Q. Mr Andrew, you said that you knew that Peter Kane had placed this plastic bag on Mr Tonks' head. Do you personally accept responsibility for that action even though it was not you who personally placed the bag there?
A. Yes I do."
It is an important point ladies and gentlemen. I don't think there is any other place where that question of responsibility is placed certainly in - it may have been - I think what I read is as much as was said about it - but it is an important point if counsel wish to - …"
(Emphasis added.)
36 We will come shortly to what then passed between the trial judge and counsel. First, we make the following observations about the foregoing directions. His Honour began by posing the question as to what was the act that caused the death of the deceased by suffocation. This opened up, as a question for the jury, whether the blow to the head and the immobilisation of the deceased - both of which were acts of the appellant himself - could be regarded as the cause of the deceased's death. His Honour linked that question with the appellant's evidence about responsibility.
37 The burden of this part of the summing up was this. Assuming in the appellant's favour that it was Kane who did the final act resulting in death, the appellant's acts or one of them - striking the deceased on the head and trussing up the deceased - might nonetheless be found to be the cause of death.
38 No other instruction was given concerning the way causation was to be resolved according to legal principles.
39 Immediately following the foregoing passage in the summing up, counsel for the appellant objected to what the trial judge had said about the view most favourable to the accused being that the act causing death was the act done by Kane of placing the bag over the deceased's head. Counsel said there was a fundamental distinction between placing the bag over the head and tying the bag around the neck. (He meant "taping".) This was in the presence of the jury. His Honour called on the crown prosecutor, who read part of the cross-examination of the appellant which we have quoted, being the passage where the appellant said he saw Kane put the bag over the deceased's head but that he did not see the bag being taped. His Honour resumed the summing up, saying that he was not suggesting that the evidence established that the appellant taped the bag in place or that the appellant saw that being done by Kane. This, however, did not alter the thrust of what his Honour had said about the way in which it was open to the jury to find that the appellant's own act or acts constituted the cause of suffocation and death.
40 His Honour then told the jury how they might find the appellant guilty as a principal in the second degree. This related to the appellant's potential responsibility for what Kane did. The passage in the summing up is as follows (summing up 55-59):
"What I am saying to you is that, irrefutably, it is evidence out of his own mouth that he saw the bag being pulled over the head, and for myself I don't know how one could put the facts in a way more favourable to him than that, in other words than by limiting his knowledge to knowledge of the fact that the bag was being pulled over this man's head by Peter Kane and nothing more. That is what I meant when I said one can take a view most favourable to him by saying that his only knowledge of the bagging of Mr Tonks' head was as seen as he admits he did see his friend Peter Kane actually pulling it over him.
There is more. You were asked to bear in mind that there is a difference, as there most certainly is, between what one might call, in ordinary English expression, moral responsibility for an act and criminal culpability for the same act. Let there be no mistake about it. There is a complete dichotomy between those two notions.
Well, what I am about to put to you in connection with this third question has nothing to do with moral responsibility, it has to do with the view that the law takes of facts as I have sketched them for you; in other words, the view that the law takes of a situation in which one person pulls the bag over the head of the deceased man and the other does not pull the bag over or do anything else with the bag, but sees that the other is doing the pulling. That's the situation to which I'm addressing what follows.
Beyond any question, you might think - although it is a question for you only of course - these two young men went to the unit by prior arrangement. Nobody suggests otherwise. You might think, but it is a matter for you, that part of the prior arrangement, on the view most favourable to the accused, was that the accused was going, as he, himself, put it, verbally to abuse the deceased man; but that if it became necessary to protect himself, he was prepared, as he put it, to hit him, and for that purpose took the mini bat with him, baseball bat with him. What happened in the unit, you might think, was something that involved, from first to last, the two young men who had gone in company for that very purpose of confronting - I don't say of killing - of confronting verbally, to say the very least, the dead man.
If two people go on such an errand and one of them pulls a plastic bag over the head of a man in the condition of Mr Tonks, as the evidence undisputed, describes that condition, then obviously the person who does the pulling is what the law calls "a principal in the first degree". He is, that is to say, the person who actually does the act. If the act brings about the death of the person to whom it is done, he, the principal in the first degree, is exactly that, he is the person primarily liable for the consequences of what he did.
But his friend who is there when he does it, who sees what he is doing, who has an opportunity to intervene and to stop what is going on and who elects not to do that, is what the law calls "a principal in the second degree"; that is to say, although he does not do the primary act himself, he knows it is being done and he gives, either expressly or by implication from the way in which he speaks and acts, assent and encouragement to what is being done. In that event, he is as liable as the person who actually pulled the plastic bag onto the head of the man. It isn't a question of fine philosophical distinction based on the loose concept of moral responsibility, it's a straight question of law. In such a situation as I have described, both are liable: The one because he did the act; the other because his behaviour was of such a character as to lend assent and support and encouragement to what was being done.
Now, those are directions of law, and it is for you to apply them to the facts as you find them.
One fact that you might think you could find without any difficulty at all, but it is a matter for you, is that, in fact, Peter Kane pulled the bag over the head of Mr Tonks as he lay on the ground and in the condition that has been described to you earlier this afternoon. Another fact that you might think you can find, for it is a fact established clearly out of the mouth of the accused himself, is that he saw the bag being pulled over the head of the deceased man. He says it in plain terms in the passages that I have read to you.
As I understand the evidence, and I'll be corrected if I am mistaken, - and if I am mistaken I will administer the necessary correction to you, - the evidence does not suggest impediment to the accused of having been able, had he wished to do it, to protest to Peter Kane. You might think that, but it's a matter for you, they were standing fairly close together in what I described this morning as an average size living room and an average size dining area in an average kind of suburban unit block. Do you think that on the evidence such as it is, it is fair to find that the accused saw what Peter Kane was doing and was content to let him do it; at least to the extent of pulling the bag over the man's head?
I say again, that assumes in his favour that he is to be believed when he says that he did not see Peter Kane tape up the bag. I say nothing about that, except to remind you that that is an issue of fact that you must resolve.
The accused has given you sworn evidence to the effect that he did not, at any time, see Peter Kane tape up the neck of the bag. He has given sworn evidence to the effect that he did not ever see before he left the unit that, in fact, such tape had been applied to the neck of the bag. It is a matter for you as to whether or not you believe that version of events that the accused has given you. And I say nothing about that, for it is a question for you and not for me. If you don't believe him, then the principles of law, as I have explained them to you, cut in, if I may put it that way, in a much more sharp and precise way.
But if you do believe him, if you are prepared to give him the benefit of any doubt that you might have as to whether or not he saw the tape put in position, there is no denying, on his own version, that he saw the bag put on; and if you think that it's fair to assume that he implicitly assented to that happening, then I tell you as a matter of law he is as guilty of the consequences and as responsible for the consequences as if he had been the person who had primarily put the bag in position."
(Emphasis added.)
41 The only acts mentioned in this passage were those of Kane, the bag over the head and the taping of the bag. That is to be expected. The passage had, as its central objective, a direction to the jury as to how the appellant might be held liable in law for acts done by Kane. There was no implied withdrawal, therefore of the earlier direction that the appellant's own acts - the blow to the head and the trussing up - were in the ring for consideration, along with Kane's acts, as the cause of death.
42 We need not stop to examine the directions given by the trial judge concerning the legal test for liability of a secondary party as a principal in the second degree. No criticism was made of his Honour's directions in that regard either at the trial or on appeal.