• Listening Devices Act 1972 (SA) s6;
• Listening Devices Rules 1992 (SA) r4, r7;
• Criminal Law Consolidation Act 1935 (SA) s15A;
• Summary Procedure Act 1921 (SA) , referred to.
• Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108, applied.
• Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404;
• Varley v The Queen [1906] ArgusLawRp 84; (1976) 12 ALR 347; (1976) 51 ALJR 243;
• R v Cozzi [1999] SASC 174; (1999) 73 SASR 374;
• R v Collie [1991] SASC 2996; (1991) 56 SASR 302;
• Hunt v Wark (1985) 40 SASR 489;
• R v Tomkins [1985] 2 NZLR 253;
• Reid (1976) 62 Cr App R 109;
• R v Anderson [1966] 2 QB 110, discussed.
• Carter v Hayes (1994) 61 SASR 451, considered.

Counsel: MR P CUTHBERTSON - Solicitors: MANGAN EY & ASSOCIATES

Counsel: MS P KELLY WITH MR M ANDERS - Solicitors: DIRECTOR OF PUBLIC PROSECUTIONS (SA)

Judgment No. [2002] SASC 354

(Court of Criminal Appeal: Doyle CJ, Lander and Martin JJ)

[2002] SASC 354

Court of Criminal Appeal: Doyle CJ, Lander and Martin JJ

DOYLE CJ: Mr Zappia appeals against his conviction for the manslaughter of Mr Rasti and Ms Ellul. He was charged with the murder of each of them. The jury acquitted him on the charges of murder, but convicted him on the alternative charges of manslaughter.

Mr Zappia challenges the convictions on several grounds. Ground 1 challenges the refusal of the trial Judge to allow Mr Zappia's counsel to inspect documents produced in response to a subpoena addressed to the Commissioner of Police. The documents produced were the documents (or copies of them) used to support an application for the grant of warrants under the Listening Devices Act 1972 (SA). At the trial the prosecution relied upon transcripts of conversations recorded in reliance on a warrant or warrants granted under that Act. The Judge's decision meant that there was no basis on which the issue of the warrants could be challenged. Ground 2 complains of the failure of the Judge to direct the jury that Mr Zappia had a defence to the charge of murder under s 15A of the Criminal Law Consolidation Act 1935 (SA). The section deals with, in particular, a defendant who believes his conduct to be necessary and reasonable to protect property from unlawful appropriation. Ground 5 complains of the decision by the Judge to allow the Prosecutor to cross-examine Mr Zappia to show that he knew that his brother had a pistol hidden at their parents' home. It was common ground that that pistol was not used to kill the victims. Grounds 3 and 4 challenge the directions to the jury on which Mr Zappia's convictions must have been based.

The Information jointly charged Mr Zappia and Mr Kamleh with the murders. The Judge ordered separate trials.

This was a case in which the prosecution had no direct evidence as to the shooting of Mr Rasti and Ms Ellul. The case was a circumstantial one.

On the afternoon of Monday 3 April 2000 cleaners entered an apartment at North Adelaide. In the bedroom they found the bodies of Mr Rasti (aged 22) and Ms Ellul (aged 16). Mr Rasti had been shot twice, through the neck and the eye. Ms Ellul had been shot once through the head. The evidence suggested that they had both been shot while in the bedroom. The gun used to shoot them was never found.

Mr Rasti and Ms Ellul were described as boyfriend and girlfriend. They lived together. There was evidence that Ms Ellul worked as a prostitute under Mr Rasti's direction.

Mr Zappia and Mr Kamleh were friends. They knew Mr Rasti and Ms Ellul. Mr Kamleh had known them for some time, Mr Zappia for a relatively short time. On occasions Mr Kamleh drove Ms Ellul to appointments with clients.

The prosecution case was that Mr Kamleh and Mr Zappia went to the apartment late on Sunday 2 April, or in the early hours of Monday 3 April. They were armed with a gun. Mr Rasti and Ms Ellul were at the apartment. The prosecution contended that either Mr Kamleh or Mr Zappia shot the victims during the course of that visit. The prosecution argued that Mr Zappia and Mr Kamleh went there planning to kill Mr Rasti and Ms Ellul, or planning to cause serious bodily harm to them, or that while at the apartment they decided to kill them.

There was some evidence tending to prove that Mr Zappia and Mr Kamleh were at the apartment at the relevant time. The prosecution also proved a number of telephone conversations in the days following the shooting in which Mr Zappia spoke about the events. These were obtained relying on the warrants referred to above. The prosecution case was that the telephone conversations indicated that Mr Zappia was present when Mr Kamleh shot and killed the victims.

There was evidence to suggest that the relationship between Mr Kamleh and Mr Rasti was a volatile one. Mr Rasti often abused and belittled Mr Kamleh. On occasions there were arguments between the two of them. There was evidence of frequent phone calls between Mr Kamleh and Mr Rasti, but tapering off shortly before Mr Rasti's death. The prosecution suggested that this was significant. There was evidence of many phone calls between Mr Kamleh and Mr Zappia in the weeks before the deaths. There was evidence of a false alibi given by Mr Kamleh and Mr Zappia after the shootings, and evidence suggesting they had concocted that alibi together.

The prosecution case was opened to the jury on the basis that although the prosecution had no direct evidence about what had happened in the apartment, Mr Zappia and Mr Kamleh had gone there with a plan to kill or to cause grievous bodily harm to Mr Rasti and Ms Ellul, or had decided to kill or cause grievous bodily harm once they got there.

Mr Zappia gave evidence, and undoubtedly his evidence affected the way in which the case was put to the jury.

He said that Mr Rasti had taken a mobile phone from Mr Kamleh, and had refused to return it to Mr Kamleh. He described how, over a number of days before the shooting, Mr Kamleh got increasingly agitated and angry about this. Mr Kamleh was talking about recovering the mobile phone. Mr Kamleh told Mr Zappia that he was sick of being treated the way Mr Rasti treated him, and felt like giving him a beating. Mr Kamleh asked Mr Zappia if he knew where Mr Zappia could get a gun, but Mr Zappia told him that he did not. Mr Kamleh told Mr Zappia that he wanted to get a gun so he could threaten Mr Rasti and get the mobile phone back. Mr Zappia told Mr Kamleh that he did not need a gun. Mr Kamleh also asked Mr Zappia if he could get some bullets. He told Mr Zappia that he had got a gun from his cousin. On the Thursday night before the shooting the three men went out together. There was an argument about the mobile phone, but it was not returned to Mr Kamleh. On the Saturday night Mr Kamleh and Mr Zappia visited Mr Rasti. There was an argument about the mobile phone again. By now Mr Zappia knew that Mr Kamleh had obtained a gun. The gun was in the glove box of Mr Zappia's sister's car, which car Mr Zappia was driving at the time.

On the Sunday night Mr Kamleh and Mr Zappia were together. Mr Zappia was still driving his sister's car. The gun was in the glove box. Mr Zappia knew this. Mr Kamleh told Mr Zappia that he wanted to go to the apartment and threaten Mr Rasti with the gun. Mr Zappia said that was a stupid idea. Mr Zappia said that he would ask Mr Rasti to return the telephone. They went to the home of a friend. Mr Kamleh asked Mr Zappia for bullets. Mr Zappia asked the friend for bullets, but said he did not really want to get any, and did not get any.

They left the friend's home. Mr Kamleh had a balaclava. He said he wanted to put the balaclava on and go to the apartment and give Mr Rasti a beating. Mr Zappia again said he would ask Mr Rasti for the mobile phone, meaning instead of Mr Kamleh following his plan. They drove to the apartment and joined Mr Rasti and Ms Ellul. Apparently they then drove Ms Ellul to a client and then returned to the apartment. There was another argument about the mobile telephone. Mr Rasti made threats to Mr Kamleh's family. Mr Kamleh was agitated, but Mr Zappia did not expect anything to happen.

Mr Zappia and Mr Kamleh left to get some cigarettes. They drove back to the apartment. Mr Kamleh got the gun out of the glove box. Mr Zappia asked Mr Kamleh what he was doing, and Mr Kamleh said that he would ask for the mobile phone, and stand up to Mr Rasti. Mr Zappia did not think that Mr Kamleh had any bullets. He thought that the argument about the mobile telephone was rubbish.

They returned to the apartment, knowing that Mr Rasti and Ms Ellul were both there. Mr Zappia knew that Mr Kamleh had the gun concealed under his clothing. He saw Mr Kamleh go into the kitchen and thought that he hid the gun there. Mr Rasti received a phone call from a woman, and then Mr Zappia spoke to the woman by phone. Ms Ellul went to have a shower, and Mr Rasti went to lie down in the adjoining bedroom. Mr Zappia spoke to him in the bedroom for a short time.

Mr Zappia saw Mr Kamleh in the kitchen and knew that he might be getting the gun. Mr Kamleh went into the bedroom. Mr Zappia heard them arguing. He turned the television up to drown out the argument. The prosecution suggested that there was a more sinister motive, to drown the sound of a shot. Mr Zappia heard a shot. Mr Zappia went to the bedroom door and saw Mr Kamleh shoot Ms Ellul. He then saw him shoot Mr Rasti for a second time. He was shocked by what happened.

Mr Zappia's evidence was to the effect that he never expected anything like this to happen.

As I have said, the prosecution case rested on the fact that Mr Zappia was present when Mr Rasti and Ms Ellul were shot. The prosecution case was that Mr Zappia was party to an arrangement to kill them or to inflict grievous bodily harm. The prosecution relied on Mr Zappia's involvement in events leading up to the shooting, and on things said by him in the telephone conversations that were intercepted.

The fact that the jury acquitted Mr Zappia on both counts of murder shows that they were not satisfied beyond reasonable doubt that Mr Zappia was party to an arrangement to kill or to cause grievous bodily harm, or party to an arrangement under which he contemplated as a possibility the killing of Mr Rasti or Ms Ellul. The acquittal also means that the jury were not satisfied beyond reasonable doubt that, absent any such common purpose or joint enterprise, Mr Zappia aided or abetted Mr Kamleh in the killing of Mr Rasti or Ms Ellul.

Nevertheless, the jury convicted Mr Zappia on the alternative count of manslaughter.

The Judge directed the jury in some detail as to the basis upon which Mr Zappia might be convicted of murder. He dealt first and briefly with murder on the basis of the jury being satisfied beyond reasonable doubt that Mr Zappia fired the fatal shots.

However, the main focus of the summing up was on the liability of Mr Zappia in the event that the jury were satisfied that Mr Kamleh fired the fatal shots.

On that basis the Judge directed the jury in relation to murder on the basis of an arrangement or understanding between Mr Zappia and Mr Kamleh that Mr Rasti and Ms Ellul would be killed or would be caused grievous bodily harm, or alternatively on the basis that the common purpose or joint enterprise was restricted to killing Mr Rasti or causing grievous bodily harm to him, the killing of Ms Ellul being contemplated as a possibility in the carrying out of that common purpose or joint enterprise. He also directed them that Mr Zappia might be guilty of murder if there was a common purpose or joint enterprise to threaten Mr Rasti with a loaded gun but Mr Zappia contemplated the killing of Mr Rasti as a possibility in the carrying out of the common purpose or joint enterprise to threaten with a loaded gun, and likewise if he contemplated the killing of Ms Ellul as a possibility in the carrying out of that common purpose or joint enterprise. Finally, the Judge directed them as to murder on the basis that there was no prior arrangement or understanding, but that Mr Zappia aided and abetted Mr Kamleh by helping him or encouraging him to commit the crimes when they were both present at the apartment.

In the course of giving these directions, based heavily on the concept of common purpose or joint enterprise, the Judge reminded the jury that there were limits to that concept. He said:

"If a person who is a party to a joint criminal enterprise, on the spur of the moment, commits a criminal act which is quite unexpected and quite outside the contemplation of the accused who had entered into the arrangement with that person to engage in such joint criminal enterprise, then, generally speaking, the parties could not be said to be acting together in pursuance of a joint criminal enterprise as to the criminal act actually carried out."

That direction was part of his explanation of the concept of common purpose or joint enterprise. He did not repeat it when applying the law to the facts of the case.

Having dealt with the crime of murder, the Judge turned to the crime of manslaughter. The Judge dealt first with manslaughter on the basis of death resulting from an unlawful and dangerous act. It is convenient to set out the whole of the direction on this point. I emphasise that it was given on the basis of the jury being satisfied beyond reasonable doubt that Mr Zappia knew Mr Kamleh had and intended to use a loaded gun. The Judge said:

"It must first be established that there was a common criminal purpose or joint criminal enterprise between the accused and Mr Kamleh. If you find that the accused was party to an arrangement or understanding in the sense in which I have explained it to you, to present a loaded gun and threaten Mr Rasti, and if you find that Mr Kamleh's purpose was similar or even went further and involved the killing or inflicting of grievous bodily harm on Mr Rasti, then this element is made out.

The second element is made out if the presentation of a loaded gun and threatening a person with a loaded gun is an unlawful and dangerous act. There is no suggestion of a lawful excuse for the presentation of a loaded gun and you may accept that such an act is unlawful. An act is dangerous for this purpose if a reasonable person in the accused's position would have realised that presenting and threatening a person with a loaded gun would have exposed the deceased to an appreciable risk of serious injury. You may have no difficulty in finding that threatening a person with a loaded gun is an unlawful and dangerous act.

The third element is made out if you find that the presentation of the loaded gun was a substantial and significant cause of the death of Mr Rasti. In other words, you would need to be satisfied as a matter of fact that the presentation of a loaded gun was a substantial or significant cause of the death of Mr Rasti.

I mention at this point that in addition to the other elements which must be established in order to find the accused guilty of manslaughter by reason of the commission of an unlawful and dangerous act, you would need to be satisfied beyond reasonable doubt that the accused knew or believed that the gun was loaded."

The Judge then dealt with manslaughter by criminal negligence. He explained that negligence sometimes may be regarded so seriously as to be described as criminal negligence, and to attract the punishment imposed by the criminal law for serious crimes. He said:

"When the conduct is such that a reasonable person in the accused's situation would appreciate it would give rise to a high risk that death or grievous bodily harm would follow and the departure from a reasonable standard of care is so great that it deserves to be treated as a serious crime, the conduct is regarded as sufficiently grave to be treated as criminal negligence."

"If the accused was party to a common purpose or joint enterprise with Mr Kamleh to take a gun into the apartment and to use the gun to threaten Mr Rasti and he foresaw the possibility that it might be used to threaten Mr Rasti in the course of a confrontation with him, and if he had done nothing either way to check whether the gun was loaded or unloaded, then depending upon your view of whether the accused's failure to check whether the gun was loaded or not constitutes criminal negligence and providing you are satisfied with the accused's failure to check whether or not the gun was loaded was a substantial and significant cause of the killing of Mr Rasti and Ms Ellul, then you may find the accused guilty of manslaughter by criminal negligence."

Although the Judge there referred to Ms Ellul, that must have been a slip, because the Judge had told the jury that there was no question of a verdict of manslaughter in relation to the death of Ms Ellul. Later, as a result of submissions by the Prosecutor, the Judge corrected that part of his summing up. He told the jury that manslaughter was also a possible verdict in relation to the death of Ms Ellul. He repeated the direction that he had given in relation to manslaughter on the basis of death resulting from an unlawful and dangerous act. As to the first part of the direction, he referred again to an arrangement to use a loaded gun to threaten Mr Rasti. He made no reference to Ms Ellul in that context. As to the third element in this direction, he told the jury that the presentation of the loaded gun had to be "a substantial or significant cause of the death of Mr Rasti and the death of Ms Ellul." He also repeated the whole of the direction in relation to manslaughter by criminal negligence. Once again, he spoke of a common purpose or joint enterprise to use a gun to threaten Mr Rasti. The only reference to Ms Ellul occurred when he told the jury that they had to be satisfied:

"... that the accused's failure to check whether or not the gun was loaded was a substantial and significant cause of the killing of Mr Rasti, and a substantial and significant cause of the killing of Ms Ellul...".

The prosecution case placed considerable reliance on statements made by Mr Zappia in the course of telephone conversations. The conversations were recorded using a listening device. The use of the device was authorised by warrants issued by Judges of this Court, on an application made under s 6 of the Listening Devices Act, the warrants having been issued under s 6 of the Act.

At least one of the warrants was issued on an application made by telephone. A judge may issue a warrant on a telephone application by virtue of s 6(6)(a) if satisfied:

"... that because of urgent circumstances it was necessary to make the application by telephone ...".

A judge may issue a warrant under s 6 only if satisfied that the issue of the warrant is justified having regard to matters set out in s 6(6)(b). They include:

"(iv) the extent to which that information would be likely to be obtained by methods of investigation not involving the use of a listening device."

In the present case, because the warrant authorised entry onto premises, the Judge in question also had to be satisfied of the matter set out in s 6(6)(c), namely that:

"... it would be impracticable or inappropriate to use a listening device pursuant to the warrant without entry onto the premises."

Counsel for Mr Zappia hoped to challenge the validity of the warrants on the basis that the material placed before the relevant Judge was insufficient to enable the Judge to be satisfied that it was necessary to make the application by telephone (in the case of a telephone warrant) and in relation to each of the warrants that the material was insufficient to enable the Judge to be satisfied as to the statutory criteria which I have just set out. In other words, counsel wished to submit to the trial Judge that on the material available to the Judge who issued each warrant it was not open to the Judge to be satisfied as to the relevant statutory requirements.

The difficulty was that counsel did not have the information placed before the Judges who issued the warrants.

The form of the warrant is prescribed by r 4 of the Listening Device Rules 1992. The prescribed form of warrant recites that the issuer of the warrant is "satisfied that the issue of the warrant is justified upon the conditions hereinafter appearing." The prescribed form does not provide for the basis upon which the Judge is so satisfied to be stated, nor for the material relied upon to be set out in or summarised in the warrant. Moreover, r 7 of the Listening Devices Rules provides that documents used in connection with an application under the Rules are to be lodged with the Judge in a sealed envelope. The practice of the Court is to retain relevant documents in a sealed envelope which is held by the Registrar of the Court.

Before the trial Judge, and on appeal, Mr Cuthbertson acknowledged that he had no basis for suggesting that the warrants were or might have been invalidly issued. He had no information to support a suggestion that any particular statutory criterion had not been satisfied. Mr Cuthbertson submitted that the material placed before the Judge must have dealt with the statutory criteria referred to above, and accordingly material relevant to the challenge he hoped to make must exist. On that basis he submitted that he should be given access to the material produced in response to the subpoena.

The trial Judge refused leave to inspect the material. The Judge did so because there was no material suggesting possible invalidity and nothing in the circumstances of the case to raise the possibility that the warrants were issued invalidly. Accordingly, the application to inspect the documents was made simply in the hope that something might emerge that might support an attack on the validity of the warrants.

I agree that the material to which access was sought would include material relevant to the matters of which the Judge had to be satisfied if a warrant was to be issued under the Listening Devices Act. This is not one of those cases in which it is not known if documents of the kind sought exist. In any event, the fact that it is not known whether a document of the kind sought actually exists is not necessarily of itself a valid objection to a subpoena requiring the production of a document: Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404; Carter v Hayes (1994) 61 SASR 451 at 453 King CJ. The fact that it can be said that the subpoena seeks the production of documents which will include material relevant to the matters upon which the issue of a valid warrant depended is not of itself sufficient to entitle Mr Zappia's legal representatives to inspect that material.

I doubt whether it is possible to state in general terms the circumstances in which a subpoena may and may not be used in criminal proceedings to secure the production of documents. However, it can at least be said that a subpoena may not be used by an accused person merely as a means of obtaining discovery of documents from the Commissioner of Police or from the prosecuting authority, or merely as a means of obtaining documents in the hope that the documents produced will include evidentiary material. In South Australia a person charged on an Information has statutory rights under the Summary Procedure Act 1921 to demand and to be given certain categories of information. As well, there is the common law duty of a Prosecutor to disclose certain classes of material that are available to the prosecution. The subpoena is not available as a means of making a general demand for documents simply because those documents might have some bearing on some aspect of criminal proceedings. On the other hand, the right of an accused person to demand the production of documents under subpoena is not to be unduly restricted. In Hunt v Wark (1985) 40 SASR 489 at 493-494 King CJ, having made the point that a subpoena may not be used merely to obtain discovery of documents or as a means of obtaining information in the hope that it may lead to the ascertainment of evidentiary documents, said (at 493):

"There must be some reason to suppose that the documents sought will be capable of being used as evidence."

Even that statement taken literally is too narrow. It is not necessary that the document be capable of being tendered as an exhibit. The manner in which King CJ expressed the position directs attention to the issues in the proceedings, the basis upon which the document is sought and the manner in which it is said the document might be used were it to be produced. These issues fall for consideration within the context of the negative proposition that a subpoena cannot be used merely to fish for the possibility of relevant material. In part that negative principle flows from the absence of any general obligation to make discovery in criminal proceedings of the kind that can be required, or at least could formerly be required, in civil proceedings in many jurisdictions.

In my opinion objection may be made to a requirement to produce a document in response to a subpoena unless there is material before the Court that raises an issue, or that is capable of raising an issue, that is material to the case and to which the document may be relevant. That is what I understand to have been the view of the Full Court in Carter v Hayes at 453 King CJ. In other words, there must be a live issue to which the document is relevant. The concept of an issue in this context is not to be interpreted narrowly. It is certainly not limited to the elements of the crime to be proved. But nor is it as wide as anything that might conceivably be of assistance to the accused.

So, in the present case, it is not sufficient for Mr Cuthbertson to submit that the documents sought are relevant in the extended sense in which relevance is used in the discovery of documents in civil proceedings. That is, that the documents merely relate in some way to a matter in issue in proceedings or might lead to a train of inquiry which would advance a party's own case or damage the case of the opponent. In criminal proceedings a document may be required to be produced on subpoena only if it has a bearing, or is capable on having a bearing, on a matter that is actually raised in the case. In the present case, production and inspection of documents is sought in the hope that the documents might disclose a ground for challenging the validity of the warrants under the Listening Devices Act. But as things stand there is no basis for raising an issue as to the validity of the warrants. There is no challenge to the validity of the warrants on their face. No material has been identified by Mr Cuthbertson raising any doubt about the validity of the warrants. There is nothing about the circumstances in which the warrants were issued which raises a possible doubt about their validity. The application to inspect documents is purely speculative. Inspection is sought in the hope that it will give rise to a ground to challenge the validity of the warrants. In short, although in one sense the validity of the warrants is an issue in the case, there is no material before the Court capable of raising any issue or doubt as to the validity of the warrants. For that reason, in my opinion, the Judge was right to refuse to order production and to refuse to permit inspection.

Mr Cuthbertson relied on the decision of the High Court in Alister. That was a different case. The accused were charged with murder and conspiracy to murder. An important prosecution witness was Seary who had joined the Ananda Marga, with which the accused were associated. Seary was a police informer, and a central prosecution witness. It was apparently well known that he was an agent and informer, and that he had been inquiring into the activities of the Ananda Marga. There were reasons to suggest that Seary may have been an agent of the Australian Security Intelligence Organisation ("ASIO"). It was accepted by the Court as quite likely that Seary had joined Ananda Marga as an undercover agent, and that it was likely that Seary would have made reports to ASIO concerning the activities of the accused. The accused challenged the prosecution case as a fabrication and a frame-up. If Seary had made a report to ASIO which showed that he had fabricated evidence that would be a most important matter. In that context the accused issued a subpoena to the Officer In Charge of ASIO requiring the production of, among other things, documents relating to any investigation by Seary into Ananda Marga and the activities of the accused. The Commonwealth Attorney-General objected to disclosing whether any such documents existed on the grounds that to do so would be prejudicial to national security. He objected to the disclosure of information that a person had or had not been employed by ASIO and information that ASIO had or had not carried out any particular investigation. The trial Judge refused to order that the Officer In Charge produce any of the documents described in the subpoena with a view to the Judge inspecting them to determine whether any such documents existed and, after inspection by the Judge, whether they should be made available to the defence. Thus, the issue arose on a claim of public interest immunity in relation to a demand by a subpoena for the production of documents.

By a majority the Court held that the trial Judge erred. He should have required the Officer In Charge to state if the documents existed, and should have required the production of any documents that did exist for inspection by the Court.

Mr Cuthbertson relied in particular on the following passage in the reasons of Gibbs CJ. It is important to remember that Gibbs CJ was dealing with the question of whether, on a claim of public interest immunity, the Judge should require the production of documents for inspection by the Court. Gibbs CJ said at 414-415:

"Just as in the balancing process the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial (see Sankey v. Whitlam (1978) 142 C.L.R., at pp.42, 62), so, in considering whether to inspect documents for the purpose of deciding whether they should be disclosed, the court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings. Although a mere 'fishing' expedition can never be allowed, it may be enough that it appears to be 'on the cards' that the documents will materially assist the defence. If, for example, it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report could assist the accused. To refuse discovery only for that reason would leave the accused with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, and would be likely to give rise to the reproach that justice had not been seen to be done."

Murphy J agreed on this point with Gibbs CJ: at 431. Brennan J was in substantial agreement with Gibbs CJ. I will come to his reasons in a moment. Wilson and Dawson JJ dissented.

Mr Cuthbertson submitted that there must be documents in existence that would bear on matters on which the Judge had to be satisfied if the warrants were validly issued, and that therefore it must be "on the cards" that the documents would materially assist the defence. He made the point that in the passage cited Gibbs CJ recognised the possibility that a report of which disclosure was required might not actually assist the accused.

In my opinion it is clear that the remarks of Gibbs CJ are to be understood in their particular context. That context was that Seary was a vital witness, there was a live challenge to his evidence on the grounds of fabrication, and so fabrication by Seary was a live issue in the case. If Seary had made a report that showed that he had fabricated his evidence, it would be dangerous to allow the conviction to stand: Gibbs CJ at 415. In that context the interest of the accused to obtain any such report was not outweighed by the public interest that would ordinarily require that investigations by ASIO be kept secret: Gibbs CJ at 415. By contrast, in the present case it cannot be said in the same way that the validity of the warrants is a live issue. Nothing has been identified that casts any doubt on the validity of the warrants. The possibility of the subpoenaed documents giving rise to the validity of the warrants is entirely speculative. That, in my opinion, is the material distinction between the present case and Alister. As well, the validity of the warrants was not a central issue in the case. The prosecution had other evidence apart from the intercepts. The invalidity of the warrants did not necessarily mean that the evidence of the telephone conversations would be excluded. The fact that the application of the principle with which the Court is now concerned turns on the particular circumstances, is supported by the reasons of Brennan J. He also examined the facts of the case in some detail. He did not think it would be right to make documents available for inspection if they merely damaged Seary's credit. But if there were documents showing the Crown case to be a fabrication, he thought that production would be called for. And, as he said, unless the Judge inspected the documents, it was impossible to know whether such crucial documents existed: at 455. Brennan J recognised that in one sense the subpoena was "a fishing expedition": at 455. The need to consider the case as a whole is borne out by the following passage from his reasons (at 456-457):

"The power of a criminal court to compel the production of government documents on the application of an accused person is a safeguard of individual liberty, but the power must be carefully used. The gravity of the charge, the nature of the issues, the evidence in the case and the terms of the affidavit claiming public interest immunity are relevant factors for the court to consider in deciding whether to inspect the documents. In the present case, the charges against the accused stand high in the calendar of crimes, the central issue was whether the accused had been framed by security forces and the affidavit was unsatisfactory since it claimed a blanket immunity from disclosure. In these circumstances, the learned trial judge ought to have inspected the documents sought by the subpoena (if any documents existed) to ascertain whether one or more documents showed the alleged fabrication and frame-up."

As he said, in that case the documents had a bearing on a central issue in the prosecution. That is a clear point of distinction from the present case.

Wilson and Dawson JJ dissented. They rested their dissent on the speculative nature of the claim that the ASIO documents might have a significant bearing on the case. They said at 439:

"A bare unsupported assertion that on inspection something may be found that is helpful to the defence is not enough."

I am satisfied that Alister does not support a principle wide enough to assist Mr Cuthbertson's submission in the present case. In the present case production is not sought to advance a submission, supported in some way by evidence or by the circumstances of the case, that the warrants were issued invalidly. Production is sought in the hope of enlivening such a submission.

Section 15A of the Criminal Law Consolidation Act relevantly provides:

"15A.(1) It is a defence to a charge of an offence if-

(a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable-

(i) to protect property from unlawful appropriation, destruction, damage or interference; or

(ii) to prevent criminal trespass to land or premises, or to remove from land or premises a person who is committing a criminal trespass; or

(iii) to make or assist in the lawful arrest of an offender or alleged offender or a person who is unlawfully at large; and

(b) if the conduct resulted in death-the defendant did not intend to cause death nor did the defendant act recklessly realising that the conduct could result in death; and

(c) the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.

(2) It is a partial defence to a charge of murder (reducing the offence to manslaughter) if-

(a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable-

(i) to protect property from unlawful appropriation, destruction, damage or interference; or

(ii) to prevent criminal trespass to land or premises, or to remove from land or premises a person who is committing a criminal trespass; or

(iii) to make or assist in the lawful arrest of an offender or alleged offender or a person who is unlawfully at large; and

(b) the defendant did not intend to cause death; but

(c) the conduct was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist."

The submission in support of Ground 2 is that the Judge should have directed the jury in terms of s 15A(1). The Judge declined to do so. Mr Cuthbertson submitted that, on the evidence, it was open to the jury to consider that Mr Zappia genuinely believed that the conduct of Mr Kamleh in going to the apartment and threatening Mr Rasti with an unloaded gun or with a loaded gun was necessary and reasonable to protect Mr Kamleh's mobile phone from unlawful appropriation or interference, and that if the prosecution could not persuade the jury otherwise, the jury might well have acquitted because, having regard to the acquittal on the charge of murder, they could not have been satisfied that Mr Zappia intended to cause death or acted recklessly realising that the relevant conduct could result in death: s 15A(1)(b). He also submitted that the jury might not have been satisfied that the conduct in question was not reasonably proportionate to the threat that Mr Zappia believed to exist.

The submissions in this case revealed a number of difficulties in the application of s 15A to a case in which a person is charged on the basis of common purpose or joint enterprise. The section does not work satisfactorily in such a case. It requires reconsideration. However, I put that broader issue to one side.

Another issue that arises is whether "the conduct to which the charge relates" is the presentation and use of a loaded gun, which is what must have occurred, or the presentation of an unloaded gun, which might be all the jury were satisfied Mr Zappia genuinely believed would occur. If the jury were not satisfied that Mr Zappia knew the gun was loaded, they might take the view (ignoring the burden of proof) that he genuinely believed the use of an unloaded gun was necessary and reasonable to protect property, did not intend to cause death or to act recklessly, and might decide that the use of an unloaded gun was reasonably proportionate to the threat that Mr Zappia genuinely believed to exist.

I find it unnecessary to resolve this issue, although if the section is not improved it may be necessary to resolve it one day. There are two reasons why, in my opinion, the Judge's decision was right.

First, to make sense of s 15A it should be read as relating to a situation in which there is a threat of "appropriation, destruction, damage or interference." I do not accept that Parliament intended s 15A to apply to a situation in which the defendant is attempting to retrieve or to recover property, as distinct from protecting property which is in the possession of the defendant. In the present case the mobile telephone was not in the possession of Mr Kamleh or Mr Zappia. Although Mr Rasti was refusing to return it, that refusal does not fall within s 15A(1)(a)(i).

Furthermore, I accept the submission by Ms Kelly, counsel for the Director, that there was no evidence that Mr Zappia genuinely believed that the use of a pistol was necessary and reasonable to retrieve the mobile telephone. Mr Zappia denied this on a number of occasions. The tenor of his evidence was to the effect that he saw no need to use a pistol, loaded or unloaded. This was not a case in which, on the evidence, it was appropriate for the Judge to leave this defence.

Accordingly, for those reasons I reject Ground 2.

In evidence in chief Mr Zappia said that on the Tuesday before the shooting Mr Kamleh asked him if he could get a gun. Mr Kamleh said he wanted a gun so that he could threaten Mr Rasti and get back the mobile telephone. Mr Zappia said that he replied that he could not get a gun for Mr Kamleh. He said (in evidence to the jury) that he did not know anyone that could get a gun.

There was evidence before the jury that Mr Zappia had access to a gun. The Prosecutor was in a position to prove the falsity of Mr Zappia's statement that he did not know anyone with a gun. A pistol belonging to Mr Zappia's brother had been found at their parents' home. The Prosecutor had evidence, from telephone intercepts, that Mr Zappia knew it was hidden there. There was no suggestion that this was the gun used to kill the victims. The Prosecutor submitted that if it was proved that Mr Zappia lied when he told the jury he did not know anyone who could get a gun, that would go to his credit. As well, it was relevant for the jury to know that Mr Zappia did have access to guns. The prosecution was not in a position to prove the source of the gun used in the killing. If left with the false impression that Mr Zappia did not have any means of access to guns, the jury might have a false picture on the issue of who might have procured the gun used for the shooting. The Prosecutor had been prepared not to pursue this line until Mr Zappia made the claim just mentioned in evidence.

The Judge permitted the cross-examination. Mr Zappia admitted that the statement was a lie. He admitted that he knew a number of people who could get a gun. Over a further objection Mr Zappia was then asked whether, and admitted that, he had lied to the police when he told them that there were no guns at his parents' house. He was asked and admitted that he knew that his brother had a pistol concealed there. This further questioning established a further lie, and the fact that a gun or guns were concealed at his parents' home.

Mr Cuthbertson submitted that this latter evidence was unfairly prejudicial. Mr Zappia had admitted what might be called the primary lie. To prove that he knew a gun or guns were hidden at his parents' home, even though they were not his guns, was unnecessary and prejudicial.

Once Mr Zappia had admitted the lie, it would have been better if the cross-examination had been left there. The proof of another lie about guns, and proof that his brother had a gun or guns at their parents' home, did have a prejudicial tendency. I acknowledge that proof of that fact also had some relevance to the issues at trial, although the evidence was not of much significance once Mr Zappia had admitted the lie.

I am satisfied that this evidence could not have led to a miscarriage of justice. However it was viewed, in context it was insignificant. By that I mean I consider that the prejudicial effect was not particularly significant, nor was the probative value particularly significant. The Judge gave the jury a specific direction not to reason that because Mr Zappia knew people from whom he could get a gun that he was the type of person likely to have committed the crimes in question. Under all the circumstances, I am satisfied that these questions, even if they should not have been asked, could not have led to a miscarriage of justice. Accordingly, this ground of appeal must fail.

Ground 3 challenges the direction given to the jury relating to manslaughter by unlawful and dangerous act.

The direction was premised on the concept of a common criminal purpose or joint criminal enterprise. For convenience I will refer simply to a joint enterprise. The Judge had earlier given the jury an adequate general direction about the concept of joint enterprise. The Judge had also told the jury, in a passage that I have set out above, that in the case of joint enterprise one of the parties would generally not be liable for an act committed by the other party that was "quite unexpected and quite outside the contemplation" of the relevant accused. However, as I noted above, the Judge did not apply this direction to the facts of the case.

The joint enterprise under consideration in relation to manslaughter had to be one that did not include as its purpose that Mr Rasti would be killed or that serious bodily harm would be inflicted on him. If that had been the purpose, a conviction for murder would have followed. The direction in question must be approached on the basis, from Mr Zappia's point of view, that the joint enterprise did not have the purpose of causing death or serious bodily harm, and that Mr Zappia did not contemplate this as a possibility. It must also be borne in mind that the evidence suggested that Mr Rasti and Ms Ellul were shot deliberately, and not accidentally. There was no evidence suggesting an accidental discharge of the pistol in the course of a struggle or in some other way.

It is also important to emphasise that the basis of the direction was that Mr Zappia knew that Mr Kamleh had a loaded gun and intended to use the loaded gun to threaten Mr Rasti. The direction assumes that Mr Kamleh had the same purpose, and also that Mr Kamleh might have formed an intention to kill or cause grievous bodily harm. The direction assumes that intention was not known to Mr Zappia, nor contemplated by him as a possibility.

Mr Cuthbertson submits that the Judge erred in failing to tell the jury that if, unknown to Mr Zappia, Mr Kamleh intended to kill Mr Rasti from the outset, or if he formed an intention to kill during the course of the incident, and then killed Mr Rasti deliberately, the jury could not convict Mr Zappia of manslaughter unless satisfied that the deliberate killing of Mr Rasti was not an unexpected event completely outside the scope of the joint enterprise. Underlying the submission is the proposition that Mr Zappia could be liable only for a consequence of the joint enterprise that was within his contemplation as a likely or possible incident or outcome of the joint enterprise.

Mr Cuthbertson puts the submission in the alternative, in terms of causation. He complains that the Judge did not tell the jury that they could convict of manslaughter only if satisfied that Mr Kamleh's decision to kill Mr Rasti, and the deliberate firing of the pistol, did not break the chain of causation between the use of a loaded firearm to threaten Mr Rasti and the death of Mr Rasti. Mr Cuthbertson submits the Judge had to bring to the jury's attention the need to reach a conclusion on the relationship between the joint enterprise and death by deliberate shooting, although he accepted that this could be done either by a direction related to the scope of the joint enterprise or by a direction which dealt with the matter in terms of causation.

There is a further complaint that the Judge did not give the jury adequate directions in relation to Mr Zappia's liability for the killing of Ms Ellul. Mr Cuthbertson submits that the joint enterprise was described as an enterprise involving the use of a loaded gun to threaten Mr Rasti, and that that was the only form of joint enterprise supported by the evidence. He complains that the Judge did not direct the jury to consider whether and how that joint enterprise could include a threat to Ms Ellul, and did not include any direction as to how the death of Ms Ellul might be regarded as a result of that joint enterprise. When the Judge corrected his initial direction he did tell the jury, in relation to manslaughter by unlawful and dangerous act and manslaughter by criminal negligence, that they would have to be satisfied that the presentation of the loaded gun:

"... was a substantial and significant cause of the death of Mr Rasti and a substantial and significant cause of the death of Ms Ellul."

But he complains that the jury were given no assistance on this point, and that concealed within this general statement was the issue of how a threat to Mr Rasti using a loaded gun could be linked to the death of Ms Ellul.

The issue that arises is conveniently summarised in Gillies, Criminal Law (4th Ed LBC Information Services 1997) at 179-180. There the author says:

"In some fact situations, however, the accessory's position will be more ambiguous. These will be the situations where P and D have agreed to commit a lesser assault which assault, should it take place, will incriminate each of them in manslaughter; but in the course of which assault one of them, P, independently resolves to inflict lethal violence and thereby independently causes the death of the victim. Is D thereby rendered guilty of being an accessory to manslaughter, or is D guilty (whether as principal or accessory) merely of the assault planned to be committed?

Logically, D would be guilty of assault only, where the act which in fact caused death - the lethal act of P - was beyond D's contemplation, with the result that it never became a term in their agreement. This analysis, which accords with that basic requirement of the principles of accessorial liability, that D must foresee the possible commission of the incriminating act, has been applied by the courts in a number of occasions. In these decisions the distinction is drawn between the act contemplated and the act actually committed. ...

A countervailing line of authority is to the effect that where two persons agree to commit an unlawful assault upon V, of a quantum which would ground liability for manslaughter only in each of them should death inadvertently result, but in the course of which assault one of them independently resolves to kill V and does so by an independent act, the confederate is nonetheless guilty of manslaughter as an accessory." (Footnotes omitted.)

R v Anderson [1966] 2 QB 110 is frequently cited in this context. Anderson and Morris were charged with murder. Anderson was convicted of murder and Morris of manslaughter. Morris appealed. Anderson and Morris had set out to attack another man. There was evidence suggesting that Anderson was seen punching the deceased, Morris standing at the back of the deceased, not taking any definite part in the fight. There was also evidence that Anderson was armed with a knife, but Morris denied knowing that Anderson had the knife. The Judge had directed the jury that even if Morris did not know Anderson had the knife, they could convict Morris of manslaughter on the basis of a common design to attack the deceased, and even though Anderson at some time formed the intention to kill the deceased using the knife of which Morris was unaware.

The Court held that the direction was incorrect. It is important to bear in mind that the Court proceeded on the premise that the Judge told the jury they could convict of manslaughter even though Morris did not know that Anderson was carrying a knife. The implication in the Court's reasons is that had the direction proceeded on the premise that Morris was aware Anderson had the knife, it would have been correct. The Court appears to have accepted the following submission by counsel for Morris (at 118):

"... that where two persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise, that that includes liability for unusual consequences if they arise from the execution of the agreed joint enterprise but (and this is the crux of the matter) that, if one of the adventurers goes beyond what has been tacitly agreed as part of the common enterprise, his co-adventurer is not liable for the consequences of that unauthorised act."

"It seems to this court that to say that adventurers are guilty of manslaughter when one of them has departed completely from the concerted action of the common design and has suddenly formed an intent to kill and has used a weapon and acted in a way which no party to that common design could suspect is something which would revolt the conscience of people today."

The Court also touched on the issue of causation. It said (at 120) that:

"... there may well be an overwhelming supervening event which is of such a character that it will relegate into history matters which would otherwise be looked upon as causative factors."

Mr Cuthbertson submits that the decision by Mr Kamleh to kill was not an unusual consequence of the joint enterprise, but something that went beyond the joint enterprise, a complete departure from it.

In Varley v The Queen [1906] ArgusLawRp 84; (1976) 12 ALR 347; (1976) 51 ALJR 243, the appellant was convicted of manslaughter. The appellant and two other men went to the deceased's residence. The plan was to beat him up to compel him to hand over the proceeds of an illegal transaction in which some of them had been involved. The beating was to be carried out by the other two men. The deceased was a strong man, well able to defend himself. There was evidence that the other two men had in their possession a baton or cosh. The evidence suggested that the deceased died as a result of the beating that was administered. The Judge directed the jury that the appellant could be guilty of manslaughter if the two men used a degree of violence which the appellant had not expected, and even though the appellant was not aware that batons as distinct from fists might be used. The direction given does not appear to have reflected the concepts referred to in Anderson. The complaint was that the use of batons was beyond the scope of the joint enterprise, and the appellant was not criminally liable for the consequences of their use. In particular, the complaint was that the jury should have been directed that they had to be satisfied that the use of a baton was within the scope of the joint enterprise.

Barwick CJ, with whom the other members of the Court agreed, rejected this submission. He said (at 353):

"I am clearly of opinion, however, that, even on the assumption that the appellant did not know of the availability of the baton or cosh, or of its intended use (an assumption the jury were not bound to accept), it could not reasonably be held that the use of such an instrument or weapon as a baton or cosh was not in all the circumstances within the scope of the common design to beat or 'rough up' the deceased. The judge, in my opinion, placed the use of the weapon in its correct perspective when he treated it, if its use was not foreseen by the appellant, as no more than an unexpected incident in carrying out the common design. The circumstances of the case are not the same as those in R v Anderson and Morris [1966] 2 QB 110; [1966] 2 All ER 644, which was pressed upon us by the appellant's counsel. There a knife was carried and used with intent to kill by stabbing. It was there possible to regard its use as beyond the scope of the common design to which it was established the accused in that case was a party. Here the use of the baton or cosh, even if not actually contemplated, was clearly a likely means of carrying out the plan of beating up Burton: and obviously within the scope of that plan. There is therefore no need to discuss the question whether or not the judge gave specific attention in his summing up to the scope of the common design."

Barwick CJ appears to contemplate the possibility that the other two men were guilty of murder. This may well have been on the basis of an intention to cause grievous bodily harm. The reasons of Barwick CJ also accept that the appellant could be guilty of manslaughter even though the degree of force used, and the use of batons (which appears to have been particularly linked to the excessive violence) were not contemplated by the appellant. The basic concept identified by Barwick CJ was that of liability for what was no more than "an unexpected incident in carrying out the common design." The common design was to give a beating, and the use of batons was within the scope of that common design, although not contemplated.

A similar issue was considered by the High Court in Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108. Markby and Holden had gone together to meet with a man named Syrch. At the suggestion of Holden, Markby had a dismantled rifle in a travel bag. Markby said that the purpose of the meeting was to sell marijuana to Syrch. The prosecution case was that the accused intended to rob Syrch and to kill him. The meeting took place, and during the meeting Holden was carrying the rifle. Markby said that while Markby was speaking to Syrch, the rifle held by Holden was discharged and Syrch was shot. Markby and Holden were both convicted of murder. It was not in dispute that there was evidence on which the conviction could be sustained. There was strong evidence supporting a plan to rob Syrch, but the evidence pointing to a plan to kill or injure Syrch was not as strong. The shooting could have been accidental, or may have been done by Holden on the spur of the moment. The complaint on appeal was that the Judge had told the jury that a verdict of manslaughter in respect of Markby was available only if Holden was not guilty of murder. This was held to be erroneous. Accordingly, it was necessary to consider the circumstances in which Holden could be guilty of murder and Markby guilty of manslaughter. Gibbs ACJ said (at 112-113):

"When two persons embark on a common unlawful design, the liability of one for acts done by the other depends on whether what was done was within the scope of the common design. Thus if two men go out to rob another, with the common design of using whatever force is necessary to achieve their object, even if that involves the killing of, or the infliction of grievous bodily harm on, the victim, both will be guilty of murder if the victim is killed: Reg. v. Lovesey [1970] 1 Q.B. 352, at p.356. If, however, two men attack another without any intention to cause death or grievous bodily harm, and during the course of the attack one man forms an intention to kill the victim, and strikes the fatal blow with that intention, he may be convicted of murder while the other participant in the plan may be convicted of manslaughter: Reg. v. Smith [1963] 1 W.L.R. 1200, at p.1205-1206; [1963] 3 All E.R. 597, at p.601; Reg. v. Betty (1963) 48 Cr. App. R. 6.; Reg. v. Lovesey [1970] 1 Q.B. 352, at p.356. The reason why the principal assailant is guilty of murder and the other participant only of manslaughter in such a case is that the former had an actual intention to kill whereas the latter never intended that death or grievous bodily harm be caused to the victim, and if there had not been a departure from the common purpose the death of the victim would have rendered the two participants guilty of manslaughter only. In some cases the inactive participant in the common design may escape liability either for murder or manslaughter. If the principal assailant has gone completely beyond the scope of the common design, and for example 'has used a weapon and acted in a way which no party to that common design could suspect', the inactive participant is not guilty of either murder or manslaughter: Reg. v. Anderson; Reg. v. Morris [1966] 2 Q.B. 110, at p.120. If however the use of the weapon, even if its existence was unknown to the other party, is rightly regarded as no more than an unexpected incident in carrying out the common design the inactive participant may be convicted of manslaughter: Varley v. The Queen (1976) 51 A.L.J.R. 243, at p.246."

Gibbs ACJ approved the following statement of principle by the Court of Criminal Appeal in Reid (1976) 62 Cr App R 109 at 112:

"In ANDERSON AND MORRIS (1965) 50 Cr.App.R. 216; [1966] 2 Q.B. 110, a distinction was drawn between a mere unforeseen consequence of an unlawful act and 'an overwhelmingly supervening event which is of such a character that it will relegate into history matters which would otherwise be looked upon as causative factors'; see the judgment of Lord Parker C.J. at pp. 223 and 120. Was O'Conaill's deliberate firing of the revolver 'a mere unforeseen consequence' of the unlawful possession of offensive weapons? We adjudge it was. When two or more men go out together in joint possession of offensive weapons such as revolvers and knives and the circumstances are such as to justify an inference that the very least they intend to do with them is to use them to cause fear in another, there is, in our judgment, always a likelihood that, in the excitement and tensions of the occasion, one of them will use his weapon in some way which will cause death or serious injury. If such injury was not intended by the others, they must be acquitted of murder; but having started out on an enterprise which envisaged some degree of violence, albeit nothing more than causing fright, they will be guilty of manslaughter."

In that case the Court was dealing with a situation in which there was a joint enterprise involving an intention to do harm using offensive weapons, the appellant not intending either death or serious injury, but one of the participants going beyond anything the appellant intended and deliberately killing the victim.

A similar approach has been taken in New Zealand in R v Tomkins [1985] 2 NZLR 253. There the Court of Appeal said (at 254):

"There is no lack of previous cases recognising or consistent with the view that if a defendant joints in a criminal enterprise intending that knives will be used, albeit only to threaten, he is or may be guilty of manslaughter if another party to the enterprise uses a knife to kill with murderous intent."

The Court referred to the decisions in Markby and in Reid in particular, specifically approving the latter part of the passage cited above from Reid.

The decision in R v Collie [1991] SASC 2996; (1991) 56 SASR 302, was relied upon by Mr Cuthbertson. The issue in that case was whether the Judge erred in failing to leave manslaughter to the jury as a possible verdict. Lovegrove was appealing against a conviction for murder. The case was one in which the deceased man was abducted by several men including Lovegrove. Some months later his body was found. He had been shot. The basis upon which Lovegrove argued that manslaughter should have been left to the jury as a possible verdict was summarised as follows by King CJ (at 315):

"Lovegrove said, in effect, that he thought that the deceased was being abducted for the purpose of interrogation only and that he was unaware of any intention to kill. He believed that the loaded firearm was to be used only by way of threat to the deceased in order to keep him under restraint. The effect of the statement is that, unknown to Lovegrove, his two companions harboured from the beginning an undisclosed intention to murder the deceased."

As to whether manslaughter was a possible verdict on that basis, King CJ said at 315-316:

"There can be no doubt that it was a confession to engaging in an unlawful act consisting of a false imprisonment of and an assault upon the deceased in common with the other two men, and an act which was dangerous by reason of the carrying of the loaded firearm. The statement also conveys that murder was not within Lovegrove's contemplation. In those circumstances, if the death of the deceased resulted from the unlawful and dangerous act, Lovegrove would be guilty of manslaughter: see R v Smith [1963] 1 WLR 1200; [1963] 3 All ER 597. But not all deaths occurring in the course of an unlawful and dangerous enterprise which does not include murder in its scope result in criminal liability for manslaughter on the part of the participants. Questions of causation arise. ...

In the present case I feel no doubt that if the death had resulted from the accidental discharge of the loaded firearm Lovegrove would be guilty of manslaughter. If one of the participants had formed, through panic or anger, a sudden intention to wound or kill the deceased, I think, on the authority of R v Smith (supra), that that would be regarded as a result of the dangerous act of carrying a loaded firearm as part of the joint enterprise and that Lovegrove would be guilty of manslaughter. That, however, is not what Lovegrove's statement conveys. It conveys that the death of the deceased was the result of a deliberate act which could only have been premeditated and which indicated that his companions had entertained the intention to kill from the beginning. In those circumstances, it seems to me that the death cannot be regarded as having been caused by the dangerous nature of the enterprise into which Lovegrove had entered. The cause of the deceased's death was unrelated to any danger created by imprisonment of the deceased or the carrying of the loaded firearm for the purpose of restraining him. The cause was the murderous intention entertained, unknown to Lovegrove, by the other two participants. In those circumstances I do not think that a verdict of manslaughter was open upon Lovegrove's statement and there is no basis in the evidence upon which manslaughter could have been left to the jury as a possible verdict."

The other members of the court agreed with King CJ.

King CJ accepted that a conviction for manslaughter would have been open, on the facts of the case, had one of the participants formed "a sudden intention, to kill or to wound". That could be regarded as a result of the dangerous act of using a loaded firearm. However, King CJ interpreted Lovegrove's statement as referring to a preconceived plan by the other accused, entertained from the outset, to kill the victim. He took the view that because of that preconceived plan the death of the victim could not be regarded as resulting from the dangerous nature of the enterprise, that is, the danger created by abducting the deceased and using a loaded firearm to restrain him.

Mr Cuthbertson submitted that if it was reasonably possible that Mr Kamleh had an intention from the outset to kill Mr Rasti, then the cause of death was that murderous intention entertained from the outset, and not the dangerous nature of the enterprise into which Mr Zappia entered.

This Court is bound by the statement of principle found in Markby, which statement is itself founded on the High Court's earlier decision in Varley. The decision in Collie is an application of that principle, but the particular distinction that King CJ drew is a distinction in the application of the principle to the particular facts before him, and not a statement of principle that binds this Court.

Finally, I refer to the decision of this Court in R v Cozzi [1999] SASC 174; (1999) 73 SASR 374. In his reasons Martin J, with whom the other members of the Court agreed, applied the principle stated in Markby, and in particular contrasted an act going completely beyond the scope of the common design, a participant acting in a way which no party to the common design could suspect, and on the other hand an act that was no more than an unexpected incident in the carrying out of the common design: at [60].

As I observed earlier, the relevant direction was given on the basis that the jury was satisfied that Mr Zappia knew Mr Kamleh was carrying a loaded gun and intended to use it to threaten Mr Rasti. That is an important point. Mr Zappia knew that a dangerous weapon was being taken to the scene. Having regard to the nature of the joint enterprise, involving a confrontation between Mr Rasti and Mr Kamleh, who had had a volatile relationship, Mr Kamleh using a loaded gun to threaten Mr Rasti, an inevitable conclusion was that if, in the course of the confrontation, Mr Kamleh formed an intention to kill, that was no more than an unexpected incident in the carrying out of the common design. The conclusion might be different if Mr Zappia did not know that Mr Kamleh had a gun with him. It might be different if the confrontation had occurred under different circumstances. The application of the relevant principle depends upon the facts.

Would it make any difference if it were a reasonable possibility that Mr Kamleh formed the intention to kill relatively early in the piece, perhaps shortly before, or as the men entered the apartment? My view is that in the circumstances of this case it would not. The joint enterprise that is posited was, all along, to confront Mr Rasti, and to use the loaded pistol to threaten him. I do not consider that it makes any difference when Mr Kamleh formed the intention to kill. If the formation of that intention during the course of the confrontation is no more than an unexpected incident in carrying out the common design, my view is that it makes no difference if the intention was formed before the confrontation began. Considering the matter in terms of causation, as King CJ did in Collie, my view is again that the cause of the death was a result of the dangerous act of using the loaded gun to confront and threaten Mr Rasti. In the circumstances, I would not draw a distinction of the kind that King CJ drew on the particular facts in Collie.

The Judge should have directed the jury along the lines of the statement of principle to be found in Markby. When explaining the concept of common purpose or joint enterprise, the Judge explained that there is a limit to what the common purpose or joint enterprise embraces. That part of his direction is set out above. But the Judge should have applied it to the facts, and should have dealt with the issues that I have canvassed. In that respect, the summing up was inadequate. But there can be no doubt that had the direction been given, the jury would have convicted of manslaughter. In that respect the case is similar to Varley. In other words, I am satisfied that the omission of the relevant direction has not given rise to a miscarriage of justice. In the circumstances, assuming a joint enterprise involving the use of a loaded gun, a conviction on this basis was inevitable.

In my opinion it is better in such a case to direct the jury in terms of the scope of the joint enterprise, and the possibility of a departure from that joint enterprise, rather than in terms of causation. Approaching the issue as one of causation tends to raise other problems. It might be thought that on any view of the case the presentation of the loaded gun was "a substantial and significant cause of the death of Mr Rasti." If the matter is dealt with in terms of causation, it becomes necessary to explain when and why the presentation of the loaded gun might not be a substantial and significant cause of death, and that seems to me to require the introduction of the concept of the scope of the joint enterprise dressed up in terms of causation. That, I think, is an unnecessary complication.

The direction given to the jury in relation to manslaughter by criminal negligence involves two different concepts. The first is the concept of joint enterprise. For the purposes of this direction the joint enterprise involved using a gun to threaten Mr Rasti. But although not stated by the Judge, the implicit assumption was that Mr Zappia did not know that the gun was loaded. However, there can be no doubt that Mr Zappia knew the gun might be loaded. For these purposes it was a joint enterprise involving the use of a gun, that might be loaded, to threaten Mr Rasti.

There can be no doubt about this point. The evidence that Mr Zappia knew the gun might be loaded was overwhelming. Mr Kamleh had told Mr Zappia that he needed bullets. Mr Kamleh had asked Mr Zappia to ask others for bullets. Mr Zappia had tried to persuade Mr Kamleh that he did not need a loaded gun. But Mr Kamleh indicated that he wanted bullets. Mr Zappia knew that Mr Rasti was an aggressive man, and admitted he knew that things could go wrong if Mr Kamleh confronted Mr Rasti with a loaded gun. Mr Zappia had an opportunity to check the gun to see if it was loaded.

It is on that basis that I say that there was overwhelming evidence that Mr Zappia knew the gun might be loaded.

The second concept introduced by the Judge's direction to the jury is that of criminal negligence. The direction does not focus on the conduct of Mr Zappia in going to the apartment with Mr Kamleh, knowing that he was carrying a gun that might be loaded and knowing that he intended to confront Mr Rasti. The direction focuses on the failure to check on whether the gun was loaded, the failure occurring presumably at some stage before they got out of the car to go to the apartment. The Judge did not identify any particular stage of events at which the failure to check if the gun was loaded became significant.

The Judge posed for the jury the question of whether that failure gave rise to "a high risk that death or grievous bodily harm would follow", such that it should be treated as criminal negligence.

In my respectful opinion the matter could have been put more simply to the jury in another way. The Judge could have directed the jury that they could convict Mr Zappia of manslaughter on the basis that there was a joint enterprise involving Mr Kamleh threatening Mr Rasti with a pistol, which Mr Zappia knew might be loaded. The unlawful and dangerous act would be the threatening of Mr Rasti with a pistol that might be loaded. That is the more natural way of looking at the case.

To my mind, if the matter had been put to the jury that way, there can again be no doubt that the jury would have concluded that the shooting of Mr Rasti was no more than an unexpected incident in carrying out the joint enterprise, and did not go completely beyond the scope of the joint enterprise. In the particular circumstances of the case, knowledge that the gun might be loaded would lead inevitably to that conclusion. No complaint could be made about a conviction on that basis.

Does it matter that the Judge left the case in this respect to the jury as he did?

I do not consider that it does. Mr Zappia's failure to check whether the gun was loaded is merely an aspect of his involvement in the joint enterprise to threaten Mr Rasti. It explains why he might not have known that the gun was actually loaded, although he must have known that it might be loaded. To convict Mr Zappia on this basis, it was not necessary for the jury to consider separately whether the failure to check whether the gun was loaded was an act of criminal negligence. There is no doubt that Mr Zappia did not check whether the gun was loaded. That means that he went to the apartment knowing it might have been loaded. That (in the factual setting) establishes the basis for the conviction of manslaughter.

The manner in which the Judge left this aspect of the case to the jury was unduly favourable to Mr Zappia, because it opened up the possibility of an acquittal if the jury decided that the failure to check on the gun was not, in itself, an act of criminal negligence. That was an acquittal to which Mr Zappia was not entitled.

If the jury convicted Mr Zappia on the basis of this direction, they convicted him for participating in the joint enterprise, knowing that the gun might be loaded. For reasons that I have explained, I regard a conviction on that basis as inevitable, and accordingly the manner in which the Judge left this aspect of the case to the jury cannot have been productive of a miscarriage of justice. It is an appropriate case in which to apply the proviso.

Putting things a little differently, if the jury convicted on this basis they convicted on the basis of a joint enterprise involving an unlawful and dangerous act (threatening Mr Rasti with a gun that Mr Zappia knew might be loaded), and on the basis of a shooting in the course of that joint enterprise which can only be regarded as an unexpected incident in the course of the joint enterprise.

Ground 3 and Ground 4 - conviction for manslaughter of Ms Ellul

I consider that the conviction for manslaughter of Ms Ellul must be set aside.

Mr Zappia was guilty of the manslaughter of Ms Ellul if her shooting by Mr Kamleh could be regarded, in terms of the principle laid down in Markby, as no more than an unexpected incident in carrying out the joint enterprise to threaten Mr Rasti with a loaded pistol, or with a pistol that might be loaded.

There is no suggestion that the joint enterprise encompassed the making of any threat to Ms Ellul.

It was open to the jury to conclude that Mr Zappia was guilty of manslaughter of Ms Ellul. She was known to be in the apartment when Mr Zappia and Mr Kamleh went to confront Mr Rasti, and she was known to be the girlfriend of Mr Rasti. But one cannot say that the jury would inevitably have concluded that the deliberate shooting of Ms Ellul was no more than an unexpected incident in carrying out the joint enterprise. Presumably Mr Kamleh shot her because she was a witness to his shooting of Mr Rasti. A decision to do that is a conceivable incident of the joint enterprise, but by no means an obvious one.

As I have previously indicated, in my respectful opinion the Judge's direction to the jury does not adequately direct the jury about the need to consider the scope of the joint enterprise. In relation to the death of Mr Rasti, I am satisfied that that could not have given rise to a miscarriage of justice. But in relation to the death of Ms Ellul, I am unable to conclude that the jury, even if properly directed, must have decided that Mr Zappia was guilty.

For those reasons I would dismiss the appeal against the conviction for the manslaughter of Mr Rasti, but allow the appeal against the conviction for the manslaughter of Ms Ellul, set aside the conviction, and order that there be a retrial on the charge of manslaughter. The Judge imposed a single sentence in respect of each count. The sentence must also be set aside.

LANDER J: I agree with the Chief Justice's reasons and the orders which he has proposed.

MARTIN J: I agree with the orders proposed by the Chief Justice for the reasons he has given.