R v ZAPPIA No. SCCRM-02-132 [2002] SASC 354

R v ZAPPIA No. SCCRM-02-132 [2002] SASC 354 - SASC 2002 case summary — Zoe

Appeal against conviction - appellant charged with two counts of murder - appellant acquitted by jury on charges of murder but convicted on alternative charges of manslaughter - bodies of male deceased and female deceased found in apartment - appellant and a co-accused charged with murder, tried separately - prosecution case against appellant rested on appellant being present when deceased were shot - prosecution case that appellant party to arrangement with co-accused to kill or cause grievous bodily harm - appellant's evidence that he went to apartment with co-accused knowing that co-accused intended to threaten male deceased with gun to attempt to recover co-accused's mobile telephone, but that he did not expect co-accused to shoot deceased - evidence that appellant knew gun was or might be loaded - prosecution relied on transcripts of telephone conversations between appellant and co-accused recorded by listening device - trial Judge refused to allow defence counsel to inspect documents used to support application for grant of warrant or warrants for listening device and produced on subpoena - trial Judge directed jury as to bases upon which appellant might be convicted of murder, by being satisfied either that appellant fired fatal shots, or that appellant was part of joint enterprise to kill or cause grievous bodily harm, or that appellant was part of joint enterprise to threaten with loaded gun, or that, without any prior arrangement, appellant aided and abetted co-accused - trial Judge also directed jury as to bases upon which could convict appellant of manslaughter, either on basis of death resulting from unlawful and dangerous act, or on basis of criminal negligence, in both cases with emphasis on appellant being party to joint enterprise to threaten with gun which was or might have been loaded - whether Judge erred in refusing to grant leave to defence counsel to inspect documents - whether Judge erred in failing to direct jury as to possible defence under s 15A Criminal Law Consolidation Act - whether Judge erred in permitting prosecution to cross-examine appellant as to whether appellant had access to guns and as to whether appellant had lied about not having access to guns - whether Judge failed adequately to direct jury about manslaughter by unlawful and dangerous act - whether Judge failed adequately to direct jury about manslaughter by criminal negligence - particular emphasis on Judge's directions as to scope of common purpose or joint enterprise - whether any miscarriage of justice - appeal against conviction for manslaughter of male deceased dismissed, appeal against conviction for manslaughter of female deceased allowed.

[67]

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.

[73]

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):

[132]

"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."

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (173 paragraphs)

R v ZAPPIA No. SCCRM-02-132 [2002] SASC 354 (1 November 2002)

Parties

Legislation Cited (10)

Cases Cited (8)