AJ: Jonathon Troy Whitfield (the appellant) appeals against his conviction at the Wollongong Supreme Court on 1 May 2001 on one count of murder. In the event that his appeal against conviction is unsuccessful, the appellant seeks leave to appeal against sentence on the ground that it was manifestly excessive. 4 The appellant was arraigned on 17 April 2001 before his Honour Justice Adams and a jury of twelve at the Supreme Court, sitting in Wollongong, upon an indictment containing one count, namely, "For that he on 11 January 1999 at Berkeley in the State of New South Wales did murder Ralph Terence Mason." 5 The appellant pleaded not guilty but the jury delivered a verdict of guilty on 1 May 2001. On 5 October 2001, his Honour sentenced the appellant to imprisonment for twenty years to date from 16 January 1999. His Honour fixed a non-parole period of thirteen years to date from 16 January 1999. The earliest date upon which the appellant may, therefore, be considered for release on parole is 15 January 2012. 6 Mr Mason resided in a cottage at 29 Berkeley Road, Berkeley, which is a suburb of Wollongong. 7 In the early hours of 11 January 1999 the appellant and three other young persons, as a consequence of a prior agreement between them, broke into Mr Mason's home for the purpose of robbing him of valuables and money which they had been informed were kept in his safe. Two of the offenders were armed with knives and one was armed with a metal bar or pole which had been broken off a supermarket trolley. During the course of the robbery Mr Mason was stabbed to death. This is the background to the murder count against the appellant. 8 The appellant, who was born on 23 September 1981, was a resident of Berkeley. 9 His co-offenders were Tony Pera, who was aged fifteen at the date of the offence, Reynold Glover, who was aged twelve, and Paul Latuhoi, who was also aged twelve at the date of the offence. 10 Tony Pera was also a resident of Berkeley. Reynold Glover and Paul Latuhoi, on the other hand, were residents of Marrickville who were visiting Berkeley at the time of the armed robbery. 11 All offenders were originally charged with murder. However, Pera, Latuhoi and Glover had their charges reduced to robbery in company to which they each pleaded guilty. Prior to their being called to give evidence at the subject trial, they were each granted an immunity from prosecution for murder, upon undertakings given by them to give truthful evidence at the trial of the appellant for murder. 12 In order to get the factual situation into true perspective, it is convenient to note the following findings of fact which his Honour made for the purpose of the sentencing proceedings. They involve a concise summary of the relevant evidence and, with respect, were the appropriate findings to which the totality of the evidence led. "The offender entered Mr Mason's house with three other offenders. The four of them had met earlier at the flat occupied by the offender's sister, where they planned to rob Mr Mason, whose house they knew. The offender and two of the others were wearing home made balaclavas. They took with them at least two knives and a metal handle broken off a shopping trolley. Taking the knives, the trolley bar and wearing the balaclavas demonstrated that they expected that Mr Mason might be home. This was no deterrence, however. Indeed, through the security door they saw him watching television before the offender kicked it in. He was holding a knife and, I am sure, threatened Mr Mason with it. A struggle ensued involving the offender, probably when Mr Mason rushed him in an attempt to escape through the open front door. During this struggle, Mr Mason was fatally stabbed. The knife had entered his body at the lower back at one point, causing two quite separate wounds in different directions about 12 centimetres deep. The knife was, therefore, almost completely withdrawn and then entered the body again. One wound passed through the left kidney and the other the aorta. Mr Mason had also been stabbed in the right buttock, the knife penetrating seven centimetres, stopped by the bone of the pelvis. He was also struck very hard on the head with a blunt object, almost certainly the steel trolley handle, causing a fractured skull but whether this blow occurred before or after the stabbing is uncertain. I have no doubt that the offender inflicted all stab wounds. I am unable to say that he also inflicted the head injuries, although I doubt it. I cannot say if the offender intended to kill Mr Mason but I have no doubt he intended to cause him very serious injury, probably in a panic to escape. Whilst it is clear that he intended, at least, to threaten Mr Mason, the offender probably did not think much further about the likely consequences of wielding a knife in that way. I do not, however, think that he took a backward step. The fact that three wounds, all serious, were inflicted by him demonstrates both a decision and an intention to cause very serious injury. After the struggle, the offenders fled, taking with them a compact disc player and a mobile telephone. Mr Mason followed them outside, calling for help. He went back inside and tried to use the telephone. He died very shortly after. He was 56 years old. The offender was then just four months short of his eighteenth birthday whilst, of the other offenders, one was almost sixteen and the other two not quite thirteen years of age." 13 In addition to directing the jury in relation to murder, his Honour also directed them in terms of an alternative verdict of manslaughter by a dangerous and unlawful act occurring during a joint criminal enterprise. 14 The foundational crime upon which the Crown relied for the purposes of felony murder was armed robbery with wounding under s 98 of the Crimes Act 1900 (the Act). 15 The Crown case conveniently fell into three segments. Firstly, at about the time discussions were taking place between the four co-offenders with regard to the planned robbery, the appellant expressed antipathy towards Mr Mason, who was then aged fifty-six, after the appellant had been shown a letter which Mr Mason had written to Tony Pera's sister Elizabeth. At that stage the appellant was living with Elizabeth. 16 During the course of those discussions the appellant informed his co-offenders that he believed that Mr Mason had valuables in his home and that they should rob the house. There can be no doubt that the appellant was the ringleader of this venture. He organised the makeshift balaclavas and obtained the knives. 17 The second segment involved the actual robbery, wounding and subsequent death of Mr Mason. The third segment involved admissions made by the appellant to his co-offenders, when they fled to the nearby high school yard following the stabbing of Mr Mason. 18 Tony Pera gave evidence that at the high school the appellant had the knife which, according to Tony Pera, he had used to stab Mr Mason, tucked in his T-shirt. Tony Pera deposed that the appellant said to the group, "I think I stabbed him boys". 19 Paul Latuhoi gave evidence as follows with regard to this aspect of the case: "Q. Did Johnny say anything? A. Yeah, I think so, I think he told, told us that he stabbed the bloke. Q. Sorry? A. He said that he stabbed the bloke, Ralph Mason. Q. What was his actual words? A. From what I remember, all I can remember is he said something like he stabbed the bloke. Q. 'I stabbed him', or -- A. Yeah. Q. - 'I stabbed the bloke'? A. 'I stabbed', yeah, 'I stabbed him', whatever yeah. Q. Did any of you say anything to him? A. No, we were just all quiet." 20 The evidence given by the above two mentioned witnesses in respect of these admissions was not challenged in cross-examination. 21 Christopher Pera (Tony Pera's brother) gave evidence that later on the day of Mr Mason's death, the appellant came to his home and spoke with him. Christopher Pera gave the following evidence: "Q. Did you speak with him at the front of the house? A. Yeah. Q. What did he say and what did you say? A, He just told me something bad happened. Q. What did he actually tell you, what were his words? A. He just told me that he thinks he killed someone. Q. Sorry? A. He thought he killed someone. Q. Killed? A, Yeah. Q. And what did you say to that? A. I just freaked out and I didn't believe him at first. Q. Did you say anything to him? A. Yeah I just said are you joking and he said, 'no'." 22 Although there was some restrained cross-examination of Christopher Pera in regard to this evidence, it was in fact relied upon by counsel for the appellant during the course of his closing address in support of a submission that the Crown had not established that the appellant had stabbed Mr Mason with the intent to kill or inflict grievous bodily harm. 23 It is true that the only witness who actually deposed to having seen the appellant stab Mr Mason was Tony Pera. However, each of the co-offenders deposed that it was the appellant who kicked down the wire door at the entrance to the house and entered the open timber door directly into the lounge room. Thereafter as Mr Mason either "charged at", or approached, the appellant who was armed with a knife. Thereupon the appellant and Mr Mason began to struggle whilst the appellant was holding the knife in his right hand. There was no evidence at any stage that either Tony Pera, Paul Latuhoi or Reynold Glover had stabbed Mr Mason. 24 Mr Parker, counsel for the appellant, in his address to the jury, clearly accepted that the appellant struggled with Mr Mason. Although Mr Parker did not specifically contend that the appropriate verdict was one of manslaughter, he made no submissions to the effect that a conviction for manslaughter was not open. 25 It is true that there were some conflicts, as one would expect, between the co-offenders as to what precisely happened between the time that the appellant kicked in the wire door and they fled from the house to the school. 26 Insofar as the evidence of Tony Pera is concerned, he conceded that he had, prior to giving evidence, told lies to the police and a psychologist who interviewed him at the detention centre and in other respects. The other two co-offenders were not in a position where they had to make concessions along those lines. 27 I have closely read the entire transcript of the evidence in the trial which, if I may respectfully say so, was conducted with skill, patience and courtesy by his Honour. The reality is that by the time the jury retired to consider their verdict the conclusion was almost irresistible that the appellant had stabbed Mr Mason on more than one occasion, thereby wounding him, and causing the injuries from which he shortly thereafter died. 28 His Honour appropriately warned the jury that it was "dangerous to convict the accused person on the evidence of any of these accomplices unless there is corroboration of that person's evidence" (S/U 14), and further: "There is before you no evidence that is capable of being regarded as corroboration in the legal sense of the evidence of the witnesses, Pera, Glover and Latuhoi, either expressly or implicitly, that the blows to Mr Mason's head or stab wounds were done by the accused." (S/U 15) 29 The first ground of appeal is in the following terms: "The trial miscarried because the learned trial judge directed the jury that they could convict the Appellant on the basis that he was a participant in a joint criminal enterprise when the Crown had not put its case on this basis and when the Appellant's Counsel did not address the jury on this possible basis for conviction." 30 When his Honour summed up to the jury, he put the three alternative bases for possible convictions of the appellant for murder as follows: firstly, that the appellant stabbed the victim intending to kill or inflict grievous bodily harm (conventional murder); secondly, that the victim was stabbed by one of the co-offenders intending to kill or inflict grievous bodily harm upon him during a joint criminal enterprise to rob Mr Mason whilst armed with an offensive weapon (the joint criminal enterprise basis), and, thirdly, felony murder on the basis that the stabbing was either by the appellant or another offender with him. 31 However, counsel for the appellant before this Court contends that the trial was conducted by the prosecution upon the basis of only the first and third of the above alternatives. Trial counsel did not address the jury on the second alternative and his Honour erroneously, it was contended, overruled counsel's objection to letting the second alternative go to the jury. 32 It is necessary in this context to consider how the Crown case developed. Unfortunately, no record was made of the Crown Prosecutor's opening address or that of counsel for the appellant. 33 However, the following relevant notation is to be found on the transcript of 17 April 2001 in the course of discussion before his Honour in relation to one of the anticipated legal issues in the trial. The notation is in the following form: "(The Crown Prosecutor indicated Mr Parker was correct in submitting to his Honour that the Crown will put the case against the accused on a felony murder basis, in fact on the conventional basis, open on the evidence, as well as felony murder either as the principal status or an accomplice. The Crown Prosecutor submitted that may be seen as putting the three co-offenders, who are now witnesses, in much the same position as this accused.)" (T 5) 34 Some assistance is to be found from the following remarks in the closing address by the Crown Prosecutor, which was recorded. At an early stage in her closing address, the Crown Prosecutor said: "The Crown you might remember put this case against the accused on a couple of different basis (sic) when I opened. The first basis was that you might find that it was probably what we know was the more conventional murder where someone does the act that kills the person, that the act is unlawful in that it is not an accident or it's not done in self-defence, that the person when they did that act had an intent to kill the person they have killed or to cause grievous bodily harm or very serious injury. That is available on the evidence. You would need to be satisfied on that basis that the accused (sic) with the person who did the act and that it was unlawful and that he did it not in self-defence or not as an accident or anything of that nature. But I would respectfully suggest to you that that might not be the first alternative you look at in considering whether or not this accused is guilty of murder. There is another alternative, you might remember I mentioned to you, and indeed this can be split, I suppose into two alternatives and that is murder as felony murder." (T 696-7) 35 The Crown Prosecutor then went on to explain how the Crown put its case on the basis of felony murder. 36 It is convenient also to note the following passage from the Crown Prosecutor's closing address: "The only occasion on which you might not find someone guilty of felony murder is where the gun discharges as a complete accident, for example if the person trips over and the gun discharges. Well in this particular case it could not be that Mr Mason was killed by whoever as some sort of accident given that he was stabbed in the back three times and hit over the head. That surely in no way could be seen as an accident. You would have to infer that he walked backwards or ran backwards into the knife or something for that to have occurred. This was no accident. If it arises out of panic that is sufficient to show that whoever did the act had sufficient intent that is required to prove felony murder. Self defence does not arise in a case of this nature. Self defence does not arise in a situation where an offender or offenders create the situation of emergency and they provoke a lawful attack upon themselves." (T 711) 37 Towards the end of her address, the Crown Prosecutor identified the evidence upon which the Crown relied in part to support the conventional basis of murder. The relevant passages are as follows: "Now, apart from that, what other evidence is there that Jonathon Whitfield was a principal player in this, in that he caused the damage to Mr Mason? Well, both Tony Pera and Latuhoi gave evidence that as they got away from the scene, some time after they left the scene, they gave evidence of an admission by the accused as to what he'd done. Tone Pera, page 261, said that when they got back to the high school Whitfield had the knife tucked into his shirt, or the handle bit tucked into his T-shirt, and said to us, 'I think I stabbed him boys'. And they all just looked at him and said 'No', and the (sic ) Pera says he kept walking. And then you have Latuhoi, who gives this evidence at 451, he talks about getting to the high school, 'Did Johnny say anything', 'Yeah, I think so, I think he told us that he stabbed the bloke'. Then I essentially asked him to repeat, he said, 'He stabbed, he stabbed the bloke, Ralph Mason'. And again I asked him what his actual words were, he said, 'From what I remember, all I can remember is that he said something like he stabbed the bloke, 'I stabbed him' or whatever, yeah'. Now again in cross-examination in that regard, it was again a piece of evidence that wasn't in fact challenged that there was some sort of admission made by the accused as they got away from the scene. This was not challenged. What was put then to Latuhoi was this by Mr Parker, 'In fact was what were the words that Johnny used the words, 'I think I stabbed him boys.' Now again that, if you expect that that admission was made and as I say it is not challenged, you might want to think about that, 'I think I stabbed him' and it is best for Jonathon Whitfield, 'I think I stabbed him'. Now surely although it must have been at the very least a pretty wild scene. If Jonathon Whitfield did stab him he must have known, not 'I think I stabbed him'. He must have known that that is what he did. Now again perhaps it occurred in the course of the struggle with Mr Mason, that does not excuse the accused and it might lend some credence to the evidence of the other three that they were not the ones who stabbed the victim that night and some credence even to Tony Pera who said he saw what Jonathon Whitfield did. Although if it's put to him in quite a different context, not him just stabbing the victim but it was put to him as a struggle. You've heard some evidence also from Chris Pera and I've mentioned that. He said in his evidence that he saw Jonathon Whitfield the next morning around at his place out the front, I'll just go to that passage very quickly. He was asked at 410, Q. 'Did you speak with him at the front of the house?' and he said, A. 'Yeah'. He was asked, Q. 'What did he say and what did you say?' A. 'He just told me something bad happened'. And he was asked, Q. 'What did he actually tell you what were his words?' and he said, A. 'He just told me that he thinks he killed someone' and he repeated that and he was asked, Q. 'And what did you say to that?' A. 'I just freaked out, I didn't believe him at first'. Q. Did you say anything to him? 'And I said yeah, I just said you're joking and he said A. 'No'. Now that was the subject of a challenge as I indicated earlier and as I indicated to you when counsel do put the contrary to a witness they're acting upon the instructions of the person concerned and indeed it is a requirement if there is a conflict between what a witness says and what you are instructed the case is, you're required as counsel to put the contrary and you might recall an example of that is when Miss Rachel Whitfield was giving evidence and she gave evidence to the effect that she had told the Crown solicitor, Mr Diggins that there were changes to the statement that she'd made and you might recall that I put to her precisely the terms of that conversation and that is a requirement upon counsel not in regard to absolutely everything but where there is some important and major conflict counsel should put the contrary so the witness has the opportunity of commenting upon it. And that is what happened with respect to what Mr Chris Pera said about the conversation he had with the accused in the morning after these events or the morning of these events, it was put to him that that conversation didn't really happen so that admission was challenged on behalf of the accused. That is probably the essential evidence that might take the case against the accused a little further than him being an accomplice." (T 715-717) 38 In his closing address Mr Parker dealt at some length with what he contended were serious inadequacies in the evidence given by the co-offenders. He submitted that the evidence which directly associated the appellant with the actual infliction of the stab wounds upon Mr Mason and the striking with the metal pole was so unreliable that it could not possibly be accepted and establish conventional murder to the requisite standard. 39 As to the alternative of felony murder, Mr Parker concentrated upon the foundational offence, submitting that the Crown had not established that the wounding, irrespective of who inflicted it, was a voluntary act. 40 I quote the closing passages from Mr Parker's address: "You might think, and you might think this is a strange thing for me to say in a case as serious as murder, but on this evidence the prosecution has not got near proving what we have been calling the conventional presentation of murder, that is where the Crown set out to prove an intentional act of stabbing on the accused's part where his state of mind was that he intended to cause Mr Mason's death or didn't care whether he caused Mr Mason's death or intended to do him really serious injury. I mean look at what we know of the accused's reaction after, 'I think I stabbed him boys'. The next day to Chris Pera, 'I think I killed a bloke', or words very much like that. Are they the reports of someone who the Crown puts up seriously and asks you to accept that this could well be an intentional killing with the intent either to take Mr Mason's life or to do him serious injury. Even you might think the doctor's evidence that the knife tracks that had clearly been, he thought, made by the knife penetrating once and then remaining within Mr Mason's body so that it then penetrated a second time. You might think, clearly enough on the evidence, it is reasonably likely to be consistent with the sort of injury that you would get in a struggle. You might think, on the evidence, that you'd hardly be able to do that if there was any struggle at all, to inflict a knife, two knife wounds through the very same single entry wound if you wanted to. And the same thing, although with respect to my learned friend the Crown, you might think is true as to the Crown's second presentation of the way in which the Crown argues that you will find the accused guilty of murder, what the Crown called at the start of the trial 'the Crown's second option', the 'felony murder presentation' is what my friend called it during her address today. That seemed, you would have gathered from what my friend was saying, to have moved from second option to the much preferred option. My friend was arguing to you that the Crown does not have to prove much for you to be convinced that the accused is guilty of murder on this second option. The Crown was arguing really that you didn't have to worry about the evidence of Tony Pera and the other two accomplices to be convinced that Mr Whitfield was guilty of murder on this shortcut, as I call it, or second option as my friend the Crown called it originally. When we think about what the Crown said about that is almost but not exactly right because his Honour will give you careful directions as to what felony murder is and his Honour's directions will be this centrally important idea that the accused is only guilty of murder if the Crown has proved beyond reasonable doubt that he was guilty of what's sometimes called 'the foundational crime', the serious crime that the Crown alleges that he set out to do. In this case it's the crime of armed robbery with wounding and in relation to the wounding his Honour will give you directions but the directions that he will give you will include this idea. In relation to any wound that on the evidence Mr Mason suffered, and would has got a special legal meaning that his Honour will explain, in relation to any wound that Mr Mason suffered the Crown, in order to prove that the offence of armed robbery with wounding was committed, has to prove that the person whose act caused that wound caused it by a voluntary act. That's the expression that in the end his Honour will explain to you that the Crown has to prove, and in a case like this prove beyond reasonable doubt. When we know, ladies and gentlemen, on all of this as I've been arguing unsatisfactory evidence, the Crown concedes and I argue that it's such an unsatisfactory body of evidence that we're never going to be able to know exactly what happened between the accused and Mr Mason, how can it be that when what the Crown has to prove is a voluntary act leading to any wound, including the stab wound, in a situation where that's the sort of evidence that the Crown in the end has to put some reliance on, how are you, as Mr Whitfield's jury, going to convict him of murder. You might think, among other things, that a bloke who we all met by the name of Tony Pera, he'd be laughing up his sleeve pretty much if you did. This is a case where, on all of the evidence, it's open to you, reflecting as you do as a jury the community's ideas of the community sense of values and ideas of fairness where you might have got the impression, and his Honour will give you directions of law about this as well, that the case that the Crown has ended up presenting against Mr Whitfield here, on the evidence, is much more like a case of manslaughter than a case of murder. I mean, his Honour won't direct you in these terms, but this idea will be involved in what his Honour says to you. The law is not really so stupid that young people like the people involved in this case can explode their way into some citizen's home after midnight with knives and other things, bring about as dangerous a situation as this obviously was for Mr Mason and then not pay for it. You need in this case to listen very carefully indeed to the directions that his Honour will give you about the serious crime of manslaughter and the circumstances in which a finding of guilty of manslaughter is open to you. In this case ladies and gentlemen you don't have to convict Johnny Whitfield of murder and on all the evidence that we have heard and that I have been talking about for the last hour or so, my submission to you on Mr Whitfield's behalf is that on this evidence you would not want to convict him of murder Thank you ladies and gentlemen, thank you your Honour." T 752-755) 41 Despite the Crown's submission to the contrary, I am unable to discern any specific reliance by the Crown Prosecutor in her address upon the joint criminal enterprise basis of liability for the murder of Mr Mason. There is certainly no reference to such a basis of liability in Mr Parker's address. 42 It is convenient at this stage to note that at the conclusion of Mr Parker's address, his Honour raised the question of appropriate directions to the jury in respect of aspects of the evidence, of an important nature, which were not put in issue by Mr Parker. Of course, his Honour was concerned with the principle in Browne v Dunn (1893) 6 R. 67, H.L. 43 Specifically his Honour said: "Amongst others, they were that the, (sic) I see them, that knives and a pole were taken to the premises, in particular that your client had a knife, that there was a struggle of one kind or another between your client and the deceased. That your client was holding a knife at the time, and that it was during that struggle that the wounds which caused his death, were, that is I am not talking about the head wound, but that the knife wounds were caused. They seemed to me to be the most significant parts of the evidence with which you did not take issue." (T 756) 44 There is nothing in the material before this Court to indicate that Mr Parker declined to accept the matters raised by his Honour. 45 It is convenient to note the precise terms of s 18(1) of the Act as amended, which defines murder and manslaughter: "18(1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. (b) Every other punishable homicide shall be taken to be manslaughter." 46 It is also convenient to note the precise terms of s 98 of the Act which defines the foundational offence for the purposes of felony murder relied on by the Crown. "98. Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person, robs, or assaults with intent to rob, any person, and immediately before, or at the time of, or immediately after, such robbery, or assault, wounds, or inflicts grievous bodily harm upon, such person, shall be liable to imprisonment for 25 years." 47 I turn then to the directions which his Honour gave to the jury. 48 His Honour dealt first with conventional (or mens rea) murder in the following terms: "What are the elements of the crime of murder? These are the elements which the Crown must prove beyond reasonable doubt, each one of them. The first ingredient or element is that it was act of the accused which caused the death of the deceased. There is a slight qualification I will make to that in a moment but that is the essential starting point. The Crown must establish beyond reasonable doubt that the accused inflicted the lethal blow to Mr Mason, despite the unsatisfactory evidence of Pera, Latuhoi and Glover. The prosecution submits that you would accept at least their assertions they did not stab Mr Mason and, of course, if you did so that would only leave the accused. Furthermore, you should consider that the accused was the one who first entered Mr Mason's house by breaking in the door when he knew that Mr Mason was present watching television, that the accused had a knife, that Mr Parker, on his behalf, did not take issue with the evidence of Latuhoi that the accused was involved in what was described as a struggle with Mr Mason. Indeed, the Crown pointed to the fact that M Parker put to the witnesses on the accused's behalf that such a struggle did in fact take place, although, as Latuhoi agreed, the accused and Mr Mason did not actually fall to the ground. The Prosecutor reminded you that Mr Parker did not challenge on the accused's behalf the evidence of Pera that afterwards at the school the accused has said 'I think I stabbed him, boys', and Mr Parker to put it to Latuhoi that the accused had indeed said that. He did not cross-examine Christopher Pera to suggest that his evidence the accused had told him, 'I think I killed someone' was not true. You are entitled to bear in mind, when you consider what parts of the evidence you accept, the way in which Mr Parker presented the accused's case on his behalf. You cannot treat what Mr Parker put or what he did not dispute or challenge as admissions by the accused but you could more readily accept those parts of the evidence as true, bearing in mind that the Prosecutor must nevertheless prove the case beyond reasonable doubt and the onus of doing so never shifts to the accused. The Prosecutor submitted to you that the accused's statement to Pera and Latuhoi that he thought he stabbed Mr Mason was more than mere speculation but must have reflected at least knowledge that he was in close proximity and the knife he was wielding felt as though it had entered Mr Mason's body. Having regard to the fact that there were three knife injuries the Crown submitted to you that he well knew he had stabbed Mr Mason. These submissions were strengthened by his statement to Chris Pera that he thought he had killed someone, obviously a reference to Mr Mason. I add, although this is a matter entirely for you and you should disregard this statement if it does not reflect your own independent opinion, that the fact that the accused referred only to himself in these statement rather than saying 'we' is of some significance. If you are satisfied beyond reasonable doubt that the accused inflicted the lethal injury to Mr Mason, you will need to consider whether he did so with the intention to cause death or grievous bodily harm. Grievous bodily harm simply means serious bodily injury. The prosecution points to the nature of the injuries inflicted to demonstrate what it alleges was the intention with which they were inflicted. The significant considerations seem to be the fact that there were three particular injuries, although two of them, the most dangerous, had the same entry wound, whilst the injury to the hip was stopped by the bone. The prosecution submits that the wielding of a knife in this way and at these places on Mr Mason's body is silently eloquent of the intention with which they were done. Anyone would realise, the prosecution says, that wounds to the torso with a knife would inevitably cause very serious injury. One blow might be accidental but three cannot be reasonably explained in that way. Mr Parker for the accused, as I recall his summing up addressed to you, did not deal with any of these details, as he confined his address to you almost to what he submitted was the unreliability of the principal prosecution witnesses. However, if you are satisfied that, indeed, the accused did inflict the knife wounds that were discovered on Mr Mason's body, the question of the intention with which they were inflicted necessarily arises. If it is reasonably possible that they were simply inflicted in a panic without any thought of what was happening or at least any intention to cause serious injury then the prosecution would not have satisfied you beyond reasonable doubt that the accused intended to cause death or serious injury and you would not convict him of murder, subject to the question of felony murder which I shall come to in due course. You should consider all the circumstances as you find them to be in assessing this question of intention. One of those matters it seems to me, although I hasten to add it is a matter for you, was Glover's evidence of seeing the accused, he said, strike Mr Mason on the upper arms. You will no doubt recall Dr Duflou's evidence to the following effect: 'Yes I described a number of grazes or abrasions on the surface of the body, first there were three grazes on the top and back of the right shoulder' and he gave their measurements. 'They were very small grazes really. Secondly there was an area of grazing on the inner surface of the left elbow, actually this area here' and he showed you, 'which measured fifty-five by fifteen millimetres', so a fair size about two inches by three quarters of an inch in real measurement. 'Next I noted an eight by two millimetre graze on the front of the left forearm in about this region here, sixty millimetres before the wrist, six centimetres in front of the wrist.' Question: 'Those three that you've described can you comment on whether they appeared fresh or recent?' Answer: 'Yes these injuries appear to have been sustained at about the time of death, there was no crusting of the surface, there was no bleeding'. Question: 'The two on the arm that you describe, can you comment on the degree of force that might have been required to cause such an injury?' Answer: 'I don't think I really can but relatively minor force, on falling for instance could cause an injury like that'. So he has supposed a fall. One wonders how often Mr Mason actually fell. I mention that to you simply as perhaps, it is a matter for you, giving some support to Glover's evidence of seeing Mr Mason struck on the upper arms. Of course, it does not give support for his identifying the accused as having done that. These are part of the matters that I say, looking at the whole of the circumstances, you use to assess particular parts of the evidence. According to Glover, after the accused had struck Mr Mason with a pole, he was on his knees and Pera then ran in and struck Mr Mason on the head with his fist. However, you will recall Dr Duflou's evidence that this would have been extremely unlikely to have caused the fracture on the skull. If you were satisfied that the accused also had the pole and caused the fracture to Mr Mason's skull, that would be material that you could use to consider the intention that he had when the stab wounds were inflicted, if you accepted that the accused had inflicted them. Ladies and gentlemen, it is a matter for you but you might well think that a hard blow to the head sufficient to fracture the skull as well as the other injuries to his head might well have significantly affected Mr Mason's ability to use any force at all to resist his assailant or assailants. If Mr Mason was stabbed after being struck on the head, that might also lead you to conclusions about the nature of the struggle, whoever struck him on the head, if any, that then ensued and the intention with which the wounds were inflicted, if he were partially slowed down as it were by the blows on the head. Whether inflicted by the accused or now and if the knife wounds were caused after he was struck to the head, you would then ask yourself why and how did those wounds get inflicted and with what intention. The fact that they had occurred after he had been so seriously struck, you might think, might tell you something about the intention with which those wounds were inflicted. That would not tell you who inflicted them but it would tell you something about why they were inflicted. You would have to consider the whole of the case, of course, including the wounds themselves in determining whether or not you are satisfied beyond reasonable doubt the intention with which they were inflicted was that death should result or serious bodily injury result. That is what I mean when I say look at the whole of the circumstances and see how each fact that you find can fit in with other facts that justify, fairly, properly and rationally, conclusions about what happened, although the principal witnesses, you might think, are not reliable." (S/U 26-32) 49 His Honour then turned to the direction which is the basis of the first ground of appeal - a direction on joint criminal purpose murder, which was in the following terms: "Even if you did not accept, however, that the accused had himself inflicted the lethal wound, you will need to consider whether it was done by one of the others in circumstances where the accused, although he had not himself inflicted the wounds, was criminally responsible for Mr Mason's death. Of course, you would still need to be satisfied beyond reasonable doubt that whoever stabbed Mr Mason did so with the intention of causing death or grievous bodily harm and the same objective circumstances to which I have already referred would apply to your determination of whether one or other of those intentions was present. If you concluded that one of those intentions was present, whoever it was that inflicted the lethal blow, then you would need to consider whether the accused was guilty as being complicit in that crime. Now this is going to be a little complicated but when you think about it, it is really only common sense. When two people agree to commit a crime and each does a different thing, the mere fact that one is outside watching to make sure that those inside are not interrupted or that one has the duty of threatening the bank teller while the other goes to the safe and empties it, does not matter at all. It is very obvious that all of them are guilty of the same crime. So where two or more persons carry out a joint criminal enterprise each is responsible for the acts of the other or others in the course of carrying out that enterprise. Here it is not seriously contested, although it must be a matter for you, that the accused together with Pera, Glover and Latuhoi were involved in an armed robbery on Mr Mason. If one of them murdered Mr Mason in the course of that robbery in the sense that he caused his death with the intention to cause death or grievous bodily harm then those of the others, whoever they might be, who contemplated the possibility that Mr Mason might be killed by one of the others with a murderous intent, that is with an intention to cause death or grievous bodily harm, and, having realised that fact, continued to participate in the crime, they are equally guilty of murder. What is meant here by contemplation? To focus it on the accused, if the accused contemplated the possibility that Mr Mason might be murdered in the sense that he might be killed by someone who intended to do it or cause him serious injury, and decided to continue to participate in the crime, he is guilty of murder. By contemplation I mean no more than that the possibility was thought of as a more than slender or trivial risk. In other words, as more than something that you would simply set aside as inconsequential. In other words, if the accused thought that there was a substantial risk that one of the others might, not necessarily would, use their knives or the pole to kill Mr Mason with the intention of doing so or causing grievous bodily harm, then he is just as guilty of murder as the killer, though he did not actually agree that Mr Mason should be killed or seriously injured, even if he hoped that it would not happen and indeed even if he intended that it would not happen. If he saw it as a substantial risk and decided to participate in the crime, nevertheless, then he is guilty not only of the armed robbery but of the murder which he contemplated might occur." (S/U 32-34) 50 His Honour then announced that he was taking the luncheon adjournment. In the absence of the jury, Mr Parker expressed concern about the latter direction indicating that he would like the chance to give the matter further consideration over the luncheon adjournment. Specifically the objection was that this was a basis of liability which the Crown had not advanced. 51 His Honour said in the course of the discussion: "But what is necessary to establish joint enterprise liability for conventional murder is more than the jury would have to be satisfied about if they were only considering felony murder in that context. So that it must inevitably follow that if they found guilt on the basis of joint enterprise for conventional murder they would have inevitably found your client guilty of felony murder on that basis because the test with felony murder is less stringent than that for murder and the difficulty with isolating the matters as you propose is that the jury will inevitably ask themselves, well if it applies to felony murder why doesn't it apply to murder and the risk will be that they will apply what I say in respect of felony murder despite my directions to murder simpliciter and it seems to me that it is important that they understand the nature of criminal liability in either case and I don't see how you are prejudiced by it because as I have said, if they came to the conclusion that your client was liable in respect of conventional murder though he did not strike the blow, that would inevitably satisfy the test of complicity for felony murder where the fatal blow was struck by another and I therefore do not see any prejudice to your client." (T 36-37) 52 His Honour continued: "... - I must say that I thought it was necessarily implicit in the Crown's concession that it was possible that they might not come to the view that the accused had himself struck the blow and that then she dealt with that in a rolled up way and then moved onto felony murder but the crucial question is whether you're prejudiced and as it seems to me a clear exposition of the possible sources of criminal liability depending on the particular factual circumstances that they ultimately find is important. Although one doesn't want to be encyclopaedic about criminal law but it is important that one be consistent and coherent ... ." (T 37) 53 After the luncheon adjournment the discussion continued with the following submission by Mr Parker: "...My submission is that what your Honour said to them on the topic amounted to leaving with them in the framework of what we're calling the conventional presentation of the charge of murder it amounted to giving the jury an alternative basis of liability for murder that that is new in the sense that it hasn't been advanced by the Crown nor dealt with by the defence and my application in relation to that part of your Honour's summing up is that your Honour should withdraw it." (T 37) 54 His Honour responded: "Well I had another look at the Crown address to the jury and I am satisfied that it was raised implicitly at least that is certainly how I understood the address although it may be that by an inappropriate phrase at a later stage the Crown seemed to rely only on conventional murder in the event that the jury were satisfied that your client was the one who actually struck the lethal blow." (T 37) 55 The discussion then continued: "PARKER: That's the basis on which I have apprehended throughout that the Crown was advancing conventional murder. HIS HONOUR: But are you able to put to any prejudice that you suffer Mr Parker? PARKER: well there are cases, I'm thinking of cases like his Honour Justice Hunt in I think it was Tangy (sic) where in the CCA his Honour referred to the idea that it is essential that what he called the conceptual basis I think of the Crown's presentation that a particular charge be identified from the outset but certainly no later than the close of the prosecutions case and in this case so that my submission is that the accused is prejudiced by that not having been done or at least done clearly and a result of that was that I sought to deal with the whole of the conventional presentation of the charge of murder at the end of my address in a quite summary way by saying my memory is that I said something to them like 'this might seem like a pretty strange thing to say about a murder charge but that presentation of it won't worry you, there's no way you'd conclude that the accused stabbed the deceased with the necessary intent' and I made brief reference to what he said afterwards and to the nature of the wound. HIS HONOUR: What did you say about felony murder? PARKER: I said in substance and I am not saying that I can relay my exact words but I said in substance that the important thing in relation to any wound that Mr Mason suffered was that the Crown had to convince them beyond reasonable doubt that the accused was responsible for an armed robbery with wounding and that in relation to that idea, wounding, your Honour would give them fundamental instructions about what the Crown has to prove by way of any such wounding being the product of a voluntary act. I may have said a little more than that but that was the substance of it. HIS HONOUR: Well you really didn't actually deal with it at all in relation to - you repeated that 'if (sic) is such an unsatisfactory body of evidence that we're never going to be able to know exactly what happened between the accused and Mr Mason. PARKER: Yes. HIS HONOUR: You completely disregarded the possibility of joint responsibility and I must say that I got the impression although I don't intend to say this to the jury that really your address seemed to concede that your client was involved in the struggle with Mr Mason. PARKER: Well if your Honour had said that to them that would be fair I was urging that whatever --- HIS HONOUR: And because of that concession as it were you didn't need to go ahead and deal with the alternative possibility of joint enterprise. I mean that is the thrust that I got because you didn't deal with joint enterprise at all. PARKER: I don't say that in the felony murder context I wasn't on notice of a possible liability in the accused for murder for acts of the co-offenders but I do say with respect that in the conventional presentation framework I wasn't on notice of a joint enterprise presentation because in my submission the Crown had not made one. HIS HONOUR: It is implicit in the very circumstances Mr Parker in which your case is that to the jury essentially is you can't tell what happened in the house. You didn't go so far as to say or to submit to them that they ought not to accept that there was a struggle as a result of which or during which your client wounded the victim, you didn't go quite that far but you implied to them that that was one view that they might take of the facts. PARKER: That's true, certainly I was - to the extent that I was urging it, I was urging the conclusion there was a struggle. HIS HONOUR: And you conceded that this was a case of manslaughter, well that could only be on one of two basis. PARKER: I didn't actually concede it, I said it was a matter for them and I was -- HIS HONOUR: Well that's true but you didn't seek to argue that it was not manslaughter. PARKER: No that's true, that's true. HIS HONOUR: In the circumstances I can't see any prejudice and I think that it is important that the jury understand the proper basis for criminal liability." (T 37-39) 56 His Honour then directed the jury in relation to felony murder as follows: "In relation to the alternative of what is called felony murder, I suppose the biggest distinction, the most important distinction between it and ordinary murder is that the prosecution does not have to establish any specific intention to injure at all. You will remember that I told you for ordinary murder the Crown must establish an intent to cause death or grievous bodily harm in the person who actually inflicted the fatal blow. In relation to felony murder the biggest difference between it and conventional murder is the prosecution does not have to establish any specific intention to injure. So it is very different from what we might call conventional or ordinary murder. Let me tell you about the things that the Crown has to establish in order to prove the guilt of the accused on this basis. First of all, dealing with the situation where you would not be or might not be satisfied beyond a reasonable doubt that the accused himself caused the fatal wound, but you are satisfied as, it seems to me, is inevitable, that one of them did it, the prosecution must establish beyond reasonable doubt, firstly, that there was a common purpose between the accused and others to rob Mr Mason whilst being armed with offensive weapons capable of being used to wound or cause grievous bodily harm. Now as the case has unfolded there actually does not seem to be very much dispute that there was such a common purpose. The offensive weapons are plainly a knife and an iron bar and it is perfectly obvious those things are quite capable of wounding and causing serious injuries. Secondly, that the accused contemplated as a distinct possibility that is, not a trivial or inconsequential risk, but a real risk that a wounding might occur whether or not he wanted it to happen and whether or not he intended it to happen and even if he intended that it would not happen. He must contemplate as a distinct or real possibility that a wounding might occur. Thirdly, during the course of the armed robbery something was done by one of his assailants which caused a wound to Mr Mason. Now again, I think you will not have very much difficulty with that element. I will define a wound, but I think that it is perfectly clear that something was done by one of the assailants which caused a wound to Mr Mason. When I talk about causation here it does not have to be direct. Assume that one of the assailants pushed Mr Mason and he fell against a piece of furniture and that cut through his skin. That would still be something done by one of the assailants which caused the wound. It does not have to be the thrust with the knife. We are talking causation here as a common sense notion of causation. Indeed, I will give you an example shortly of what you might think is a significant notion of causation as applied to the facts here. So the third aspect of it is that during the course of the armed robbery something was done by one his assailants which caused a wound to Mr Mason. Fourthly, that during or in the course of or immediately after the armed robbery Mr Mason was killed. Again that is obviously not easily capable of dispute. Fifthly, that the accused thought of or contemplated as a distinct possibility that Mr Mason might be wounded, whether or not it was intentionally done and even if he intended or hoped that this would not happen. Let me read those elements again. There was a common purpose between the accused and others to rob Mr Mason whilst being armed with offensive weapons capable of being used to wound or cause grievous bodily harm. Secondly, that the accused contemplated as a distinct possibility that a wounding might occur whether or not he wanted this to happen. Thirdly, that during the course of the armed robbery something was done which was not accidental by one of his assailants which caused a wound to Mr Mason., Fourthly, that during or in the course of or immediately after the armed robbery Mr Mason was killed. Fifthly, that the accused thought of, contemplated as a distinct possibility, that Mr Mason might be wounded whether or not it was intentionally done even if he intended or hoped that this would not happen. ..... If you are satisfied that it was the accused who struck the fatal blow, then he will be guilty of felony murder if that blow was struck in the course of or immediately after an armed robbery in which he was participating in which Mr Mason was wounded and the possibility that he might be wounded occurred to the accused. You do not have to find in that event or in either of the events that the fatal blow was struck with any intention to cause serious injury or, indeed, that it was intentionally struck at all as such. For the purposes of this case a wound is any injury that penetrates through the skin. So the three knife wounds obviously fall within this definition. Each of them is a wound in law. Now in speaking of possibilities in this context, I do not mean a remote or slight possibility but a real risk, one that was seen as a danger. The prosecution submits that two or three knives and an iron pole being brandished in a small house in circumstances where violence is threatened is so obviously fraught with the risk that the victim might be wounded if he did not submit, the mere fact that the weapons were taken shows that the accused must have contemplated the possibility of injury." (S/U 41-45) 57 His Honour then turned to the question whether the appellant contemplated that somebody might be wounded. 58 In this regard his Honour said: Let me step back for a moment from that legal proposition which I will come to or factual proposition and look at it perhaps in more practical terms. If I hold a knife out to someone and say 'give me your money', that threat is meaningless unless the other person believes that I am going to use the knife on them and going to sue the knife on them means I have got to cut them. So whether the threat be explicit or implicit, that is, merely by the presentation of the knife in the context of a threatening situation, that the threat is to use the knife seems to be, the Crown says, inevitable in the circumstances merely by its presentation, merely by it being there. You have heard the witnesses say, of course you may not accept it, it is a matter for you, but you have heard the witnesses say the reason they had the knives was to frighten him into submission. Well, it would not frighten him into submission unless he thought the knives were going to be used on him. If he thought the knives were going to be used on him, the Crown says it is a bit difficult to believe that on presentation of the knife it did not occur to the accused that the knife might be used on him. That is the way the Crown presents its case in that respect, though I am using my words and not the Crown Prosecutor's words to make the point clear as I understand it to be. (S/U 45-46) 59 His Honour continued: "I simply put that to you as one of the ways in which, as I understand the Crown case, you may conclude beyond reasonable doubt that it was in contemplation by anybody who took a knife into that house that someone might be wounded and that that was more than a mere theoretical possibility, but a real and substantial risk. It is obvious, the prosecution submitted, that Mr Mason might attempt to some degree or other, they hoped he did not, but he might attempt to resist this invasion into his house by armed intruders from whom you may well think he would have feared the worst. What would you think when, at one o'clock in the morning, your door is burst open and three young men, you do not know how old they are, with balaclavas, come in and they have got knives and an iron bar. They are not there for afternoon tea. So, the Crown says that it was obvious and would have been obvious that Mr Mason might attempt some resistance and it was intended to threaten him so that he did not. You must be satisfied beyond reasonable doubt, however, that the accused, in all the circumstances, in fact thought of the real possibility that Mr Mason might be wounded. Merely that any reasonable person would or might have done so would not be sufficient in itself, although it might be persuasive evidence that the accused actually thought of the risk. The question is not, would a reasonable person do this, although that could be a stepping stone. The real and fundamental question is, are you satisfied beyond reasonable doubt that, in fact, the accused thought that it was a real possibility that Mr Mason might be wounded, even though he had no intention whatever of doing it. You are entitled to look at the whole of the circumstances in considering this question, even though there is no admission from the accused. Intention and knowledge can be inferred, of course, from objectively proved facts. You might recall in this respect the evidence of Glover, that he swapped the knife for the pole because he foresaw the risk of a struggle and you might think, the risk that the knife would as it were, up the ante to an unacceptable level from his point of view. The contemplation of the risk of a wounding need not have occurred before the assailants entered the house. It is sufficient if it occurred to the accused at any time before it actually happened." (S/U 46-48) 60 His Honour concluded his summing-up with directions with regard to the elements necessary to bring in a verdict of manslaughter on the basis of death by an unlawful and dangerous act. 61 The jury retired at 3.08 pm and returned with a verdict of guilty at 4.25 pm. 62 As the evidence stands before this Court, I am of the view that the first ground of appeal should be approached upon the basis that his Honour raised the joint criminal enterprise alternative to murder in his summing-up for the first occasion in the trial. 63 The principles of law which apply in such a situation are quite well established. They can be found in R v Solomon [1980] 1 NSWLR 321. 64 At the trial of Solomon for murder, the Crown Prosecutor, in opening the case to the jury, deliberately confined his case to exclude murder based on "reckless indifference to human life"; and the case, on both sides, including counsel's final addresses, was conducted on that basis. The judge, however, took the view that, since the jury had been sworn to try the accused on a charge of murder, it was necessary that they be instructed on all legal elements of the crime so charged capable of application to the evidence. The judge took the view that on the evidence it was reasonably open to the jury to find that the accused was guilty of murder on the basis of reckless indifference to human life. 65 This Court (Street CJ, Moffitt P; Begg J dissenting) held that the trial had miscarried because counsel for the accused was deprived of the opportunity to argue against conviction for murder based on reckless indifference to human life, or to urge the jury to reject a finding of murder on this basis. Therefore, the trial was rendered unfair to the accused, and so had miscarried. Begg J dissented on the basis that the judge was correct in summing-up as he did and no miscarriage resulted, because, if the Crown had relied upon this alternative basis for murder, counsel for the accused would not have conducted the defence in any different way. 66 Street CJ said (at pp 327-328): (12) The Court has been referred to a number of statements regarding the obligation on a trial judge to put to the jury defences which appear to the judge to be reasonably open, notwithstanding that they have not been canvassed by counsel for the defence. This is no more and no less than a recognition of the obligation of the trial judge to ensure that the accused person has a fair trial according to law. There is, however, no corresponding obligation on the judge to give directions upon matters tending towards conviction, and the appellant contends that if the judge takes this upon himself then of necessity he falls into error. (13) I do not assent to so limited a scope of the judge's function when dealing with the strength, nature and significance of the evidence adduced by the Crown in support of the charge against the accused. Ordinarily, it is the province of the Crown to formulate and present the case for the prosecution which will, in due course, be summed up by the judge to the jury. There may, however, be other matters of fact or law which the trial judge, in the discharge of his duty to ensure a fair trial according to law , considers it necessary to put to the jury, even though not propounded or developed by the Crown. The fairness or unfairness of travelling beyond the ground covered by the Crown will, of course, be evaluated by the trial judge and will be to the forefront in his deciding how far, if at all, to put new considerations to the jury. It seems to me that, where a judge does cover fresh ground in terms that are correct in law and properly based on evidence in the case, at the highest his decision so to do will only be challengeable if it can be seen that the accused person was thereby placed at a tactical disadvantage. In such a situation, appellate intervention would be appropriate, not by reason of the judge having canvassed fresh ground simpliciter, but by reason of unfairness attending his so doing. The relevant unfairness will ordinarily be looked for in procedural considerations. The judge, drawing upon his own forensic experience, will be readily appreciative of the tactical considerations which will have governed counsel in the conduct of the case for the accused. Objections to evidence, lines of cross-examination and decisions upon the material to be advanced on behalf of the accused, not to mention the general trend of the final address to the jury made on behalf of the accused, will all, of course, have been governed by the nature of the Crown case as opened by the prosecutor and developed through evidence tendered on behalf of the Crown at the trial. It is readily understandable that, within these procedural and tactical fields, there could arise an element of real prejudice, if the judge, in his summing-up, raises new approaches available to, but not expressly relied upon, by the Crown. But in every case in which a question arises regarding the development of new approaches, the question concerning the judge at first instance, and on appeal the question concerning this Court, will be to determine whether in so doing there will be worked an unfairness to the accused." 67 It is of interest to note that in his dissenting judgment Begg J emphasised that the only person in a criminal trial who has the responsibility of accurately instructing the jury on the relevant law is the trial judge. His Honour was unable to accept the concept that a trial may be held to be unfair because the trial judge correctly defines the whole of the relevant law raised by the indictment and supported by evidence led in the trial, merely because the Crown Prosecutor has not mentioned it. The majority judgments of Street CJ and Moffitt P make it clear, however, that this proposition is subject to the overriding qualification that the accused must not be put at a tactical disadvantage by reason of such an approach by the judge, thereby rendering the trial unfair to the accused. 68 The question in the instant case is, therefore, whether the election by Adams J to direct the jury on the joint criminal enterprise basis of liability put the appellant at a tactical disadvantage such as to render the trial unfair to him. 69 The discussion which took place between his Honour and Mr Parker which I have set out above, after objection was taken to his Honour's direction, is very instructive. It is perfectly clear that his Honour gave careful consideration to what he perceived to be the need to direct the jury on the three alternative bases of liability relevant to the instant case. This consideration had taken place in the context of his understanding of the approach which Mr Parker had taken to the evidence in his closing address to the jury. 70 The following important matters come out of the discussion. Mr Parker clearly left it open to the jury to accept that there was a struggle between the appellant and Mr Mason, as a result of which, or during which, the appellant stabbed Mr Mason. 71 Further, Mr Parker's submissions in relation to felony murder were directed solely to the argument that the Crown had not proved that the relevant wounding was a willed act. Perhaps, more significantly, Mr Parker was clearly unable, at any stage during argument in relation to his objection, to suggest how his conduct of the defence case would have been any different if the Crown had made it clear in the initial stages of the trial that it was relying upon joint criminal enterprise liability. Indeed, Mr Boulten for the appellant was likewise unable to put before this Court any matter to support a contention that the appellant had been placed at an unfair tactical disadvantage by the approach which his Honour took. 72 His Honour appreciated that it was his responsibility "appropriately" to direct the jury with regard to the relevant principles of law. He formed the considered view that it was of importance for the jury to understand the logical legal regime relevant to the evidence in the trial. 73 His Honour was also influenced by the fact, correctly, in my respectful view, that his approach could not possibly prejudice the appellant because if the jury were satisfied beyond reasonable doubt of all the elements necessary to convict the appellant on the basis of joint criminal enterprise, they would necessarily have been satisfied of all the elements going to the less demanding evidentiary matters required for felony murder. 74 For these reasons I would reject the first ground of appeal. 75 The second ground of appeal is in the following terms: "The trial miscarried because the learned trial judge's directions in relation to 'felony murder' and the Crown's need to prove a voluntary or deliberate act causing death were incorrect." 76 The passages in the summing-up in which his Honour dealt with the question whether, for the purposes of felony murder, the fatal wounding was caused by a voluntary act, and the question of accident, are set out hereunder: "The prosecution submitted to you that the distinct possibility that a struggle might break out in which a knife or the pole might cause a wound to Mr Mason must have and did cross the accused's mind, even though he may have hoped to avoid it by a show of force. Whether the accused actually inflicted the lethal wound or it was done by someone else, it must be caused by a voluntary and not accidental act, though it does not need to be intentional. Thus, even if you considered that Mr Mason may have been wounded when he rushed one of the young men holding a knife and the wounds were caused unintentionally in the struggle, that would not mean that they were caused accidentally in the relevant sense. In the circumstances here, the presenting of the knife, the participation in the struggle and the failure to let the knife go all would be voluntary acts for the purpose of establishing criminal liability. The mere fact that the fatal wound might be inadvertent would not provide any excuse. You might think, ladies and gentleman, that that is just common sense. What, realistically, was the cause of the wound. Merely because it happens in the course of a struggle and it was not intended that the wound occur, does not mean that it was accidental. When you present a knife and someone rushes at you, in a very real sense, wounds caused in that struggle may not be regarded as accidental at all. They follow by reasonable cause and effect from the presentation of the knife in that circumstance." (S/U 48) 77 It was submitted by counsel for the appellant that his Honour's directions demonstrated confusion and error, because they create the impression that "just because the wounding in circumstances described by the trial judge are not accidental it necessarily meant that the act causing death was a willed act". This, it was submitted, is incorrect. It was submitted that his Honour should have made a distinction between the act which caused the wound on the one hand and the series of actions or the event as a whole which could be described as the causae sine qua non in the process leading to the wound. In this sense, it was argued, his Honour made it very difficult for the jury to identify with precision what exactly was the act of the appellant which caused the death to be murder. 78 In the instant case no clear distinction seems to have been drawn during the course of the trial between the act which caused the wounding for the purposes of the foundational offence and the act which caused the death for the purposes of establishing murder under the felony murder rule. This does not seem to be uncommon in cases where a knife is used during the course of an armed robbery with wounding. In an appropriate case such as the present it can cause no embarrassment to the accused: see, for example, R v Spathis; R v Patsalis [2001] NSWCCA 476 at [221]. 79 It is well established that although the relevant wounding for the foundational offence need not have been intentional, it must have been a consequence of a voluntary act: see Ryan v The Queen (1967) 121 CLR 205 at 223-224. 80 It is also well established that it is unnecessary for a trial judge to raise the issue of voluntariness with the jury if the evidence clearly suggests no lack of voluntariness: see Bratty v Attorney General for Northern Ireland [1963] AC 386 at 413; R v McLeod (CCA 28 May 1991, unreported); R v Sharah (1992-1993) 30 NSWLR 292, at 304. 81 In the instant case when one considers the evidence given by Dr Johann Duflou, forensic pathologist, who conducted the autopsy on the body of Mr Mason on 12 January 1999, no scope realistically exists for a conclusion that the relevant stabbing actions which caused his death, could have been the consequence of an involuntary movement. 82 On 25 June 2002 the High Court handed down judgments in Ugle v The Queen [2002] HCA 25 and Murray v The Queen [2002] HCA 26. Both of these cases which, of course, post dated the instant trial, have some relevance. 83 First, however, one should notice Falconer v The Queen (1990) 171 CLR 30. In that case the High Court was concerned with s 23 of the Western Australian Criminal Code which relevantly provides: "Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident." 84 In the joint reasons of three justices (Mason CJ, Brennan and McHugh JJ) it was said (at 38): "The first limb of s 23 requires the act to be willed; the second limb relates to events consequent upon the act: it excludes from criminal responsibility consequences of the act which are not only unintended but unlikely and unforeseen." 85 Their Honours also held that the "act" of which s 23 (as well as the common law) speaks is the "death-causing act ... not the death itself". 86 Thus, as Gummow and Hayne JJ point out in their joint judgment in Ugle, a clear distinction is drawn between the "act", with which the first or unwilled act limb of s 23 deals, and the "event" with which the second or accident limb deals: see at [26]. 87 The factual matrix in Ugle is important. There the deceased died from a knife wound to the chest. There was no dispute at trial that the appellant was holding a knife when the deceased sustained the wound which caused his death. On the evening of the death, the appellant's co-accused Aaron James Haworth, and a companion had gone to a block of flats in which the deceased lived. There was a disturbance and Haworth said at the trial that the deceased, armed with a cricket bat, had chased them from the block of flats. 88 A short time later, Haworth and the appellant went back to the vicinity of the flats. The appellant took with him a kitchen knife and Haworth had armed himself with a brick. They encountered the deceased who was, so they said, still armed with a cricket bat. 89 The appellant gave evidence in which he said that the deceased attacked and struck him with the cricket bat, causing him to lose balance. As the deceased went to hit him again he put his hand up to push the deceased off. Having done so, and seeing the deceased about to strike him again, the appellant said he ran away. 90 In cross-examination, the appellant reiterated that he had sought to fend off the deceased, and said that he did not realise at the time that he had stabbed him. He denied using the knife to stab the deceased. However, there was no dispute at the trial that the appellant was holding the knife when the fatal wound was sustained. 91 The principal argument at trial was based upon self-defence. However, as the appellant had said in cross-examination that he was not aware that he had stabbed the deceased a question arose within the meaning of s 23 whether the death was caused by an act occurring independently of the exercise of the appellant's will. The trial counsel for the appellant did not rely upon accident. 92 The conviction was quashed by the High Court. Gummow and Hayne JJ, in their joint judgment, said that the jury should have been instructed on the question which arose as to whether the appellant put the knife in the body of the deceased, or did the deceased impale himself on the knife which the appellant was holding. This was a question to be resolved solely by the jury. 93 At [31] their Honours said: "It was for the jury to assess the evidence given by the appellant and this Court is not able to say that a jury, properly instructed, would necessarily have decided beyond reasonable doubt that the act of inserting the knife in the body of the deceased was an act willed by the appellant." 94 Importantly, one notes that at [25] their Honours said: "The evidence led at the appellant's trial did not raise an issue about an event that occurred by accident. There was, however, an issue about whether there may have been an unwilled act ." 95 Their Honours pointed out that the question whether or not there was a willed act was logically anterior to the questions whether, by reason of self-defence, the killing in question was lawful and, if not, whether it was done with the intention to kill or do grievous bodily harm. It was the anterior question that should have been left to the jury and which was not left to them. Therein lay the error. 96 For present purposes, Murray is a very instructive case. Murray was concerned with s 23(1) of the Criminal Code of Queensland which is relevantly in the same terms as that of s 23 of the Western Australian Code which I have referred to in Ugle. 97 Again I refer to the joint judgment of Gummow and Hayne JJ. The appellant was charged with murder. The deceased died in the appellant's house as the result of shots discharged from a double barrelled shotgun while the appellant was holding the gun. Both barrels were discharged but the weapon was faulty, and prone to sympathetic discharge of the second barrel on the first barrel discharging. Further, the weapon could discharge if struck, but there was no evidence at trial which suggested that it was struck before it discharged the shots which killed the deceased. There was evidence at the appellant's trial from which it was open to the jury to conclude that the appellant had, for a long time, harboured feelings of considerable animosity towards the deceased. 98 The offence occurred at the appellant's house in his living room. The deceased was in the living room when the appellant entered holding the shotgun in his right hand. According to the appellant's account in his evidence in chief, as he approached the deceased, the latter: "... sort of turned around to the side and about side on as he was getting up, and his arm shot out and hit me - something hit me in the head. I had the gun; as he was starting to get up, I lifted it, I think, and it was about waist height I'd say when I got hit in the head and the gun went off." 99 When asked by his trial counsel why he had taken the gun with him, the appellant said that he wanted the deceased to get out of the house, that he thought the sight of the gun would frighten the deceased, and he would go. In cross-examination the appellant denied pulling the trigger deliberately. 100 Their Honours said that, reduced to its essentials, the first complaint of the appellant was that the trial judge should have told the jury that there was an issue about whether the prosecution had proved that this was not a case where there had been an act or omission that occurred independently of the exercise of the appellant's will. 101 Their Honours traced the relevant aspects of the history of the Queensland Code, which was first enacted in 1899. Their Honours concluded since R v Mullen (1938) 59 CLR 124 at 136, it has been clear that, in a prosecution for an offence against the Queensland Code, if the evidence raises a question about an unwilled act or an accidental event, it is for the prosecution to prove beyond reasonable doubt that s 23(1) does not apply. 102 Despite their length, but because of their importance, I set out hereunder [41] to [43] and [46] to [55] of the joint judgment (omitting citations): " Unwilled acts 41. As Windeyer J said in Ryan v The Queen , "[t]hat an act is only punishable as a crime when it is the voluntary act of the accused is a statement satisfying in its simplicity." But as his Honour rightly pointed out, the answer to the question "[w]hat is a voluntary act" is far from simple: "partly because of ambiguities in the word 'voluntary' and its supposed synonyms, partly because of imprecise, but inveterate, distinctions which have long dominated men's ideas concerning the working of the human mind". As in Ryan , so too in this case: '[t]he conduct which caused the death was ... a complex of acts all done by [the appellant] - loading the [firearm], cocking it, presenting it, pressing the trigger. But it was the final act, pressing the trigger of the loaded and levelled [firearm], which made the conduct lethal.'

Like Ryan , the appellant, being fully conscious, had put himself in a situation in which he had his finger on (or at least near) the trigger of a loaded firearm and which he levelled at another. In these circumstances, was there an issue for the jury about whether there was an unwilled act, or an event occurring by accident, that was an issue separate from the issue about the intention with which the appellant acted? The trial judge gave directions about accident and about intention, but gave no direction about unwilled acts.

42. As is noted in Ugle , a distinction is drawn between the 'act', with which the first or unwilled act limb of s 23(1) deals, and the 'event', with which the second or accident limb deals. For the reasons given in Ugle , the 'act' to which the first limb of s 23(1) refers in this case is the 'death-causing act ... not the death itself'.

43. By contrast, the 'event' was the death of the deceased. Could it be said that the death of the deceased was an event that occurred by accident - a question which requires consideration of whether the death was such an unlikely occurrence that a reasonable person could not reasonably have foreseen it. In this case there can have been no live issue about this. That is, there can have been no live issue at the trial that the fatal consequences of firing both barrels of a shotgun at the deceased could have been unlikely or unforeseen. Despite the trial judge being asked by the prosecution to direct the jury about accident, it was, therefore, unnecessary to do so in this case.

At trial, that first limb received next to no attention. Trial counsel for the prosecution submitted (in effect) that only the second limb of s 23(1) applied and trial counsel for the appellant did not demur, either when the matter was raised before the judge began her charge or later, by way of exception to what had been said. Nor did trial counsel for the appellant raise the subject in his address to the jury, focusing instead upon other aspects of the case. Ordinarily, that course of events at trial should be enough to demonstrate that an unwilled act was not an issue in the trial. If it had been, counsel would be expected to address the jury about it and both counsel would be bound to draw the trial judge's attention to relevant authorities touching the issue.

It is as well, however, to go on to explain why there was no issue about the operation of the first limb of s 23(1). In order to do so, it is necessary to identify the relevant 'act'.

Consideration of the several cases in this Court in which questions about unwilled acts have been examined reveal some of the difficulties that, if not implicit in the concept of unwilled acts, at least are likely to arise in dealing with that concept. Prominent among those difficulties is understanding what is the relevant 'act', or in this case, the relevant 'death-causing act'. Although it may now be regarded as clear that in this case, as in Falconer , the death-causing act was the discharging of the loaded shotgun, why is that the relevant 'act' and what exactly does it encompass?

In deciding what is the relevant act, it is important to avoid an overly refined analysis. The more narrowly defined is that 'act', the more likely it is that there will be thought to be some question about whether the accused willed that act. Or, to put the same point another way, the more precise the identification of a particular physical movement as the 'death-causing act', the more likely it is that it will be harder to discern a conscious decision by the actor to make that precise and particular physical movement. As H L A Hart pointed out more than 40 years ago, a theory which splits an ordinary action into three constituents - a desire for muscular contractions, followed by the contractions, followed by foreseen consequences - is a theory based on a division quite at variance with ordinary experience and the way in which someone's own actions appear to that person. As Hart said, 'The simple but important truth is that when we deliberate and think about actions, we do so not in terms of muscular movements but in the ordinary terminology of actions.'

The difficulty of over-refinement can be exemplified by comparison of this case with the facts in Ryan . In Ryan , Windeyer J characterised what had happened as Ryan pressing the trigger 'in immediate response to a sudden threat or apprehension of danger'. In this case, the appellant said that the weapon discharged immediately upon his being struck by something the deceased threw at him. There seems little, if any, relevant distinction between the two descriptions. Of both it may be said that: 'The latent time [between threat, or assault, and firing the weapon was in each case] no doubt barely appreciable, and what was done might not have been done had the actor had time to think.'

But to identify the 'act' as confined to that which was the immediate physical movement, a dorsiflexion of the finger, made in response to a perceived threat, or in this case the alleged blow, so confines the time for choice by the actor as to invite the conclusion that the actor did the particular act without thought, and therefore without willing it. That is altogether too narrow a view of what is the relevant 'act' which, in this case, would divorce the contraction of the finger from the admittedly deliberate pointing of a loaded and cocked weapon at the deceased and its discharge. So to confine the understanding of the relevant 'act' would be to adopt an approach that over-refines the application of the criminal law, introducing nice distinctions that are not based upon substantial differences. 51. That is why the 'act' to which s 23(1) refers is not restricted to the appellant's contracting his trigger finger. But what is encompassed by saying that it is the appellant's discharging the loaded gun that must be willed? It now seems clear from Falconer that the 'element of intention' which Windeyer J (in both Mamote-Kulang v The Queen and Timbu Kolian v The Queen ) said should be added to the notion of will may not always be helpful, but there is much force in the views expressed by Windeyer J in Ryan to the effect that the language of 'will' and 'intellect', 'unintentional' and 'inadvertent', is necessarily imprecise. As Barwick CJ said in Timbu Kolian , 'we lack a sufficiently flexible and at the same time precise vocabulary in this area of discourse'. In the end, it must be accepted that the distinctions with which the cases grapple may be founded upon overly simple understandings of the way in which human beings act which are understandings that are not easily applied to cases at the margin.

52. In a case like the present, we do not think it useful to examine the problem by reference to presumptions that an act done by a person who is apparently conscious is willed or done voluntarily. Approaching the problem in that way may reveal which party must raise the issue to have it considered - the so-called evidentiary burden of proof. It may even help the tribunal of fact to decide what inferences can, or should, be drawn from evidence that the accused was conscious at the time of the act in question. But it is not an approach which tells the tribunal of fact how or when that tribunal may reach a conclusion contrary to the starting point provided by the presumption.

53. Rather than adopting approaches such as these, it is necessary to focus upon the relevant 'act'. Once it is recognised that the act is the act of discharging the loaded shotgun it can be seen that the act comprises a number of movements by the appellant that can be identified as separate movements. He loaded the gun; he cocked it; he presented it; he fired it. Some of these steps may be steps to which the appellant would say that he had turned his mind; others may not have been accompanied by conscious thought. It is by no means unknown for someone to carry out a task (like, for example, loading a weapon) without thinking about it, if it is a task the person has undertaken repeatedly. In some circumstances, the trained marksman may respond to a threat by firing at the source of that threat as soon as the threat is perceived, and may do so without hesitating to think. But in neither example could it be said that the act (of loading or firing the weapon) was an unwilled act. Similarly, once it is recognised that the relevant act in this case is the act of discharging the loaded shotgun, it can be seen that whether or not particular elements of that composite set of movements (load, cock, present, fire) were the subject of conscious consideration by the appellant, there is no basis for concluding that the set of movements, taken as a whole , was not willed. There was no suggestion of disease or natural mental infirmity; there was no suggestion of sleep walking, epilepsy, concussion, hypoglycaemia or dissociative state.

54. In Ugle there was, on the evidence, a live question about whether the accused had struck the deceased with a knife or whether it was the deceased who had struck the knife which the appellant was holding. In this case, there was no issue of that kind. In this case, unlike Falconer , there was no question of automatism. In this case, unlike Woolmington , the appellant did not suggest that the weapon discharged when he was drawing it to show the victim how he, the appellant, intended to commit suicide. Rather, there was an issue about whether the appellant, presenting a loaded and cocked shotgun at the deceased, intended to kill him or do him grievous bodily harm. If, as the appellant said, he was struck by something thrown by the deceased and, as a result, he started, and in doing so pulled the trigger, his "act" did not occur independently of his will.

55. Thus, in this case, the central issue for the jury in considering the charge of murder was did the appellant intend to fire the weapon or merely present it to frighten the deceased? That is, the question was whether, in acting as he did, the appellant intended to kill or do grievous bodily harm, or had the prosecution not excluded the possibility that, as the appellant said, he had intended only to present the weapon in order to frighten the deceased. That was the subject matter of the issue which the trial judge identified for the jury. If persuaded to the requisite standard of proof that the appellant intended to kill or do grievous bodily harm to the deceased, the jury would have been correct in returning a verdict of guilty of murder. Was the jury properly instructed about the burden of proof?" 103 Applying these principles, so helpfully enunciated, to the evidence in the instant case, they lead, in my view, to the conclusion that the evidence did not raise an issue either as to voluntariness or accident. 104 If there had been an issue about these two matters, the obligation rested upon the prosecution to satisfy the jury beyond reasonable doubt that firstly the act causing death was a willed act, and, if so, the death was not caused by accident. These would have been jury questions. 105 What occurred in the instant case, however, is that his Honour directed the jury that, for the reasons which he explained, no issue arose as to either of those matters. In my respectful opinion his Honour was perfectly entitled to do so. This case is clearly distinguishable from Ugle where the clear possibility of lack of voluntariness and (according to Kirby J) accident was raised in the evidence. I have already indicated that Gummow and Hayne JJ did not consider that any issue arose as to accident. The reasons which his Honour gave for effectively removing from the jury any consideration of voluntariness or accident were, in my respectful view, perfectly adequate. 106 I would reject the second ground of appeal. 107 The third ground of appeal is that the verdict of the jury should be set aside on the ground that it is unreasonable and cannot be supported, having regard to the evidence. Sufficient has already been said in this judgment to demonstrate that this ground lacks substance and, in my view, should be rejected. 108 I would propose that the appeal against conviction should be dismissed. 109 I turn then to the application for leave to appeal against sentence. 110 Two specific grounds were raised in this regard. The first ground was that his Honour erred when he found that the appellant inflicted the fatal wounds with an intention to cause grievous bodily harm. For reasons which I have already expressed I consider that it was perfectly open to his Honour to be satisfied beyond reasonable doubt that it was the appellant who inflicted the fatal wounds with the requisite intent. 111 His Honour was in a particularly good position to assess the evidence bearing in mind the extensive cross-examination of the three co-offenders, which in total amounted to some 200 pages of transcript. In addition there were voir dires. 112 The second specific ground of appeal was that his Honour erred by failing to mitigate the sentence because of the appellant's Aboriginality. 113 It was pointed out that the appellant's father is Aboriginal and his mother is Caucasian but the appellant identified as Aborigine, according to the report of Dr Lennings (clinical psychologist) dated 30 January 2001. His Honour recognised this, but reached the view that no adjustment to the sentence was required, principally because the appellant's mother gave evidence that she did not regard him as being an Aboriginal. His Honour gave careful consideration to this important and sensitive aspect of the sentencing process and ultimately concluded that no adjustment should be made in that regard. In my view, this was a conclusion which was, in the circumstances, open to his Honour. 114 His Honour was fully seized of the other numerous subjective circumstances that were raised for consideration in the sentencing process. The appellant's history was placed before his Honour in detail, as indeed was the appellant's prior criminal record. Despite the appellant's youth there was a protracted history of appearances before various courts for a variety of offences, a number of them being of a very serious nature. 115 It was also contended that his Honour gave insufficient regard to the appellant's youth and immaturity. Finally, that by reference to the JIRS statistics for offenders under the age of twenty-one, it was demonstrated that a twenty year head sentence is in the top 28% for this offence for this age group. Similarly, it was argued that a non-parole period of thirteen years was "quite severe". 116 His Honour gave very detailed reasons in a prepared judgment for the sentence which he imposed. His Honour, in particular, came to the conclusion, not without regret, that the appellant was in no real sense remorseful or contrite about what had happened and his role in it. 117 His conduct, since incarceration had, in certain respects, not demonstrated any determined motivation towards rehabilitation. However, his Honour referred to Dr Lennings' report which demonstrated that the appellant had a good average intelligence. Moreover, although the assessment showed that his primary personality profile was anti-social, he appeared to be in transition and there were signs of increasing maturity. In his Honour's view this gave some basis for hoping that rehabilitation is possible. 118 His Honour was, of course, alive to the extremely serious objective circumstances. Serious indeed they were. There can be no doubt that the appellant was the ringleader of the armed and masked posse which invaded Mr Mason's home in the early hours of the morning. It is a matter of grave concern that the group which he led were aged 15, 12 and 12. 119 In R v Simpson (2001) 126 A Crim R 525, Spigelman CJ, with whom four other members of this Court agreed, said (at 541): "Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: 'If it is of the opinion that error has occurred in the sentencing process'. That is not the statutory formulation. By s 6(3) this Court must form a positive opinion that 'some other sentence ... is warranted in law and should have been passed'. Unless such an opinion is formed, the essential precondition for the exercise of the power to 'quash the sentence and pass such other sentence in substitution thereof' is not satisfied." 120 In my opinion, even if his Honour had allowed some adjustment for the evidence as to the appellant's Aboriginality, this sentence both as to the head sentence and the non-parole period would have been within the sentencing discretion available to his Honour. Indeed, because of the appellant's youth, his Honour reduced the non-parole period to 65% of the head sentence. A non-parole period of thirteen years must be taken to be well within the sentencing discretion available to his Honour. 121 In view of the relative youth of the appellant at the time of the commission of the offence and the serious nature of the offence itself, I would grant leave to appeal against sentence, but I would dismiss the appeal. **********

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