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[2016] WASCA 210
Court of Appeal (WA)
2016-11-30
Mr J, Buss P, Mazza JA, Mitchell JA, Jenkins J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : TAYLOR -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 210
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Criminal law - Appeals against conviction - Appellants convicted after trial of murder - Section 7 of the Criminal Code (WA) - Whether the trial judge misdirected the jury in relation to enabling or aiding another person to commit an offence - Section 8 of the Code - Whether the trial judge misdirected the jury in relation to the alleged common intention of the appellants - Whether the trial judge otherwise misdirected the jury about the possible criminal liability of the appellants pursuant to s 8 of the Code - Whether the trial judge misdirected the jury in relation to a process of reasoning by which they may determine how the deceased suffered the fatal injuries Whether the trial judge misdirected the jury in relation to the required intention for murder at the time the deceased was first physically assaulted - Whether a miscarriage of justice was occasioned by the manner in which defence counsel for one of the appellants crossexamined a State witness
Criminal law - Appeal against sentence - Each appellant sentenced to life imprisonment with a minimum nonparole period of 21 years - Whether the minimum term for one of the appellants was manifestly excessive
Respondent : Mr J A Scholz - 16 March 2016 & 6 April 2016
Respondent : Mr J A Scholz - 16 March 2016 & 6 April 2016
Respondent : Mr J A Scholz - 16 March 2016 & 6 April 2016
Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662
Angliss v The State of Western Australia [2015] WASCA 8
Atherden v The State of Western Australia [2010] WASCA 33
Austic v The State of Western Australia [2010] WASCA 110
Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92
Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338
BG v The State of Western Australia [2005] WASCA 45; (2005) 152 A Crim R 207
Bomford v The State of Western Australia [2014] WASCA 43
Bowman v The State of Western Australia [2008] WASCA 63
Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
Butler v The State of Western Australia [2010] WASCA 104
Cockram v The State of Western Australia [2011] WASCA 179
Corbett v The State of Western Australia [2016] WASCA 97
Crossland v The State of Western Australia [2016] WASCA 93
Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373
Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
Gillard v The Queen [2003] HCA 64; (2003) 219 CLR 1
Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328
Johnston v The State of Western Australia [2012] WASCA 18
Khan v The State of Western Australia [2013] WASCA 193
KLM v The State of Western Australia [2009] WASCA 73; (2009) 194 A Crim R 503
L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Mack v The State of Western Australia [2014] WASCA 207
McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108
McMahon v The State of Western Australia [2010] WASCA 143
Miller v The Queen [2016] HCA 30; (2016) 90 ALJR 918
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
O (a child) v The Queen (Unreported, WASCA, Library No 970219, 9 April 1997)
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
Pedersen v The State of Western Australia [2010] WASCA 175
Petersen v The State of Western Australia [2016] WASCA 66; (2016) 50 WAR 45
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
Prestidge v The State of Western Australia [2014] WASCA 16
R v Barlow [1997] HCA 19; (1997) 188 CLR 1
R v Beck [1990] 1 Qd R 30
R v Birks (1990) 19 NSWLR 677
R v Bosworth [2007] SASC 150; (2007) 97 SASR 502
R v Jeffrey [2003] 2 Qd R 306
R v Keenan [2009] HCA 1; (2009) 236 CLR 397
R v Pascoe (Unreported, QCA, Library 242 of 1997, 19 December 1997)
R v Roberts [2012] QCA 82
R v Solomon [1959] Qd R 123
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
Reeves v The Queen [2013] HCA 57; (2013) 88 ALJR 215
Ritchie v The State of Western Australia [2016] WASCA 134
Rosewood v The State of Western Australia [2014] WASCA 21
Scafetta v The State of Western Australia [2010] WASCA 209
Silva v The State of Western Australia [2013] WASCA 278
Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115
Steve v The Queen [2008] NSWCCA 231; (2008) 189 A Crim R 68
Stinson v The State of Western Australia [2014] WASCA 72
The State of Western Australia v Churchill [2015] WASCA 257
The State of Western Australia v Lee [2013] WASCA 246
The State of Western Australia v O'Kane [2011] WASCA 24
The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285
The State of Western Australia v Smith [2015] WASCA 87
The State of Western Australia v Taylor [2015] WASCSR 71
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91
Zwerus v The State of Western Australia [2015] WASCA 174
1 BUSS P: Mark Patrick Taylor (Mr Taylor) and Daniel Wade Jones (Mr Jones) were charged on indictment that on 17 November 2013 at Middle Swan they murdered Warren Gerard Batchelor, contrary to s 279 of the Criminal Code (WA) (the Code).
2 On 27 March 2015, after a trial in the Supreme Court before Jenkins J and a jury, Mr Taylor and Mr Jones were found guilty as charged. On 17 April 2015, each of them was sentenced to life imprisonment with a minimum non-parole period of 21 years: The State of Western Australia v Taylor [2015] WASCSR 71.
3 Mr Taylor and Mr Jones have appealed against conviction. Mr Jones has also appealed against sentence. Mr Taylor and Mr Jones were represented by counsel in their appeals against conviction. Mr Jones was self-represented in his appeal against sentence.
4 I would dismiss each of the appeals. My reasons are as follows.
5 An overview of the State's case at trial is as follows.
6 Mr Batchelor died in Royal Perth Hospital on 19 November 2013 as a result of head injuries that he suffered in the early hours of 17 November 2013. The injuries were inflicted in a toilet block at the Middle Swan reserve (the reserve). The reserve is a recreational area on the bank of the Swan River. There are a number of carparks in the reserve. People camp at the reserve, from time to time, overnight or for short periods. The reserve has barbecue facilities.
7 The toilet block comprises male and female toilets. The male toilet is used occasionally by some men as a place for consensual casual sex with other men.
8 In the days leading up to 17 November 2013, Mr Taylor and Mr Jones were camping at the reserve. Mr Jones had arrived in his utility, with a trailer attached, about three days earlier. Mr Taylor and his four young children had arrived about two days earlier and were staying in a caravan which had been towed there by the children's mother (ts 126). Mr Taylor and Mr Jones, who were previously unknown to each other, became acquainted while they camped at the reserve. They objected to the behaviour that was occurring in the male toilets and other conduct in the carparks.
9 Mr Batchelor was, at the time, aged 48. At about 1.30 am on 17 November 2013, he parked his Honda Jazz sedan in a carpark near the toilet block at the reserve. He then walked into the male disabled toilet cubicle. Another man, Mr Y, alighted from his car, which was also parked in the carpark near the toilet block. He walked into the male toilets and entered the cubicle occupied by Mr Batchelor. Mr Y locked the cubicle door and, after a short conversation, the two men agreed to engage in sexual activity (ts 126).
10 Shortly afterwards, Mr Y heard a knock on the cubicle door and a male voice shouting. Neither Mr Batchelor nor Mr Y opened the door but, about 10 to 15 seconds later, Mr Taylor kicked open the door. Mr Taylor entered the toilet cubicle. He looked at Mr Batchelor who was, at that stage, on his knees about to perform oral sex on Mr Y. Mr Taylor told him to get up. Mr Batchelor got to his feet and was punched forcefully in the head by Mr Taylor. Mr Batchelor fell to the floor. He was unconscious.
11 Mr Taylor shouted angrily at the two men in the toilet cubicle. He called them 'faggots', and said something about his children. Mr Taylor kicked and punched Mr Batchelor, who was lying unconscious on the ground, with great force (ts 126).
12 Mr Jones went to the toilet block with Mr Taylor. Mr Jones was armed with a metal pole. Initially, he stood at the cubicle door to prevent the occupants from leaving. However, he entered the cubicle after Mr Taylor had punched Mr Batchelor. Mr Jones walked to where Mr Batchelor was lying on the floor and, with great force, struck him to the head several times with the pole. The sound of the pole hitting Mr Batchelor and, perhaps, hitting the floor could be heard some distance away.
13 After assaulting Mr Batchelor, Mr Taylor turned his attention to Mr Y and punched him to the face 'a couple of times' (ts 127). Mr Taylor produced a large knife and threatened Mr Y with it. Mr Jones hit Mr Y with the metal pole, aiming for his head. Mr Y put up his arms to protect his head and was struck several times on his forearm. As this occurred, Mr Batchelor remained motionless on the floor.
14 Mr Y, fearing for his life, ran at Mr Taylor and Mr Jones who were standing together, effectively blocking the exit from the toilet cubicle. Mr Y managed to push his way past them. He then ran from the toilet block towards his car. Mr Taylor, who was brandishing the knife, chased Mr Y and threatened him. Mr Y got into his car. Another man (LG), who was a friend of Mr Y, was also in the car. Mr Y drove from the carpark quickly, as did a number of other vehicles (ts 127). The following day, Mr Y went to a doctor, who observed swelling on Mr Y's arm (ts 161).
15 Mr Taylor returned to the toilet block. He met with Mr Jones. A witness, Maria Zinni, heard Mr Taylor say, apparently to Mr Jones, words to the effect of 'Are you right?' (ts 157). Mr Taylor and Mr Jones returned to the place where they were camping, without seeking medical treatment for Mr Batchelor.
16 The prosecutor said the State's case as to the identity of the offenders and that they were together at the relevant time was supported by Brenda Bentley. Ms Bentley and her husband had been camping at the reserve for some time prior to 17 November 2013. She became acquainted with Mr Taylor and Mr Jones, whom she knew as 'Tayls' and 'Dan' respectively. She saw Mr Taylor emerge from the toilet block brandishing a knife, pursuing Mr Y and threatening him (ts 149). Ms Bentley heard Mr Taylor say words to the effect, 'Are you right?' and 'Let's go', after which she saw Mr Jones emerge from the toilet block (ts 149). She said the two men left the building together (ts 149). Later, Ms Bentley identified Mr Taylor and Mr Jones during a digiboard identification process conducted by the police.
17 Mr Batchelor regained consciousness for a short time. He managed to walk from the toilet block to his vehicle, where he collapsed. Police and emergency services were called. Mr Batchelor was taken to Royal Perth Hospital where he underwent emergency surgery for his head injuries. However, as I have mentioned, on 19 November 2013 he died from those injuries.
18 Mr Taylor and Mr Jones were placed under police observation. A police officer heard a splashing sound as if something had been thrown into the Swan River. Police officers arrested Mr Taylor and Mr Jones shortly afterwards. Each was interviewed by the police.
19 Later, when a search of the river was undertaken, a butcher's knife was discovered 30 m from the riverbank. On the State's case, this was the knife carried and brandished by Mr Taylor.
20 The metal pole used by Mr Jones to attack Mr Batchelor and Mr Y was not found by the police.
21 On 17 November 2013, Mr Jones was interviewed. He told the police that he had been staying at the reserve and that he had come to know Mr Taylor. He denied any involvement in any incident at the toilet block. Specifically, he denied ever going to the toilet block with Mr Taylor or at all around the time of the incident. He denied having participated in any assault on the night in question.
22 Mr Taylor was also interviewed on 17 November 2013. He denied any involvement in the alleged offence. He told the police that he had not noticed anything unusual and that he had not heard any noises that night.
23 On 21 January 2014, while he was a remand prisoner, Mr Taylor requested a second interview with the police. In the second interview, he said there had been people near his caravan who had scared him and his children. Someone had been doing 'burn-outs' at the reserve. Mr Taylor told the police that, on the night in question, he locked his children in the caravan, grabbed his knife, put it down the back of his shorts and walked to the toilet block, intending to warn the people who were there to stay away from his caravan. He saw a couple of the people who had been harassing his family enter the toilet block. Mr Taylor went in and kicked the toilet door open and said, 'Just stay away from my kids. I'm sick of this shit'. A fight started in which he and another man traded punches. The other man ran from the toilet block and, at that point, he pulled out his knife and told him to stay away from his children. Mr Taylor returned to the toilet block where he saw a man standing there and another man (Mr Batchelor) on the ground. Mr Taylor said he went over to the man on the ground, who appeared to have been knocked out. He did not see any blood. Mr Taylor declined to identify the man who was standing there. When asked by the police who else was with him when he went to the toilet block, Mr Taylor replied, 'I don't wish to say' (VROI 43). Apart from giving the man on the ground 'a bit of a slap', apparently to rouse him, he did not give any assistance to the man.
24 Based on the evidence of Ms Bentley, the State's case was that Mr Jones' denials that he had gone to the toilet block with Mr Taylor or at all on the night in question were false. The State alleged that Mr Jones had lied because he knew the truth would implicate him in what had happened to Mr Batchelor (ts 166).
25 The State's case was that Mr Taylor had lied in his first interview when he denied any knowledge of what had happened at the toilet block. The State alleged that Mr Taylor had also lied in his second interview, specifically when he said that he did not see any blood in the toilet cubicle. According to the State, Mr Taylor lied in his interviews because he knew the truth would implicate him in what had happened to Mr Batchelor (ts 166).
26 A post-mortem examination was conducted. A significant gash to the top of Mr Batchelor's head, which had obviously bled, was observed. Dr Daniel Moss, the forensic pathologist who conducted the autopsy, found that Mr Batchelor had suffered a fractured skull. He noticed bleeding within the skull, which had resulted in a large clot that had pushed the brain sideways and downwards, and compromised his vital functions. Dr Moss also noticed that, as a result of the trauma he had suffered, Mr Batchelor's brain was swollen. Dr Moss concluded that the cause of Mr Batchelor's death was complications arising from a head injury (ts 132).
27 The State's case was that each of Mr Taylor and Mr Jones acted as vigilantes on the night in question. Each was a principal offender; that is, each actually inflicted blows to Mr Batchelor which resulted in the head injuries that caused his death: s 7(a) of the Code. Alternatively, each enabled or aided the other to commit or in committing the offence: s 7(b) or s 7(c) of the Code. Alternatively, Mr Taylor and Mr Jones were liable, pursuant to s 8 of the Code, on the basis that they had a common intention to prosecute an unlawful purpose, namely to assault the occupants of the toilet cubicle using weapons, and that murder was a probable consequence of the prosecution of that unlawful purpose (ts 174 - 175).
28 The only eyewitness to the assault on Mr Batchelor was Mr Y. He testified at some length at the trial. The State also called evidence from a number of people who were at the reserve when the offence was committed, including Ms Bentley, Ms Zinni and LG. Two of Mr Taylor's children gave evidence. The State adduced evidence from a number of police officers who attended the scene, including forensic officers, one of whom gave expert blood spatter evidence. The State also called evidence from Dr Moss, Dr Victoria Fabian, a neuropathologist, and Mr Y's doctor.
Formal admissions made by Mr Taylor and Mr Jones
29 Mr Taylor and Mr Jones each made admissions pursuant to s 32 of the Evidence Act 1906 (WA) to the effect that Mr Batchelor died on 19 November 2013 and that his death was caused by a head injury he sustained at the reserve on 17 November 2013.
30 Mr Taylor's case, as opened by his counsel at trial, was as follows.
31 Mr Jones alone was criminally responsible for Mr Batchelor's death (ts 176). Mr Taylor and Mr Jones did not form a joint plan to do anything to Mr Batchelor and, although Mr Taylor went to the toilet block, he did not go there with Mr Jones.
32 Mr Taylor went to the toilet block alone to try and drive away the men who had been scaring him and his children. Before going to the toilet block, he told Mr Jones to stay with his children.
33 Mr Taylor kicked open the door to the toilet cubicle and shouted at Mr Batchelor and Mr Y. He did not kick open the door to aid Mr Jones. Mr Taylor did not assault Mr Batchelor. After he kicked open the door and shouted at the two men, Mr Y rushed at him, throwing punches. Mr Taylor returned the punches, but Mr Y was able to get past him and leave the cubicle. It was at this point that Mr Taylor became aware that Mr Jones was also in the toilet block. As Mr Y ran past Mr Jones, Mr Taylor saw Mr Jones strike Mr Y with an object (ts 182).
34 Mr Taylor pursued Mr Y. During the pursuit, Mr Taylor produced a knife from his pants and shouted at Mr Y, with the intention of persuading him and others to leave the carpark. Mr Y left the carpark in his vehicle. Some other cars also left (ts 182). Meanwhile, Mr Jones, who was armed with a hard and heavy weapon, had remained in the toilet cubicle with Mr Batchelor.
35 Eventually, Mr Taylor returned to the toilet cubicle and saw Mr Batchelor lying on the ground. He heard Mr Batchelor 'snoring' and thought he had been 'simply knocked out' (ts 183). The toilet cubicle was dark and Mr Taylor did not see any blood. Mr Taylor asked Mr Batchelor if he was all right and nudged him. Mr Batchelor did not respond.
36 Mr Taylor then left the toilet block. Later, he met with Mr Jones. After having a conversation, Mr Taylor threw the knife he had carried into the Swan River.
37 It was conceded by defence counsel, in his opening address, that Mr Taylor had lied in his first interview with the police by denying any knowledge of the offence. Counsel asserted that Mr Taylor did so, not because the truth implicated him, but because Mr Taylor was 'naïve' and 'dishonest' (ts 184). It was said on Mr Taylor's behalf that in his second interview Mr Taylor attempted 'to set the record straight' (ts 184). Defence counsel explained that Mr Taylor's reluctance in the second interview to name the second man at the toilet block was because he did not want to be labelled a 'dog' in prison, but that person was, in fact, Mr Jones (ts 185).
39 Mr Jones' trial counsel made a very brief opening address to the effect that, apart from using the toilet for about 30 seconds, Mr Jones did not assault anyone inside or outside the toilet block on the night in question (ts 187 - 188).
40 Mr Jones did not give sworn evidence at the trial.
The organisation of the balance of these reasons
41 It is convenient, first, to consider Mr Taylor's appeal against conviction, then Mr Jones' appeal against conviction and, finally, Mr Jones' appeal against sentence.
Mr Taylor's appeal against conviction: the grounds of appeal
42 Mr Taylor's grounds of appeal were amended, with leave, after the hearing of the appeal. The court ordered counsel for Mr Taylor and counsel for the State to file and serve written submissions on the amended grounds. That was done.
43 Ultimately, Mr Taylor relied on four grounds of appeal.
44 Ground 1, as developed in oral submissions at the hearing, alleges in essence that the trial judge made a wrong decision on a question of law, or a miscarriage of justice was occasioned, 'when, in relation to [Mr Taylor's] culpability for murder pursuant to [s 7 of the Code]', her Honour failed adequately to direct the jury's attention to 'the intent of the aider rather than the aider's knowledge of the intention of the principal offender'.
45 Ground 2 alleges that there was a miscarriage of justice 'when, in relation to [s 8 of the Code]', her Honour failed adequately to direct the jury that '[Mr Taylor's] culpability was confined to the common intention of the offenders, namely an intention to use violence, including weapons, against the persons who were inside the toilet cubicle ... and not an intent subsequently formed by the co-accused' (original emphasis).
46 Ground 3 alleges that her Honour made a wrong decision on a question of law, or a miscarriage of justice occurred, 'when the jury was asked to consider whether the location of the injuries to the deceased's skull would have been caused when the deceased fell to the ground and hit his head or whether the injuries are on a place on the deceased's head where it is more likely they would have been caused when a blow was delivered directly to that area'.
47 Ground 4 alleges that a miscarriage of justice occurred because 'the jury [was] not directed that before convicting [Mr Taylor] of murder they had to be satisfied beyond reasonable doubt that, at the time the deceased was first physically assaulted, [Mr Taylor] had the intention required by s 279(1)(a) or (b) of [the Code], or was aiding Mr Jones with knowledge that [Mr Jones] had that intention'.
48 On 6 June 2015, Mazza JA granted leave to appeal on ground 1. Leave to appeal has not yet been granted on any of the other grounds.
50 Section 7 lists four categories of parties to an offence. A person who is within one or other of the categories is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it.
51 Section 7 provides, relevantly:
When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say -
(a) Every person who actually does the act or makes the omission which constitutes the offence;
(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c) Every person who aids another person in committing the offence;
(d) Any person who counsels or procures any other person to commit the offence.
52 Section 7(b) operates to make a person liable if he or she does any act or makes any omission for the purpose of enabling or aiding another person to commit the offence.
53 Similarly, s 7(c) makes a person criminally liable if the person aids another person in committing the offence.
54 In R v Solomon [1959] Qd R 123, Philp J (Mansfield CJ agreeing) analysed the Queensland counterpart of s 7(c):
Reading s 7 (c) with s 23 it is apparent that if A aids B in B's commission of the offence of robbery A is criminally responsible for the robbery but if he does not willingly aid him in the commission of a homicide done in course of the robbery A is not criminally responsible for the homicide.
Quite apart from s 23 how can A be said to aid B in the commission of an offence unless he consciously aids him in the doing of the act which constitutes the offence? See Russell on Crimes and Misdemeanours, 11th ed, p 156.
It will be noticed that s 7(c) does not repeat the verbiage of s 7(a); it does not create criminal responsibility in a person who aids in doing the act which constitutes the offence - the responsibility attaches only to a person who aids in the commission of the offence. That suggests that to be responsible under s 7(c) the aider must know what offence is being committed or at least what offence might be committed by the person he is aiding.
Section 23 makes it plain that if B does an act which is done independently of the will of A the latter cannot be criminally responsible for that act. Similarly under s 7(d) - if A counsels or procures B to commit an offence A is liable only for the actual offence he has consciously counselled or procured (128). (original emphasis)
55 In R v Beck [1990] 1 Qd R 30, Macrossan CJ (McPherson J agreeing) noted that the intention involved in the criminal activity referred to in the Queensland counterpart of s 7(b) emerges from the use of the phrase 'act for the purpose of ... '. His Honour also noted that similar express words are absent from the Queensland counterpart of s 7(c), but, as Philp J observed in Solomon (128), it is hardly possible to aid the commission of an offence without awareness of the offence which is (or might be) committed (37 - 38).
56 In O (a child) v The Queen (Unreported, WASCA, Library No 970219, 9 April 1997), Malcolm CJ (Kennedy & Franklyn JJ agreeing) said:
Mere presence at the commission of an offence will not of itself be sufficient to constitute aiding. There must be, at least, a positive encouragement: R v Corey [1882] 8 QBD 53. In R v Clarkson, Carroll and Dodd [1971] WLR 1402 it was held that on a charge of aiding and abetting a rape on the basis of continuing and non-accidental presence, the prosecution must establish actual encouragement of the commission of the offence, as well as an intention to encourage. In R v Beck, above, at 38 [Macrossan CJ] said:
'It is not possible to be an aider through an act which unwittingly provides some assistance to the offender in the commission of the offence and it is not possible to be an aider, whatever the intention, unless support for the commission of the offence is actually provided.'
[Macrossan CJ] however acknowledged that voluntary and deliberate presence during the commission of a crime without opposition or real dissent may be evidence of wilful encouragement or aiding. Intentional encouragement may also be inferred from expressions, gestures or actions intended to signify approval: Beck, at 37 (7).
See also BG v The State of Western Australia [2005] WASCA 45; (2005) 152 A Crim R 207 [62] (Malcolm CJ; EM Heenan & Simmonds JJ agreeing).
57 In R v Jeffrey [2003] 2 Qd R 306, McPherson JA made these comments about the Queensland counterparts of s 7(b) and s 7(c):
As regards both s 7(1)(b) and s 7(1)(c) of the Code, it is settled that the accused is criminally responsible only if, in giving aid or assistance, he knows that the offence is being committed or is intended: see R v Beck [1990] 1 Qd R 30, 38; R v Jervis [1993] 1 Qd R 643, 647 - 648; which means that it must be proved that he knows the essential facts constituting or making up the offence that is being or about to be committed by the person he is aiding or assisting. See Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473. The requisite state of mind which had to be established against the appellant to make him criminally responsible under s 7(1)(c) was that he knew that one or more of the others was intending to kill or to do grievous bodily harm.
... In relying on s 7(1)(b) or s 7(1)(c) to establish the guilt of a person as a secondary offender, it is not incumbent on the prosecution to prove that any act on the part of that person caused the death or even significantly contributed to it, or to prove on the part of that person a specific intention to kill or do grievous bodily harm to the victim. Proof of those matters would tend to show that that person was not merely a secondary offender under s 7(1)(b) or s 7(1)(c), but the actual perpetrator of the offence under s 7(1)(a). In the prosecution case against the secondary offender, the prosecution is, of course, bound to prove all the elements of the principal offence to which the secondary offender is alleged to have been a party; but, when that is done, all that is necessary to establish the criminal responsibility of such an offender is that, with the requisite knowledge or state of mind, he did an act for the purpose of aiding or assisting another person or persons to commit that offence (310 - 311).
See also R v Pascoe (Unreported, QCA, Library 242 of 1997, 19 December 1997), 4 - 5 (McPherson JA).
(a) a person or persons (the principal) has or have committed the offence;
(b) the person alleged to be the aider had actual knowledge of the facts amounting to the offence committed by the principal (that is, actual knowledge of the essential facts constituting the offence that was being or about to be committed or might be committed by the principal);
(c) the aider did or omitted to do something with the intention of aiding or assisting in the doing of the acts which constitute the offence; and
(d) what the aider did or omitted to do actually aided or assisted the principal to commit or in committing the offence.
See Scafetta v The State of Western Australia [2010] WASCA 209 [12] (McLure P; Buss JA & Mazza J agreeing); Bomford v The State of Western Australia [2014] WASCA 43 [63] (Mazza JA; Buss JA & Hall J relevantly agreeing); Ritchie v The State of Western Australia [2016] WASCA 134 [84] (McLure P; Buss JA relevantly agreeing generally & Mazza JA relevantly agreeing).
59 A person will do or omit to do something, with the intention of aiding or assisting in the doing of the acts which constitute the offence, if the person's acts or omissions were willed and the person's purpose in doing the act or making the omission was to aid or assist in the doing of the acts which constitute the offence.
Mr Taylor's appeal against conviction: ground 1: the trial judge's summing up
(a) The State's case under s 7 of the Code was that one of the accused (that is, either Mr Taylor or Mr Jones) caused Mr Batchelor's death by inflicting a blow or blows that fractured his skull, and the other accused aided him to do so (ts 1167, 1173, 1204).
(b) The State's case was that both of the accused 'went together to the toilet block to jointly or together seriously assault the persons in there, and that they were armed, and that they each knew they were armed, and [that] they each knew that those weapons would or could be used in the process of that assault' (ts 1204).
(c) The State 'cannot say for sure that it was Mr Jones as opposed to Mr Taylor who inflicted the fatal injury, and that is because of the medical evidence' (ts 1173).
(d) Dr Moss' evidence was that 'a metal pipe could cause the fatal injuries on Mr Batchelor, that a punch with a fist would be extremely unlikely to cause the degree of injury in this case, but that if a person was punched and the impact caused that person to fall over and hit their head on the floor, the hitting of the head on the floor might cause the head injury, and that it was possible that kicking could cause the fatal head injuries, depending upon the footwear and also whether the deceased's head was supported at the time' (ts 1173 - 1174). Dr Moss said 'it was difficult to say and, in his experience, it was not as likely as a more solid object, but it was possible' (ts 1174).
(e) The State's position was that 'it is more likely, and that it is open for you to decide, that it was Mr Jones who inflicted the fatal injuries, and that Mr Taylor aided him to do so, but that it would also be open to you, on the evidence, to find that Mr Taylor had done so, that is, inflicted the fatal injuries, and Mr Jones had aided him to do so' (ts 1174, 1204).
(f) The State said that, in the end, it did not matter whether it was Mr Taylor or Mr Jones who inflicted the fatal blows because 'they both intended that, at the very least, life endangering injuries would be caused; that is, they intended to cause bodily harm and that, objectively speaking, that bodily harm was likely to endanger Mr Batchelor's life' (ts 1204).
(g) Mr Taylor's case was that 'he did not touch Mr Batchelor at all' (ts 1168). Mr Taylor had 'no idea ... that Mr Jones was going to come into the toilet cubicle and assault Mr Batchelor' (ts 1168). Mr Taylor did not aid Mr Jones (or any other person) to inflict a blow or blows on Mr Batchelor (ts 1168). Mr Taylor's case was, 'quite simply, he [did not] touch Mr Batchelor and he is not liable in any way for his death and he did not agree with anybody that an assault on Mr Batchelor or anyone in the toilet cubicles would take place' (ts 1174).
(h) Mr Jones' case was that the State had not proved that he was present in the toilet cubicle when Mr Batchelor received his fatal injuries and, accordingly, the State had not proved that Mr Jones killed Mr Batchelor 'by his own acts or that he aided another to do so' (ts 1168). Mr Jones did not dispute that two men attacked Mr Batchelor, but he denied that he was one of them (ts 1205). Mr Jones said that 'there is no description from [Mr Y] that would identify him as an offender, and he says that the evidence of Ms Bentley is unreliable and you cannot rely upon it' (ts 1205).
61 Her Honour told the jury that the State may prove that an accused murdered Mr Batchelor by one of the following alternatives. First, by proving that the accused 'actually did the acts which caused [Mr Batchelor's] death' and that the accused did those acts 'with an intent to kill or cause a serious injury to Mr Batchelor' (ts 1166). Secondly, by proving that the accused 'aided the person who did the acts which killed Mr Batchelor' (ts 1166). Thirdly, by proving that the murder was committed in the prosecution of 'an unlawful common purpose to which [the] accused was a party' (ts 1166).
62 The trial judge directed the jury, in essence, that in order to prove that an accused aided another (which, on the evidence, could only be Mr Taylor or Mr Jones) to murder Mr Batchelor, the State must prove three elements:
(a) first, that the accused 'aided another person' to do the acts which killed Mr Batchelor;
(c) thirdly, that the accused 'knew that the person he was aiding', intended 'either ... to cause Mr Batchelor's death or intended to cause [him] a bodily injury of such a nature as to endanger or be likely to endanger [his] life' (ts 1166).
63 Her Honour also gave this direction on 'aiding':
If you're considering the case against an [accused] who you think aided in the killing of Mr Batchelor, you will be considering whether that accused aided the person who caused the death, knowing that the person who caused the death, either intended to cause Mr Batchelor's death or intended to cause a bodily injury of such a nature as to endanger or be likely to endanger the life of Mr Batchelor (ts 1169).
64 Later in her summing up, the trial judge developed her direction in relation to 'aiding' as follows:
The alternative State case against each accused is that he assisted or aided that person to murder Mr Batchelor.
It is the law that when a criminal offence is committed any person who actually does the acts which constitute the offence is guilty of it, and the law also provides that any person who has aided another person in committing the offence is deemed to have taken part in the committing of the offence, and is guilty of it.
If a person aids someone to commit murder or, indeed, manslaughter, he is just as guilty of that offence as the person whom he assisted, and who actually did the physical acts which constitute the offence. So what does it mean to aid in the commission of a criminal offence? Before an accused may be found guilty in the capacity as an aider, the State must satisfy you of two things.
First, it must satisfy you that the accused you are considering knew what offence was being committed by the person he aided in the sense that he had actual knowledge of all the essential facts which make the act done an offence as opposed, merely, to a suspicion that those facts existed. That ... knowledge might be inferred from proof of the accused's exposure to the obvious.
It's not necessary that the accused had actual knowledge that the person who he's aiding is going to hit the victim on the head first and then on the arm. That kind of detailed knowledge is not required to be proved but you must be satisfied that he did have knowledge of all the sort of essential facts which make the act done an offence.
So he must know that a serious assault, in the case of murder which is done with intent to kill or cause a life endangering injury, is being committed before he can be found guilty as an aider.
Secondly, the State must satisfy you that the accused you are considering gave actual assistance to the commission of the offence. For a person to be an aider, there must be some deliberate active step by word or action which assists or encourages the commission of the offence. Mere presence at the commission of an offence does not of itself amount to aiding. It's not enough for the State to show that the accused you are considering knew what was going on but did nothing to stop it.
A person who's merely a passive spectator of a crime and does not take any part in it or does not interfere to prevent it does not commit an offence in the capacity as an aider. It may be reprehensible for a person to stand and watch while others commit an offence but to do so is not itself a criminal offence.
Before you're entitled to convict an accused in the capacity as an aider, it must be shown by the State not only that the accused knew the offence was being committed or may be committed, but that he actually aided, that is, gave actual assistance to the commission of the offence.
Can I provide a couple of examples to illustrate these points? First, if a person who knows that a robbery is taking place drives the getaway car for the robbers, that person is an aider. He is equally as guilty as the others who actually carry out the robbery.
If a person stands outside a building or waits outside or near a building and the purpose of him standing there, he knows, is to give warning to another who he knows is in the building in order to steal, then his actions would amount to assistance and he would be an aider to the offence and guilty of stealing.
In both those two examples, the requirements of both knowledge of the offence and actual assistance are satisfied. However, you can distinguish those examples from one where you're walking down Hay Street and you see a bank hold up take place. The fact that you stand by and watch the hold up doesn't make you an aider to it. In such an example, the first requirement of knowledge is satisfied. You know what's taking place but you give no actual assistance.
Now, another example, suppose you walk into a bank and a person you see is in a hurry to leave the bank and they drop their bag. You pick it up, you hold the door open for them to enable them to leave quickly.
If it turns out that the person you helped is a bank robber, you would not be guilty of robbery because although you provided actual assistance to them, you helped them leave, you did not do that knowing that they were going to commit an armed robbery, so the requirement of knowledge in that example is not met.
Now, the State says that these two accused aided one another to commit the offence of murder or in the alternative, manslaughter. The State says that they went to the toilet cubicle in company with each other intending to assist one another by having another person there to provide help if required, that Mr Taylor assisted in the assault by initially kicking the door in and that they both then aided one another by assaulting the deceased.
As I've said, before an aider to a criminal charge may be found guilty, the State must satisfy you that the accused you are considering knew what offence was being committed by the other person and secondly, that the accused gave actual assistance or encouragement, either by act or word to that person to commit the offence.
So in order to find an accused guilty of murder as an aider, you would have to be satisfied that that person, that accused, gave actual assistance, that he did something positive to help in the murder of Mr Batchelor and that he did that act or acts knowing that the person who actually inflicted the fatal injuries was going to assault Mr Batchelor and he knew that that person intended to kill or cause a life endangering injury by his assaults.
If you weren't satisfied of that and you were considering whether one of the accused was guilty of being an aider to the offence of manslaughter, you would have to be satisfied beyond reasonable doubt that the accused you are considering provided actual assistance, did something positive to help the other assault Mr Batchelor.
And you would have to be satisfied that he gave that assistance in contemplation that a blow or blows of the kind that resulted in the skull fractures might be used by the other person, but you would not have to be satisfied that the blows were intended to kill or endanger life.
You would have to be satisfied that the person who aided knew that the assault of the kind that caused the deceased's death was being committed or was going to be committed and that he provided actual assistance in the assault.
He doesn't have to be present at the time the assault which caused death occurred. He can do acts prior, give actual assistance prior to the assaults occurring, but if that is the case, then he has to provide that assistance knowing either in the case of murder that assaults are going to occur which are intended to cause death or cause a serious injury or that in the case of [manslaughter] that assaults are going to take place of the kind that resulted in the skull fractures being caused (ts 1174 - 1177). (emphasis added)
65 Neither defence counsel for Mr Taylor nor defence counsel for Mr Jones sought any additional direction or redirection in relation to s 7 of the Code.
Mr Taylor's appeal against conviction: ground 1: the trial judge's 'question trail' document
66 During her summing up the trial judge gave the jury a 'question trail' document she had prepared (ts 1180). Her Honour had previously discussed a draft of the document with the prosecutor, defence counsel for Mr Taylor and defence counsel for Mr Jones (ts 1133 - 1136, 1145 - 1150).
(a) If yes, go to question 2.
(b) If no, go to question 5.
(a) If yes, go to question 3.
(b) If no, go to question 5.
(a) If yes, the verdict is guilty of murder (as long as the jury have answered yes to questions 1 and 2). No further questions should be answered in relation to that accused.
(b) If no, go to question 4.
(a) If yes, the verdict is guilty of murder (as long as the jury have answered yes to questions 1 and 2). No further questions should be answered in relation to that accused.
(b) If no, go to question 5. (emphasis added)
68 Her Honour provided the jury with detailed instructions about the use of the document (ts 1182 - 1185).
(a) The jury did not have to use the question trail in the document. It was 'entirely a matter for [the jury] if you do or not' (ts 1182).
(b) The 'question trail is not a substitute for my oral directions'. The document did not include 'everything I have said about the law'. The jury 'must apply everything that I have instructed you about the law' (ts 1182).
(c) The question trail can only be used 'by starting at question 1 and answering each question until the question trail states that an answer means that a verdict has been arrived at and no further questions should be answered' (ts 1182).
(d) Where the question trail uses the word 'proved', 'it always means proved ... beyond reasonable doubt' (ts 1182).
(e) Any answer to a question in the question trail, whether it is yes or no, must be a unanimous answer. That is, 'you all must agree on that answer before that question can be considered to have been answered and [you] can move to the next question' (ts 1182 - 1183).
70 Her Honour also took the jury step by step through the 'question trail' document (ts 1183 - 1185). In particular, her Honour repeated, without elaboration, the text of questions 3 and 4 (ts 1183 - 1184).
71 Neither defence counsel for Mr Taylor nor defence counsel for Mr Jones objected to any of the contents of the 'question trail' document. Also, neither of them sought any redirection or additional direction on the document.
Mr Taylor's appeal against conviction: ground 1: counsel for Mr Taylor's submissions
72 Counsel for Mr Taylor cited R v Roberts [2012] QCA 82 as authority for the proposition that (subject to an exception which is not relevant in the present case) an accused will not be guilty of enabling or aiding another person to commit an offence (s 7(b)) or aiding another person in committing an offence (s 7(c)) unless the accused knew all the essential facts or circumstances which must be established by the State in order to show that the offence was committed by the principal offender and that, with that knowledge, the accused intentionally assisted or encouraged the principal offender to commit that offence [166], [170] - [171] (Atkinson J, White JA agreeing).
73 Counsel also cited Bowman v The State of Western Australia [2008] WASCA 63 as authority for the propositions that a person cannot be an aider through an act which unwittingly provides assistance to the principal offender and a person cannot be an aider unless some support for the commission of the offence is actually provided [37] - [39] (Miller JA, Martin CJ & Wheeler JA agreeing).
74 Counsel for Mr Taylor submitted, in effect, that the trial judge did not direct the jury that in order to find Mr Taylor guilty of murder, on the basis that he aided or assisted Mr Jones, the jury had to be satisfied that he did or omitted to do something with the intention of aiding or assisting in the doing of the acts constituting that offence.
75 It was argued that it was necessary for her Honour expressly and specifically to instruct the jury, in her summing up, that the jury must be satisfied beyond reasonable doubt that, when Mr Taylor did any act or acts which assisted Mr Jones, he did that act or those acts with the intention that the act or acts would assist Mr Jones. Counsel argued that her Honour failed to give, as she was bound to, an express and specific instruction in those terms.
76 Accordingly, so it was submitted, the trial judge made a wrong decision on a question of law; alternatively, the inadequacy of her Honour's directions occasioned a miscarriage of justice.
Mr Taylor's appeal against conviction: ground 1: its merits
77 The State's case under s 7(b) or s 7(c) of the Code was that one of the accused (that is, either Mr Taylor or Mr Jones) caused Mr Batchelor's death by inflicting a blow or blows that fractured his skull, and the other accused aided him to do so (ts 1167, 1173, 1204). Further, the State's case was that both of the accused 'went together to the toilet block to jointly or together seriously assault the persons in there, and that they were armed, and that they each knew they were armed, and [that] they each knew that those weapons would or could be used in the process of that assault' (ts 1204).
78 Mr Taylor's case was that he did not touch Mr Batchelor, he had no idea that Mr Jones was going to come into the toilet cubicle and assault Mr Batchelor, and he did not agree with anyone that an assault on Mr Batchelor or any person in the toilet cubicles should take place.
79 Mr Jones' case was that he did not attack Mr Batchelor and the State had not proved that he was present in the toilet cubicle when Mr Batchelor received his fatal injuries.
80 The trial judge did not, in terms, expressly and specifically instruct the jury, in her summing up, that in order to find Mr Taylor guilty of the offence of murder, on the basis that he aided or assisted Mr Jones, the jury had to be satisfied that Mr Taylor did or omitted to do something with the intention of aiding or assisting in the doing of the acts which constituted that offence.
81 The 'question trail' document did not make any reference to whether Mr Taylor acted with the intention of aiding or assisting Mr Jones in the commission of the offence of murder.
82 The critical question is whether her Honour's statements, in her summing up:
(a) that '[f]or a person to be an aider, there must be some deliberate active step by word or action which assists or encourages the commission of the offence' (ts 1175) (emphasis added);
(b) that before you are entitled to convict an accused in the capacity as an aider, 'it must be shown by the State not only that the accused knew the offence was being committed or may be committed, but that he actually aided, that is, gave actual assistance to the commission of the offence' (ts 1175) (emphasis added);
(c) in illustrating the concept of aiding by reference to the example of stealing, that a person who stands outside a building, and 'the purpose of him standing there, he knows, is to give a warning to another who, he knows, is in the building in order to steal', then the first-mentioned person would be an aider to the offence of stealing (ts 1175 - 1176) (emphasis added);
(d) in the example her Honour gave, that 'the requirements of both knowledge of the offence and actual assistance are satisfied' (ts 1176);
(e) before a person may be found guilty of an offence in the capacity of an aider, 'the State must satisfy you that the accused you are considering knew what offence was being committed by the other person and ... that the accused gave actual assistance or encouragement, either by act or word to that person, to commit the offence' (ts 1176) (emphasis added);
(f) in the present case, in order to find an accused guilty of murder in the capacity of an aider, 'you would have to be satisfied that [the] accused gave actual assistance, that he did something positive to help in the murder of Mr Batchelor and that he did that act or acts knowing that the person who actually inflicted the fatal injuries was going to assault Mr Batchelor and he knew that that person intended to kill or cause a life-endangering injury by his assaults' (ts 1176 - 1177) (emphasis added); and
(g) in the course of directing on aiding in relation to the offence of manslaughter, 'you would have to be satisfied beyond reasonable doubt that the accused you are considering provided actual assistance, did something positive, to help the other assault Mr Batchelor' and 'you would have to be satisfied that he gave that assistance in contemplation that a blow or blows of the kind that resulted in the skull fractures might be used by the other person' (ts 1177) (emphasis added),
were, in combination and in the context of the State's case, Mr Taylor's case and Mr Jones' case, an adequate instruction that the jury had to be satisfied that Mr Taylor did or omitted to do something with the intention of aiding or assisting in the doing of the acts which constituted the offence of murder.
83 In my opinion, the trial judge's use of the word 'deliberate', in the context of her statement that '[f]or a person to be an aider, there must be some deliberate active step by word or action which assists or encourages the commission of the offence' (ts 1175) (emphasis added), related to the action itself as distinct from the intended effect of the action. That direction was not, of itself, adequate to convey to the jury the relevant mental element, namely that the aider must have done or omitted to do something with the intention of aiding or assisting in the doing of the acts which constituted the offence. See Ritchie, where the trial judge used relevantly identical language in directing the jury in relation an accused who, on the State's case, aided or assisted his co-offender to murder the victim [88], [96].
84 However, in the present case, I am satisfied that all of her Honour's statements, which I have set out at [82] above, were, in combination and in the context of the State's case, Mr Taylor's case and Mr Jones' case, an adequate instruction as to the relevant mental element.
(a) Her Honour's statement that 'it must be shown by the State not only that the accused knew the offence was being committed or may be committed, but that he actually aided, that is, gave actual assistance to the commission of the offence' (ts 1175) (emphasis added), would have conveyed to the jury (in the applicable context, including the State's case that the two accused went together to the toilet block to jointly or together seriously assault the persons in there, and that they were armed, and that they each knew they were armed, and that they each knew that those weapons would or could be used in the process of that assault) that an accused could not be convicted in the capacity as an aider unless the State proved that the accused knew that the offence was being committed or may be committed, as alleged by the State, and that the accused gave actual assistance 'to the commission of the offence' (emphasis added); that is, in essence, actual assistance to the co-accused (with the specified knowledge) in the commission of the offence of murder. The giving of actual assistance to the co-accused (with the specified knowledge) in the commission of the offence connotes, in the applicable context, a requirement that the alleged aider must necessarily have intended, in the circumstances, that his assistance would actually assist the co-accused to commit or in committing the offence of murder.
(b) It is inherent in her Honour's illustration of the concept of aiding by reference to a person who stands outside a building, and 'the purpose of him standing there, he knows, is to give a warning to another who, he knows, is in the building in order to steal' (ts 1175 - 1176), that the alleged aider must necessarily have intended, in the circumstances, that any warning he gave would actually assist the other person to commit or in committing the offence of stealing.
(c) Her Honour's statement that 'the State must satisfy you that the accused you are considering knew what offence was being committed by the other person and ... that the accused gave actual assistance or encouragement ... to that person, to commit the offence' (ts 1176) (emphasis added), would have conveyed to the jury (in the applicable context, including the State's case) that an accused could not be convicted in the capacity as an aider unless the State proved that the accused knew that the offence was being committed, as alleged by the State, and that the accused gave actual assistance or encouragement 'to that person, to commit the offence'. The giving of actual assistance to the other person (with the specified knowledge) to commit the offence connotes, in the applicable context, a requirement that the alleged aider must necessarily have intended, in the circumstances, that his assistance would actually assist the other person to commit or in committing the offence of murder.
(d) Her Honour's statement that 'you would have to be satisfied that [the] accused gave actual assistance, that he did something positive to help in the murder of Mr Batchelor and that he did that act or acts knowing that the person who actually inflicted the fatal injuries was going to assault Mr Batchelor and he knew that that person intended to kill or cause a life-endangering injury by his assaults' (ts 1176 - 1177) (emphasis added), would have conveyed to the jury (in the applicable context, including the State's case) that an accused could not be convicted in the capacity as an aider unless the State proved that the accused knew the person who actually inflicted the fatal injuries was going to assault Mr Batchelor, and that the accused knew the person who actually inflicted the fatal injuries intended to kill or cause a life-endangering injury by the assaults, and that the accused (with that knowledge) 'did something positive to help in the murder of Mr Batchelor'. The doing of something positive (with the specified knowledge) to help in the murder of Mr Batchelor connotes, in the applicable context, a requirement that the alleged aider must necessarily have intended, in the circumstances, that the positive things he did would actually assist the other person to commit or in committing the offence of murder.
(e) Her Honour's statements, in the course of directing on aiding in relation to the offence of manslaughter, were consistent with and would have reinforced the statements she made in the course of directing on aiding in relation to the offence of murder. Her Honour referred, in the context of manslaughter, to the accused having done 'something positive' to help the other person assault Mr Batchelor and to the accused having given that assistance 'in contemplation that a blow or blows of the kind that resulted in the skull fractures might be used by the other person' (ts 1177) (emphasis added). The giving of actual assistance to the other person, by doing something positive to help the other person assault Mr Batchelor, in the knowledge that a blow or blows of the kind that resulted in Mr Batchelor's skull fractures might be inflicted by the other person, connotes, in the applicable context, a requirement that the alleged aider must necessarily have intended, in the circumstances, that the positive things he did would actually assist the other person to commit or in committing the offence of manslaughter.
86 I am satisfied that the trial judge did not make a wrong decision on a question of law in directing the jury in relation to criminal liability as an aider under s 7(b) or s 7(c) of the Code. Her Honour did not misdirect the jury on the element of intention. On a fair reading of her summing up as a whole, in the applicable context, her Honour adequately conveyed to the jury that an accused will not be criminally liable under s 7(b) or s 7(c) unless the State proves beyond reasonable doubt, relevantly, that the accused alleged to be an aider did something with the intention of aiding or assisting another person in the doing of the acts which constitute the offence of murder. Her Honour's directions on aiding did not occasion a miscarriage of justice.
87 I am also satisfied that, in the circumstances of the present case, neither Roberts nor Bowman advances Mr Taylor's case on ground 1.
88 As to Roberts, Mr Taylor denied in his video-recorded interviews with the police and in his sworn evidence at the trial that he had assaulted Mr Batchelor or caused him any injuries. Further, Mr Taylor denied that he had formed any joint plan or common intention with Mr Jones to use violence and weapons against the occupants of the toilet cubicle. Mr Taylor's defence was that he did not himself unlawfully kill Mr Batchelor nor did he aid Mr Jones to do so. Unlike the offender in Roberts, who admitted that he had assaulted the victim and who offered an explanation as to his intention in doing so, Mr Taylor denied that he had assaulted Mr Batchelor and he denied that he did any acts which might have aided or assisted Mr Jones to unlawfully kill Mr Batchelor. Accordingly, the specific and express issue of intention that had to be determined by the jury in Roberts did not arise in the present case.
89 As to Bowman, Mr Taylor did not suggest in his video-recorded interviews with the police or in his sworn evidence at the trial that he unwittingly aided or assisted Mr Jones. As I have mentioned, Mr Taylor denied assaulting Mr Batchelor and denied having aided or assisted Mr Jones to do so. Mr Taylor asserted, in effect, that Mr Jones must have attacked and killed Mr Batchelor while Mr Taylor followed Mr Y from the toilet block towards Mr Y's car.
Mr Taylor's appeal against conviction: ground 2: s 8 of the Code
91 Section 8 of the Code provides:
(1) When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
(2) A person is not deemed under subsection (1) to have committed the offence if, before the commission of the offence, the person -
(a) withdrew from the prosecution of the unlawful purpose; and
(b) by words or conduct, communicated the withdrawal to each other person with whom the common intention to prosecute the unlawful purpose was formed; and
(c) having so withdrawn, took all reasonable steps to prevent the commission of the offence.
92 Section 8(1) requires proof of three matters. First, a common intention to prosecute an unlawful purpose. Secondly, that an offence was committed in the prosecution of the common unlawful purpose. Thirdly, that the offence committed was of such a nature that its commission was a probable consequence of the prosecution of the common unlawful purpose.
93 In R v Keenan [2009] HCA 1; (2009) 236 CLR 397, Kiefel J (Hayne J relevantly agreeing & Heydon & Crennan JJ agreeing) said in relation to the Queensland counterpart of s 8:
The purpose of s 8 is to extend the criminal responsibility of the parties to a common purpose to an offence other than that which was intended to be committed. The section limits the extension of that responsibility by requiring that the nature of the offence committed be such as to be a probable consequence of the common purpose. The test of probable consequence reflects the historical approach of the common law. The foundations for provisions such as s 8 may be traced to Sir Matthew Hale (Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373 at 383 [29] per Gleeson CJ, Gummow, Heydon and Crennan JJ, referring to Hale, Historia Placitorum Coronae (1736), vol 1, p 617) and reference to it is made in Foster's Crown Law (Foster, A Report of Some Proceedings on the Commission for the Trial of the Rebels in the Year 1746, in the County of Surry; and of Other Crown Cases, 3rd ed (1809), p 369). Responsibility does not depend upon the foresight of the parties to the common purpose. Although the common law has come to embrace such a test, the test in s 8 is an objective one (Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426 at 442 per Gibbs J, Menzies and Mason JJ agreeing) [102].
See also R v Barlow [1997] HCA 19; (1997) 188 CLR 1; Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373.
94 Section 8(1) operates separately from, and in addition to, s 7(a), s 7(b), s 7(c) and s 7(d) of the Code.
Mr Taylor's appeal against conviction: ground 2: the trial judge's summing up
95 After stating for the jury the substance of s 8 of the Code, the trial judge said:
Now, to prosecute an unlawful purpose merely means to carry out an unlawful purpose. So it is sufficient that the common intention to carry out the unlawful purpose was formed at any time prior to the commission of the offence that you are considering. It doesn't have to be a common intention formed a week beforehand or a day beforehand. It can be formed immediately before the commission of the offence (ts 1178).
96 Her Honour told the jury that the State's alternative case under s 8 was that Mr Taylor and Mr Jones agreed that they would carry out an unlawful purpose, 'being to use violence using weapons against the persons who were inside the toilet cubicle' (ts 1178).
97 The trial judge explained that it was a matter for the jury 'to decide whether there was a common intention to use violence against the persons who were inside the toilet cubicle' (ts 1178). She added that, as a matter of law, 'the use of violence and weapons against such persons would be an unlawful purpose' (ts 1178).
98 Next, her Honour directed the jury that before they could convict an accused of murder, on the basis of the State's alternative case under s 8, '[you] must be satisfied that ... murder was a probable consequence of the prosecution of the unlawful purpose'; that is, 'the commission of the offence [of murder] has not merely to be possible, [it must] be probable in the sense that it could well have happened in the carrying out of the unlawful purpose' (ts 1178).
So before an accused can be found guilty of murder on this basis the following matters have to be proved.
First, that the accused you are considering formed a common intention with another to carry out an unlawful purpose. In this respect you should ask yourselves what did the accused you are considering agree was to happen in the toilet cubicle or toilet block?
Secondly, whilst carrying out the unlawful purpose, murder must be committed by one of the participants in the unlawful purpose.
Thirdly, that murder must be a probable consequence of the carrying out of the unlawful purpose. In this respect you should ask yourselves whether murder could well have happened when the unlawful purpose was being carried out.
So if you, say, accepted the State's proposition that the unlawful purpose was to use violence and weapons against the persons inside the cubicle, you would ask yourselves was murder a probable consequence of carrying out the infliction of violence and using weapons on the persons inside the cubicle? Could murder well have happened when you're assaulting people with violence and weapons?
This requires you to consider whether it could have well happened that during an assault with weapons one participant would get so angry or have another emotion that resulted in them forming an intent to kill or to cause a life-endangering injury, and that they would, with that intent, inflict [a] blow or blows and the victim would die.
If those matters are proven then the accused you are considering is guilty of murder on the basis of unlawful common purpose (ts 1178 - 1179).
100 Neither defence counsel for Mr Taylor nor defence counsel for Mr Jones sought any redirection or additional direction in relation to s 8 of the Code.
Mr Taylor's appeal against conviction: ground 2: the trial judge's 'question trail' document
101 The trial judge's 'question trail' document reads, relevantly to ground 2:
(a) If 'yes', go to question 6.
(b) If 'no', the verdict is not guilty of murder. Go to question 10.
(a) If 'yes' go to question 7.
(b) If 'no', the verdict is not guilty of murder. Go to question 8.
(a) If 'yes', the verdict is guilty of murder (as long as the jury have also answered yes to questions 5 & 6). No further questions should be answered in relation to that accused.
(b) If 'no' go to question 8.
102 As I have mentioned in considering ground 1, her Honour gave the jury detailed instructions about the use of the document (ts 1182 - 1185).
103 Also, as I have mentioned in considering ground 1, neither defence counsel for Mr Taylor nor defence counsel for Mr Jones objected to any of the contents of the 'question trail' document, and neither of them sought any redirection or additional direction on the document.
Mr Taylor's appeal against conviction: ground 2: counsel for Mr Taylor's submissions
104 Counsel for Mr Taylor referred to McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 and Gillard v The Queen [2003] HCA 64; (2003) 219 CLR 1 in relation to 'the scope of the common purpose' and 'the common purpose test'.
105 Counsel also referred to the following observations of Templeman J in Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338:
(a) the task of the jury in the context of s 8 is 'to identify the common intention of the accused persons' [45] (original emphasis); and
(b) if the 'common purpose' of the accused persons was 'just to give [the victim] a belting and send him on his way' the accused persons 'who had that intention would be guilty of no more than manslaughter if, viewed objectively, death was a probable consequence of the prosecution of such purpose', but 'if one of the accused had an intention to kill, that would exceed the common intention and would result in that offender being convicted of wilful murder' [54] (original emphasis).
106 It was submitted that there was 'a real, and not remote,' possibility that, during the assault on Mr Batchelor, Mr Jones formed 'an intention to either kill or cause life-endangering injury to Mr Batchelor that exceeded the intention of [Mr Taylor]'.
107 Counsel complained that the trial judge failed to direct the jury that Mr Taylor would not be guilty of murder if 'Mr Jones formed an intention that exceeded the common intention unless Mr Taylor shared that elevated intent'.
108 It was submitted that her Honour should have directed the jury that 'an accused must foresee the criminal act of the principal before the prosecution can prove extended common purpose'. Counsel cited R v Bosworth [2007] SASC 150; (2007) 97 SASR 502 in support of that proposition.
Mr Taylor's appeal against conviction: ground 2: its merits
109 Criminal liability under s 8 of the Code is different from and less extensive than criminal liability under the doctrine of 'joint criminal enterprise' or common purpose at common law.
110 In Miller v The Queen [2016] HCA 30; (2016) 90 ALJR 918, French CJ, Kiefel, Bell, Nettle & Gordon JJ summarised the various components of the doctrine of 'joint criminal enterprise' or common purpose at common law:
The law, as stated in McAuliffe, is that a joint criminal enterprise comes into being when two or more persons agree to commit a crime. The existence of the agreement need not be express and may be an inference from the parties' conduct. If the crime that is the object of the enterprise is committed while the agreement remains on foot, all the parties to the agreement are equally guilty, regardless of the part that each has played in the conduct that constitutes the actus reus (McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 at 114 per Brennan CJ, Deane, Dawson, Toohey and Gummow JJ; Johns v The Queen (1980) 143 CLR 108; [1980] HCA 3; Macklin, Murphy and Others' Case (1838) 2 Lewin 225 [168 ER 1136] per Alderson B). Each party is also guilty of any other crime ('the incidental crime') committed by a co-venturer that is within the scope of the agreement ('joint criminal enterprise' liability). An incidental crime is within the scope of the agreement if the parties contemplate its commission as a possible incident of the execution of their agreement. Moreover, a party to a joint criminal enterprise who foresees, but does not agree to, the commission of the incidental crime in the course of carrying out the agreement and who, with that awareness, continues to participate in the enterprise is liable for the incidental offence ('extended joint criminal enterprise' liability) [4].
111 By contrast, s 8 creates criminal liability for offences that were not part of any original agreement or plan, but the commission of the offences was a probable consequence (that is, an objective probable consequence) of the prosecution of an unlawful purpose which two or more persons formed a common intention to prosecute in conjunction with one another.
(a) unlike the common law test (which depends upon the foresight of the parties to the common purpose), the test in s 8 is objective [102]; and
(b) the test in s 8 is as to the probable consequences of the common plan, not what the parties might have foreseen [124].
113 The decisions of the High Court in McAuliffe, Gillard and Miller concerned appeals from non-Code States. Similarly, the decision of the Court of Criminal Appeal of South Australia in Bosworth concerned the common law.
114 Counsel for Mr Taylor's reliance on McAuliffe, Gillard and Bosworth is therefore misplaced.
115 In my opinion, the trial judge gave appropriate and satisfactory directions in relation to the possible application of s 8 to the facts of the case. In particular:
(a) her Honour identified for the jury the unlawful purpose alleged by the State; that is, that Mr Taylor and Mr Jones had agreed that they would carry out the unlawful purpose of using violence, with weapons, against the persons who were inside the toilet cubicle (ts 1178); and
(b) her Honour instructed the jury that it was sufficient if the alleged common intention to prosecute that unlawful purpose was formed at any time prior to the commission of the offence in question (even if only immediately before its commission) (ts 1178).
116 Further, in my opinion, it would have been readily apparent to the jury from question 5 in her Honour's 'question trail' document that if the State failed to prove that Mr Taylor and Mr Jones had formed a common intention to use violence, with a weapon, on the occupants of the toilet cubicle, the jury's verdict would be not guilty of murder and they should proceed to question 10, which dealt with unlawful killing.
117 Questions 6 and 7 of the 'question trail' document concerned the issues the jury would have to deal with if they found that Mr Taylor and Mr Jones had formed a common intention to prosecute the alleged unlawful purpose.
118 I am satisfied that the jury would have understood that it was necessary for them to determine whether Mr Taylor and Mr Jones had formed a common intention to prosecute the alleged unlawful purpose and, if the State proved those matters, then to determine whether Mr Batchelor had been murdered during the carrying out of that unlawful purpose and, if so, then to determine whether the offence of murder was of such a nature that its commission was an objective probable consequence of the prosecution of the unlawful purpose.
119 There was no scope for the jury to misunderstand the trial judge's directions in relation to the State's alternative case under s 8. In particular, there was no scope for the jury to misunderstand their obligation to consider whether Mr Batchelor's murder was an objective probable consequence of the prosecution by Mr Taylor and Mr Jones of the alleged unlawful purpose pursuant to their alleged common intention.
120 In Bardsley, the appellant and two co-accused were convicted, after a trial, of the wilful murder of a boy aged 14. The Crown's case was, in essence, that the three accused pursued the victim with a view, at least, to capturing him and 'bashing' him very badly; and that, once the victim had been captured, at least the male co-accused Stapleton had assaulted the victim with the intention of causing his death, and the appellant and the other female co-accused had aided Stapleton, either having that intention themselves or knowing that that was Stapleton's intention. In the alternative, a question arose as to the operation of s 8 of the Code, but that was not the primary focus of the Crown's case [123].
122 In the Court of Criminal Appeal, a majority (Templeman J and Wallwork AJ; Wheeler J dissenting) allowed the appeal, set aside the conviction and ordered a new trial. The majority held that the trial judge's directions to the jury, as to how the law might be applied to the facts, were inadequate. The majority also held that his Honour failed to engage in a judicial review of the facts.
124 In the present case, Mr Taylor (and Mr Jones) denied any involvement in Mr Batchelor's murder. By contrast, the appellant in Bardsley accepted that she was guilty of deprivation of liberty, and admitted that she had asked Stapleton to run down the victim prior to his capture. She conceded that she had wanted to catch the victim and, probably, strike him, but denied she had in mind that the victim would be beaten in a way that would endanger his life. The appellant in Bardsley contended that the death of the victim had not been a planned event, in the sense of a premeditated murder, and that the plan had been to catch the victim and teach him a lesson, but not in circumstances where it was probable that he would be killed. She claimed, in effect, that Stapleton had 'lost it' and had killed the victim when he was alone and, consequently, she was not guilty of wilful murder [191] - [194], [198] - [199].
125 The critical questions for the jury in Bardsley concerned intention and purpose. In the present case, although intention and purpose were important issues in relation to s 8, neither Mr Taylor nor Mr Jones gave any relevant evidence about intention or purpose. By contrast, the appellant in Bardsley claimed she had an intention and a purpose (namely, to 'get' the victim and teach him a lesson) which, she contended, did not make it probable that the victim would be killed. In the present case, consistently with Mr Taylor's and Mr Jones' cases that they had no involvement in Mr Batchelor's killing, no alternate or lesser common intention or unlawful purpose than those alleged by the State was suggested by either Mr Taylor or Mr Jones. In the circumstances, the trial judge was not bound to direct the jury in relation to common intention or unlawful purpose other than in the manner she did.
126 It is unnecessary, in the circumstances, to express an opinion on the correctness of Templeman J's observation (which was an obiter dictum) in Bardsley that if the 'common purpose' of the accused persons in that case was 'just to give [the victim] a belting and send him on his way' the accused persons 'who had that intention would be guilty of no more than manslaughter if, viewed objectively, death was a probable consequence of the prosecution of such purpose' [54] (original emphasis).
127 Finally, in the context of ground 2, I note that counsel for Mr Taylor did not allege that there was insufficient evidence to permit the jury to find that Mr Taylor and Mr Jones had formed the common intention or the unlawful purpose alleged by the State.
Mr Taylor's appeal against conviction: grounds 3 and 4: general
129 It is convenient to deal with grounds 3 and 4 together.
Mr Taylor's appeal against conviction: grounds 3 and 4: the relevant evidence at trial
130 At the trial it was not possible for the State to prove that any particular act of Mr Taylor or Mr Jones made a significant or substantial contribution to Mr Batchelor's death. This difficulty was occasioned by the nature and extent of the injuries observed by Dr Moss in carrying out the post-mortem examination and having regard to the evidence of Mr Y, who was the only witness to the actual assault on Mr Batchelor.
131 Dr Moss gave evidence to the effect that Mr Batchelor died as a result of a skull fracture. The fracture caused injuries to his brain which, in turn, led to his death (ts 805 - 806, 815 - 829).
132 Mr Y gave evidence to the effect that, after the first male attacker (who, on the State's case, was Mr Taylor) broke into the toilet cubicle and before any other physical violence was inflicted on Mr Batchelor, the first attacker punched Mr Batchelor to the head. Mr Y said in effect that, immediately after being punched, Mr Batchelor fell to the ground (ts 217 - 221).
133 Mr Y also gave evidence that, after Mr Batchelor had fallen to the ground, both of the male attackers assaulted Mr Batchelor by punching, kicking and stomping on him and the second male attacker (who, on the State's case, was Mr Jones) struck Mr Batchelor with a metal pole. Mr Y was not, however, able to say where on his body those blows struck Mr Batchelor (ts 217 - 221).
134 Mr Y described the physical appearance of each of the attackers (ts 218 - 219).
135 The jury, by their verdicts, must have found that Mr Taylor was the first attacker and Mr Jones was the second attacker.
136 Mr Y did not say in evidence that Mr Batchelor struck his head on the concrete floor of the toilet cubicle when he fell to the ground. However, there is no doubt, on the evidence, that Mr Batchelor was knocked to the ground and that he then lay on the ground. His head would necessarily have come into contact with the floor of the cubicle in the course of those events occurring.
137 Mr Y said in evidence that the second attacker was directly behind the first attacker. He said 'they both walked in together' and 'they were booting him, kicking him and punching him' and 'the second guy [Mr Jones] was hitting him with the pole' (ts 219). Mr Y said that the first attacker (Mr Taylor) was punching and kicking Mr Batchelor 'with a lot of aggression' and it was 'very physical, very aggressive, with a lot of force' (ts 219). A little later, Mr Y clarified that it was 'the guy with the long hair' (Mr Taylor) who was doing all the kicking and punching and that '[t]he second guy' (Mr Jones) was hitting him with the pole (ts 220). He could hear four or five 'thuds' as Mr Batchelor was being hit with the pole, and he knew that Mr Batchelor was being hit with something 'really hard' (ts 220).
138 A diagram of the toilet cubicle, depicting its dimensions and marked by Mr Y (with a stick figure showing where Mr Batchelor lay after he was knocked to the ground) was tendered as exhibit 6 (ts 222).
(a) Mr Batchelor's skull had multiple fracture lines. These fractures were to the bilateral orbital plates. The fractures were on both sides. Mr Batchelor had 'blacked eyes on both sides because of this fracturing immediately above the eyes'. The cause of the fracture lines was 'blunt force trauma'. The fracturing of the bone would have taken 'a significant degree of force' (ts 819 - 821).
(b) A blow to Mr Batchelor's head with a 'solid metal object' or a 'pipe' could have caused his skull fracture (ts 821).
(c) However, the skull fracture could also have been caused if Mr Batchelor had been punched or had received a blow which resulted in him falling and hitting his head on the concrete floor of the toilet cubicle (ts 821 - 822, 840).
(d) It was possible that kicking could have caused the skull fracture, depending on the footwear of the assailant and whether Mr Batchelor's head was supported at the time, but it was 'difficult to say'. In his experience, kicking was not as likely as a more solid object to have caused the skull fracture, but it was possible (ts 821).
(e) He was unable to say whether the skull fracture was caused by one or multiple blows (ts 821, 840).
(f) It was extremely unlikely that a punch with a fist could have caused the skull fracture (ts 821).
(g) At the post-mortem examination he observed other injuries on Mr Batchelor's body that were consistent with having been inflicted by blunt force. However, there was no evidence that any of those injuries (either alone or in combination with any other injuries) made a significant or substantial contribution to Mr Batchelor's death (ts 1174).
140 It is apparent from Dr Moss' evidence in combination with photographs of Mr Batchelor taken after his death that the most serious skull fracture was on the left side of Mr Batchelor's skull.
Mr Taylor's appeal against conviction: grounds 3 and 4: the trial judge's summing up
141 The trial judge directed the jury in relation to the elements of the offence of murder. She instructed the jury about what they would have to consider if they determined that the accused under consideration had caused Mr Batchelor's death by his own blow or blows or as an aider. She emphasised that the jury would have to find that the accused under consideration had the requisite intention before he could be convicted of murder (ts 1168 - 1170).
If you're satisfied that he intended to cause any bodily injury, you apply your own standards as reasonable members of the community and ask yourselves whether the injury the accused intended to cause would endanger life or would be likely to endanger life.
It should be obvious to you that in order to decide this question, you will have to decide what sort of bodily injury did the accused intend to cause. When considering an accused's intent, the time to be considered is the time when the fatal injury was inflicted.
You ask yourselves, what was the accused's intent at that time. The intention need not have been formed a long time before the incident, it may have been formed only a short time before the fatal injuries were inflicted (ts 1170). (emphasis added)
143 The trial judge reminded the jury that, on the State's case under s 7 of the Code, each of the accused was guilty of murder on one or other of two alternative bases. The first was that each accused actually did the physical acts which constituted the offence of murder, and that 'he had the required intents when he did so' (ts 1174) (emphasis added). The alternative State case against each accused was that he assisted or aided the other to murder Mr Batchelor.
144 As to the alternative State case under s 7, her Honour instructed the jury in relation to the applicable law and the application of the legal principles to the facts as found by them (ts 1174 - 1177).
145 The trial judge gave the jury the following directions, in the context of the State's case generally, in relation to causation:
Now, the medical evidence ... is that a blow with a pole or a bat could cause the skull fractures which resulted in the injuries to Mr Batchelor's brain which resulted in turn in his death.
Dr Moss also gave evidence that it was possible that if somebody was punched or received a blow which caused them to fall down and they hit their head on concrete, for example, that might also cause the skull fractures which would then lead to death.
So it's not as simple as saying, 'Well, it must have been the person who wielded the bat who caused death'. You will have to consider the medical evidence and the other evidence in the trial to decide whether it was the blows with the bat or a bat or a pole or something of that nature which caused the skull fractures or whether the fractures might have been or reasonably possibly could have been caused when Mr Batchelor fell to the ground.
In that respect, although it's fair to say that this was [not] canvassed with Dr Moss, you should consider the location of the skull fractures and consider whether it is likely that those fractures would have been caused when someone fell to the ground and hit their head or whether they're on a place on the head where it's more likely they would have been caused when a blow was delivered directly to that area.
The State says that you can be satisfied beyond reasonable doubt that both accused were principal offenders in that they either directly caused Mr Batchelor's death by their blows or that they aided the other offender to do so ...
Now, if you're satisfied beyond reasonable doubt that that was the case, that one of the offenders caused the deceased's death with a blow or blows and that the other aided him to do so, then you should find that each accused killed and therefore caused the death of Mr Batchelor (ts 1167 - 1168). (emphasis added)
Mr Taylor's appeal against conviction: grounds 3 and 4: counsel for Mr Taylor's submissions
146 As to ground 4, counsel for Mr Taylor submitted in substance that, because it was not possible for the State to prove that it was Mr Taylor as opposed to Mr Jones who inflicted the fatal injury, it followed that, in order to find Mr Taylor guilty of murder, the jury had to be satisfied beyond reasonable doubt that, at the time Mr Batchelor was first physically assaulted, Mr Taylor had the intention required by s 279(1)(a) or s 279(1)(b) of the Code or Mr Taylor was aiding Mr Jones with knowledge that Mr Jones had that intention.
147 Counsel for Mr Taylor elaborated in substance that, because the State was required to prove that the person who killed Mr Batchelor had one of the intentions referred to in s 279(1)(a) or s 279(1)(b) at the time the act causing death was done, it followed that, in order to find Mr Taylor guilty of murder, the jury had to be satisfied beyond reasonable doubt that, when Mr Taylor punched Mr Batchelor upon entering the toilet cubicle, Mr Taylor had the requisite intent for murder or Mr Taylor knew that Mr Jones had that intention and Mr Taylor aided Mr Jones in attacking Mr Batchelor.
148 According to counsel, the trial judge failed to give a direction to the jury in those terms.
149 As to ground 3, counsel for Mr Taylor submitted in substance that her Honour invited the jury to speculate impermissibly by directing that the jury 'should consider the location of the skull fractures and consider whether it is likely that those fractures would have been caused when someone fell to the ground and hit their head or whether they're on a place on the head where it's more likely they would have been caused when a blow was delivered directly to that area' (ts 1167).
150 Counsel argued that the question of whether the skull fractures were caused because Mr Batchelor fell to the ground after being struck by Mr Taylor or whether those fractures were caused because Mr Batchelor was struck with a metal pole wielded by Mr Jones, was clearly capable of being an important issue.
151 However, the State accepted that it could not prove beyond reasonable doubt whether Mr Batchelor was killed when Mr Taylor punched him, causing him to fall to the ground, or whether Mr Batchelor was killed because Mr Jones struck him on the head with a metal pole.
152 It was submitted that the impugned direction was 'contrary to the [State's case]'.
Mr Taylor's appeal against conviction: grounds 3 and 4: their merits
153 As to ground 4, after directing the jury in relation to the elements of the offence of murder, the trial judge instructed the jury about what they would have to consider if they determined that the accused under consideration caused Mr Batchelor's death by his own blow or blows or as an aider. Her Honour emphasised that the jury would have to find that the accused under consideration had the requisite intention before he could be convicted of murder. She told the jury that, when considering the accused's intent, 'the time to be considered is the time when the fatal injury was inflicted' and it was necessary for the jury to ask themselves 'what was the accused's intent at that time'. Her Honour elaborated that the accused's intent may have been formed only a short time before the fatal injury was inflicted (ts 1170).
154 As I have mentioned in the course of considering ground 1, her Honour directed the jury in relation to aiding that:
(a) the jury must consider whether the accused aided the person who caused the death of Mr Batchelor 'knowing that the person who caused the death either intended to cause Mr Batchelor's death or intended to cause a bodily injury of such a nature as to endanger or be likely to endanger [Mr Batchelor's] life' (ts 1169);
(b) before an accused may be found guilty in the capacity as an aider, the State must satisfy the jury, relevantly, that 'the accused you are considering knew what offence was being committed by the person he aided in the sense that he had actual knowledge of all the essential facts which make the act done an offence' (ts 1175);
(c) it must be shown by the State that the accused 'knew the offence was being committed or may be committed' (ts 1175); and
(d) before an aider may be found guilty, the State must satisfy the jury, relevantly, that 'the accused you are considering knew what offence was being committed by the other person' (ts 1176).
155 Questions 3 and 4 of the trial judge's 'question trail' document dealt with intention in relation to the offence of murder. Question 3 asked whether the State had proven that 'at the time the accused killed the deceased he intended to cause the deceased's death or, if he provided actual assistance in the killing, that he did so knowing that person whom he assisted intended to cause the deceased's death' (emphasis added). Similarly, question 4 asked whether the State had proven that 'at the time the accused killed the deceased he intended to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the deceased's life, or if he provided actual assistance in the killing, that he did so knowing that the person who he assisted intended to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the deceased's life' (emphasis added). The document stated, in the case of each of questions 3 and 4, that if the answer was 'yes' then the verdict was guilty of murder (subject to the jury having answered 'yes' to questions 1 and 2).
156 I am satisfied that the jury would have understood that if they found that Mr Batchelor died from a skull fracture caused when he fell and hit his head on the concrete floor of the toilet cubicle, after having been punched by Mr Taylor, the time as at which the jury must consider intent was, as her Honour directed, the time when the fatal injury was inflicted.
157 In my opinion, the trial judge did not misdirect the jury as alleged in ground 4. On a fair reading of each of her summing up as a whole and the 'question trail' document, her Honour adequately instructed the jury, and the jury would have understood, that if they were not satisfied beyond reasonable doubt as to which of Mr Taylor or Mr Jones inflicted the fatal injury, then, before convicting Mr Taylor of murder, the jury had to be satisfied beyond reasonable doubt that, at the time Mr Batchelor was first physically assaulted, Mr Taylor had the intention required by s 279(1)(a) or s 279(1)(b) of the Code or Mr Taylor was aiding Mr Jones with knowledge that Mr Jones had that intention.
159 As to ground 3, the impugned direction, namely that the jury:
[S]hould consider the location of the skull fractures and consider whether it is likely that those fractures would have been caused when someone fell to the ground and hit their head or whether they're on a place on the head where it's more likely they would have been caused when a blow was delivered directly to that area (ts 1167),
(a) her Honour had cautioned the jury that deciding how Mr Batchelor's skull was fractured '[was] not as simple as saying, "well, it must have been the person who wielded the bat who caused death"' (ts 1167); and
(b) her Honour had told the jury that they would have to consider 'the medical evidence and the other evidence in the trial to decide whether it was the blows with the bat or a bat or a pole or something of that nature which caused the skull fractures or whether the fractures might have been or reasonably possibly could have been caused when Mr Batchelor fell to the ground' (ts 1167).
160 As I have mentioned, Mr Y did not say in evidence that Mr Batchelor struck his head on the concrete floor of the toilet cubicle when he fell to the ground. However, there is no doubt, on the evidence, that Mr Batchelor was knocked to the ground and that he then lay on the ground. His head would necessarily have come into contact with the floor of the cubicle in the course of those events occurring.
161 The trial judge acknowledged, in the course of giving the impugned direction, that although Dr Moss gave evidence as to the likelihood of Mr Batchelor's skull fracture having been caused by a variety of means (notably, by being struck by a solid metal object or pipe; or by being punched or receiving a blow which resulted in him falling and hitting his head on the floor of the cubicle; or by being kicked), Dr Moss was not asked whether the location of the skull fractures indicated that it was more likely they would have been caused by 'a blow delivered directly to that area' as opposed to Mr Batchelor having hit his head when he fell to the ground after having been punched or having received a blow (ts 1167).
162 In my opinion, on a fair reading of the impugned direction, in the context of the whole of the evidence and the applicable context, her Honour did not invite the jury to speculate impermissibly.
163 It was not essential that questions have been put to Dr Moss about the issue referred to in the impugned direction. The jury would have been able to form a sound judgment, based on the evidence that Dr Moss did give (including his evidence as to the location of the skull fractures) and the evidence of Mr Y, as to whether the fractures were more likely to have been caused by a blow delivered directly to the area in question as opposed to having been caused when Mr Batchelor fell to the ground and his head came into contact with the floor of the cubicle. Further evidence from Dr Moss may have been desirable, but was not essential. See Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 [53] (Gaudron & Gummow JJ).
164 In my opinion, the impugned direction was not contrary to the State's case.
165 The prosecutor clarified in debate between counsel and the trial judge, after defence counsel for Mr Taylor had misstated an aspect of the State's case in his closing address, that the State's case was, in respect of one pathway to guilt, that both Mr Taylor and Mr Jones were attacking Mr Batchelor at the same time. Although the State's position was that it was more likely that Mr Jones inflicted the fatal injury, and Mr Taylor aided him to do so, the State was not positively asserting that Mr Taylor did not inflict the blow that caused the fatal injury (ts 1116 - 1119). That was a matter for the jury (ts 1118 - 1119).
166 Shortly after she gave the impugned direction, her Honour reminded the jury that the State's case under s 7 of the Code was that both Mr Taylor and Mr Jones were principal offenders in that either they directly caused Mr Batchelor's death by their blows or one of them aided the other to do so (ts 1168).
167 The impugned direction was consistent with the State's case in that it sought, and did, focus the jury's attention on the necessity to consider, in the course of determining criminal responsibility, how the skull fractures were caused or inflicted.
Mr Jones' appeal against conviction: the grounds of appeal
169 Mr Jones' grounds of appeal (like Mr Taylor's grounds) were amended, with leave, after the hearing of the appeal. The court ordered counsel for Mr Jones and counsel for the State to file and serve written submissions on the amended grounds. That was done.
170 Ultimately, Mr Jones relied on five grounds of appeal.
171 Ground 1 mirrors ground 4 of Mr Taylor's grounds of appeal. That is, ground 1 alleges that a miscarriage of justice occurred because 'the jury were not directed that before convicting [Mr Jones] of murder they had to be satisfied beyond reasonable doubt that, at the time the deceased was first physically assaulted, [Mr Jones] had the intention required by s 279(1)(a) or (b) of [the Code], or was aiding Mr Taylor with knowledge that [Mr Taylor] had that intention'.
172 Ground 2 is identical in substance to ground 3 of Mr Taylor's grounds of appeal. That is, ground 2 alleges that her Honour made a wrong decision on a question of law, or a miscarriage of justice occurred, 'when the jury [was asked] to consider whether the location of the injuries to the deceased's skull would have been caused when the deceased fell to the ground and hit his head or whether the injuries are on a place on the [deceased's] head where [it is] more likely they would have been caused when a blow was delivered directly to that area'.
173 Ground 3 alleges that her Honour made a wrong decision on a question of law, or a miscarriage of justice was occasioned, by the directions she gave to the jury about Mr Jones' possible criminal liability pursuant to s 8 of the Code.
174 Ground 4 alleges that a miscarriage of justice was occasioned by the cross-examination by Mr Jones' defence counsel of the State witness, Ms Bentley.
175 Ground 5 is similar to ground 1 of Mr Taylor's grounds of appeal. Ground 5 alleges that her Honour made a wrong decision on a question of law, or a miscarriage of justice was occasioned, by her failure to direct the jury that in order to find Mr Jones guilty of murder in accordance with s 7(b) or s 7(c) of the Code the jury had to be satisfied that he did or omitted to do something with the intention of aiding or assisting in the doing of the acts which made up that offence.
176 On 23 August 2015, Mazza JA granted leave to appeal on ground 1. Leave to appeal has not yet been granted on any of the other grounds.
Mr Jones' appeal against conviction: ground 1
177 In my opinion, ground 1 is without merit. I am of that opinion generally for the reasons I have given in relation to ground 4 of Mr Taylor's appeal against conviction.
Mr Jones' appeal against conviction: ground 2
179 In my opinion, ground 2 is without merit. I am of that opinion generally for the reasons I have given in relation to ground 3 of Mr Taylor's appeal against conviction.
Mr Jones' appeal against conviction: ground 3
181 Ground 3 alleges that the trial judge misdirected the jury about Mr Jones' possible criminal liability under s 8 of the Code.
182 Mr Jones' ground 3 raises an issue that is different from Mr Taylor's ground 2.
183 According to counsel for Mr Jones, s 8 could not operate to render Mr Jones criminally responsible for the offence of murder unless:
(a) Mr Jones was not the principal offender within s 7; and
(b) Mr Taylor was the principal offender because he actually inflicted the fatal injury to Mr Batchelor.
184 Counsel submitted that it was not open to the jury to find that Mr Jones was guilty of murder pursuant to s 8 because, on the State's case, it was not possible for the State to prove beyond reasonable doubt which of Mr Taylor or Mr Jones was the principal offender.
185 In the circumstances, so it was submitted, her Honour should not have directed the jury that it was open to them to convict Mr Jones on the basis that he was criminally responsible in accordance with s 8.
186 According to counsel for Mr Jones, there is support for his argument in the following extracts from the reasons of Hayne J and Kiefel J in Keenan.
187 In Keenan, Hayne J (Crennan J agreeing) said that the Queensland counterpart of s 8 deems those who form a common intention to prosecute an unlawful purpose to have committed an offence where 'in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose' [83]. His Honour added that 'the premise upon which s 8 is engaged is that s 7 of the Code does not apply, and the accused is not a principal offender within the meaning of the provisions of s 7' [89].
188 In Keenan, Kiefel J (Hayne J relevantly agreeing & Heydon & Crennan JJ agreeing) stated:
It is the conduct of the principal offender upon which s 8 fastens, the doing of the act or the making of the omission (R v Barlow (1997) 188 CLR 1 at 10). The circumstances of the offence, including its result and the state of mind which accompanied it define the offence as one of a particular 'nature' (R v Barlow (1997) 188 CLR 1 at 10) [132].
189 In the present case, the State's case, as opened by the prosecutor, was that there were 'different pathways' by which the appellants could be found guilty of, relevantly, murder (ts 172). The prosecutor referred in effect to criminal responsibility under s 7(a), s 7(b) and s 7(c) of the Code (ts 172 - 173).
190 The prosecutor then told the jury that another pathway to guilt, depending on what the jury found to be proved, was criminal responsibility under s 8 of the Code (ts 173 - 174). The prosecutor explained the elements of s 8 and how, on the State's case, it could apply. In particular, the prosecutor said:
So in the circumstances of this case, the way in which it would work is that if the accused decided to use violence against the persons who were inside the toilet cubicle, for whatever reason - but, let's say, to teach them a lesson or to deter others from using the toilets for the purpose that they were using them for, and if they decided that they would use weapons for that purpose - and that's why I've mentioned again that each was armed with a weapon.
If you were to find that it was a probable consequence of carrying out that unlawful purpose that an offence of the kind that was in fact committed, murder, would occur, then each of them would be guilty of the murder, even though they may not have - or the person who did not inflict the blows may not have intended to kill or to cause life-threatening injuries to Mr Batchelor, or to any person in the toilet that they intended to assault.
So in the circumstances of this case, if you were, for instance - and I'm not saying this is necessarily the path that you would take, but if you were to find that the skull fracture was as the result of Mr Batchelor being struck with a metal pole by Mr Jones, if that were the finding that you were to make, and if you were to have a reasonable doubt as to whether Mr Taylor had intended beforehand to cause a life-threatening injury to Mr Batchelor, then he could still be guilty of murder if it was a probable consequence of the unlawful purpose that they embarked on that it could get to that situation, that it could get to the situation where that kind of injury would be inflicted or might be inflicted on Mr Batchelor (ts 173 - 174).
191 The prosecutor then informed the jury in effect that they may not need to consider the s 8 pathway 'at the end of the trial if, as the State will be submitting to you, you are satisfied that, in fact, both accused, because of the nature of the violence that was inflicted on Mr Batchelor ... intended to cause him such a serious kind of injury that, objectively speaking, it would be life-threatening' (ts 174).
192 The prosecutor summarised the State's position, in opening, as follows:
So ... to finalise the position that the State says it will be pursuing, primarily the State says the accused are guilty on the basis of each of them inflicting injuries to Mr Batchelor and each of them intending to cause him - either to kill him or to cause him a life-threatening injury. But there is that other position to which you may resort if you are not satisfied about that in respect of either accused (ts 175). (emphasis added)
193 The 'other position to which you may resort' referred to in that passage was, in context, criminal responsibility under s 8.
194 The trial judge instructed the jury in her summing up that the State's case was this:
So ... the State case is that the State's position is that it is more likely, and that it is open for you to decide that it was Mr Jones who inflicted the fatal injuries, and that Mr Taylor aided him to do so, but that it would also be open to you, on the evidence, to find that Mr Taylor had done so, that is, inflicted the fatal injuries, and Mr Jones had aided him to do so. Or, as I will go on to say, that the death occurred in the prosecution of an unlawful common purpose (ts 1174).
195 A feature of the State's case against Mr Taylor and Mr Jones under s 8 was that, although the State 'cannot say for sure that it was Mr Jones as opposed to Mr Taylor who inflicted the fatal injury' (ts 1173), one of the accused (that is, either Mr Taylor or Mr Jones) caused Mr Batchelor's death by inflicting a blow or blows that fractured his skull.
196 In my opinion, the inability of the State to prove beyond reasonable doubt which of Mr Taylor or Mr Jones inflicted the fatal injury that caused Mr Batchelor's death was not an obstacle to her Honour directing the jury on s 8. It was, of course, necessary for the State to prove beyond reasonable doubt that, in the prosecution of the alleged unlawful purpose which Mr Taylor and Mr Jones allegedly formed a common intention to prosecute in conjunction with one another, either Mr Taylor or Mr Jones unlawfully killed Mr Batchelor with the requisite intention for murder and that murder was a probable consequence of the prosecution of the alleged unlawful purpose. However, nothing in the text of or the concepts embodied in s 8, and nothing in the observations of Hayne J or Kiefel J in Keenan, precluded the application of s 8 merely because the State was unable to prove beyond reasonable doubt which of Mr Taylor or Mr Jones unlawfully killed Mr Batchelor with the requisite intention for murder.
197 As I have mentioned, in considering ground 2 of Mr Taylor's grounds of appeal, s 8 creates criminal liability for offences that were not part of any original agreement or plan, but the commission of the offences was a probable consequence (that is, an objective probable consequence) of the prosecution of an unlawful purpose which two or more persons formed a common intention to prosecute in conjunction with one another.
198 In the present case, the unlawful purpose alleged by the State was that Mr Taylor and Mr Jones had agreed that they would carry out the unlawful purpose of using violence, with weapons, against the persons who were inside the toilet cubicle.
199 It was necessary for the State to prove beyond reasonable doubt that:
(a) Mr Taylor and Mr Jones formed a common intention to carry out the alleged unlawful purpose;
(b) during the carrying out of the alleged unlawful purpose Mr Batchelor was murdered; that is, he was unlawfully killed and the person (either Mr Taylor or Mr Jones) who inflicted the fatal blows intended to kill him or to cause him a bodily injury of such a nature as to endanger or be likely to endanger his life; and
(c) murder was a probable consequence of the carrying out of the alleged unlawful purpose.
200 It was not necessary for the State to prove beyond reasonable doubt which of Mr Taylor or Mr Jones unlawfully killed Mr Batchelor with the requisite intention for murder.
202 I have concluded, in the context of ground 2 of Mr Taylor's grounds of appeal, that the trial judge gave appropriate and satisfactory directions in relation to the possible application of s 8 to the facts of the case.
Mr Jones' appeal against conviction: ground 4: general
204 Ground 4 alleges that a miscarriage of justice was occasioned by the cross-examination by Mr Jones' defence counsel of the State witness, Ms Bentley.
205 Mr Taylor's grounds of appeal do not contain a counterpart of ground 4.
Mr Jones' appeal against conviction: ground 4: counsel for Mr Jones' submissions
206 Counsel for Mr Jones expressly disclaimed any suggestion that the conduct of Mr Jones' defence counsel deprived him of a fair trial according to law.
207 Rather, it was submitted that the cross-examination by Mr Jones' defence counsel of Ms Bentley occasioned a miscarriage of justice 'because it was a material irregularity in the trial, and there [is] a significant possibility that the irregularity affected the outcome'.
208 Counsel for Mr Jones referred to the prosecutor's closing address in which the prosecutor said that the State's case against Mr Jones 'depends very much on Brenda Bentley having identified Jones as the person who is there at the toilet block with Mr Taylor' (ts 1042).
209 Counsel for Mr Jones noted the following aspects of Ms Bentley's evidence-in-chief:
(a) Ms Bentley gave evidence that she heard noises emanating from the toilet block. She then saw Mr Taylor chasing another man. Mr Taylor shouted abuse and threatened to stab the other man. Ms Bentley then walked to the toilet block to use the facilities. She saw Mr Taylor standing outside the male toilet.
(b) Ms Bentley said she heard Mr Taylor say to someone 'are you right, mate?' or 'are you right, mate. Let's go' (ts 382 - 383). She then saw a person who she asserted was Mr Jones leaving the toilets and meeting with Mr Taylor, before both men walked away together. Ms Bentley was unable to see whether either of the men was carrying anything (ts 385). She said Mr Jones was wearing a black T-shirt, with a print or motif on the front, and board shorts (ts 384).
(c) On 19 November 2013, Ms Bentley participated in a digiboard identification process conducted by the police. During that process she was shown two digiboards. She selected a photograph of Mr Jones, being the person she knew as 'Dan' (ts 387 - 390).
210 Mr Jones' defence counsel said in his opening address:
The accused Jones never went to the toilet with his co-accused. This was a public toilet. This facility he did use in the course of the evening, but was accompanied only by his dog. Mr Jones met his co-accused and then he went to the shops to get a feed for all of them. Mr Jones had a ute and, as I said, he was adjacent to Mr Taylor.
...
When the accused, Daniel Jones, used the toilet, he was in there for only 30 seconds. He never saw anyone else. There was no light. He had his dog with him when he went. He had no part, ladies and gentlemen, in the crime committed that night (ts 187 - 188).
211 Counsel for Mr Jones submitted that, against the background of Ms Bentley's evidence-in-chief, and having regard to:
(a) Mr Jones' video recorded interview with the police, in which he denied ever having gone to the toilet block with Mr Taylor; and
(b) the opening address of Mr Jones' defence counsel,
the question of whether Ms Bentley had correctly recognised Mr Jones as the person she saw leaving the toilet block, and then walking away with Mr Taylor, was of critical importance.
212 In particular, if the jury accepted that Ms Bentley had correctly recognised Mr Jones then it would have been a significant finding from which it would have been open to the jury to infer that Mr Jones was a party to the serious assault that had been inflicted on Mr Batchelor.
213 Counsel for Mr Jones accepted that Mr Jones' defence counsel was evidently aware of the need to cross-examine Ms Bentley for the purpose of undermining the reliability of her assertion that she had seen Mr Jones leaving the toilet block with Mr Taylor (ts 391 - 399).
214 However, according to counsel for Mr Jones, Mr Jones' defence counsel 'quite inexplicably' cross-examined Ms Bentley about something she had said to the prosecutor in proofing, but had not repeated in her evidence-in-chief (ts 401). That cross-examination had the effect of eliciting more damaging evidence from Ms Bentley that she had told the prosecutor, in proofing, that when she saw Mr Taylor outside the toilet block she had heard him say, 'that's enough, Dan. Let's go. Are you all right?' (emphasis added).
215 It was submitted that the damaging evidence which Mr Jones' defence counsel elicited from Ms Bentley did not occur in the course of what could be described, objectively, as 'a rational forensic choice'.
216 Counsel for Mr Jones submitted that, further and in any event, Mr Jones' defence counsel 'did not rest having elicited evidence that Ms Bentley had made a prior (and more damaging) statement to the prosecution during proofing'. After eliciting that evidence, defence counsel proceeded to adduce evidence from Ms Bentley that:
(a) she had in fact heard Mr Taylor say 'are you right, mate? That's enough, Dan' (ts 401); and
(b) she had in fact heard the word 'Dan' being used (ts 401 - 402).
217 According to counsel for Mr Jones, the cross-examination of Ms Bentley constituted a material irregularity. It was not able to be explained, on an objective analysis, as a result of a rational forensic decision or as having been pursued for a forensic advantage. Even if there was some forensic advantage, the advantage was slight in comparison with the obvious disadvantages. It was therefore asserted by counsel that, in view of the importance of Ms Bentley's evidence, there is a significant possibility that the irregularity affected the outcome and, accordingly, a miscarriage of justice occurred.
Mr Jones' appeal against conviction: ground 4: its merits
218 An offender who appeals against his or her conviction on the basis of an allegation that defence counsel was incompetent must demonstrate that defence counsel's conduct caused a miscarriage of justice. It is a heavy burden which is not easily discharged. See TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [74] (McHugh J).
219 This issue was examined in McMahon v The State of Western Australia [2010] WASCA 143. McLure P (Buss JA agreeing & Mazza J relevantly agreeing) said:
In this context, miscarriage of justice has two aspects, process and outcome. If the conduct of counsel has deprived the accused of a fair trial according to law, that will give rise to a miscarriage of justice without regard to whether counsel's conduct might have affected the outcome: TKWJ [76] (McHugh J); Nudd v The Queen [2006] HCA 9 [3] - [7] (Gleeson CJ). This corresponds with that limb of the proviso where there is a serious breach of the pre-suppositions of a trial: Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [46]; Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 373. A complete failure to cross-examine a complainant or a complete failure to address the jury may result in an unfair trial: TKWJ [76]. So too may wrong advice that an accused is not entitled to give evidence: Nudd [17].
In the majority of cases, irregular conduct of counsel will not deprive the appellant of a fair trial. In such circumstances, the ultimate question of whether a miscarriage of justice has occurred raises two issues. First, did counsel's conduct result in a material irregularity in the trial. Secondly, is there a significant possibility that the irregularity affected the outcome: TKWJ [79] (McHugh J); Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662 [18] (Hayne J).
The test of whether there is a material irregularity is objective: TKWJ [17], [27] - [28], [107]. Ordinarily, it is difficult to establish a material irregularity when the alleged error of counsel concerned forensic choices upon which competent counsel could have differing views: TKWJ [81]. However, if the error of counsel plainly affected the result of the trial, there will be a miscarriage even though the error involved a forensic choice or judgment. Where the error involves the failure to adduce evidence, there are parallels with the test for the admission of new or fresh evidence: TKWJ [32] (Gaudron J) [25] - [27].
See also KLM v The State of Western Australia [2009] WASCA 73; (2009) 194 A Crim R 503 [47] - [55] (Martin CJ, Le Miere AJA agreeing).
220 The Australian criminal justice system involves a contest between the State or the Crown and the accused. In general, the accused is bound by the conduct of his or her counsel. The accused's counsel has a broad discretion in the conduct of the defence. As Gleeson CJ (McInerney J agreeing) noted in R v Birks (1990) 19 NSWLR 677:
Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case (683).
See also TKWJ [8] (Gleeson CJ); R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [168] (Kirby J).
221 An apparently rational decision made by the accused's counsel in the course of the trial will not result in an unfair trial or a miscarriage of justice merely because it may appear then or later on appeal that the decision was not carefully considered, was unwise, or produced consequences which operated to the disadvantage of the accused. See Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115 [21] (Gaudron, Kirby & Callinan JJ); TKWJ [16] - [17] (Gleeson CJ), [95] (McHugh J), [107] (Hayne J, Gummow J agreeing).
222 An appellate court does not examine whether a decision taken by the accused's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage or avoiding a forensic disadvantage. Rather, the appellate court is concerned only with whether counsel's decision is capable of explanation on that basis. That is, could there be any reasonable explanation for the decision? The test is objective in character. See TKWJ [17] (Gleeson CJ), [27] (Gaudron J, Gummow J agreeing), [107] (Hayne J, Gummow J agreeing).
223 Ms Bentley said, in her evidence-in-chief, that:
(a) On 17 November 2013, she was staying at the reserve with her husband. She had been there for about a week.
(b) She met a man who was also staying at the reserve and who introduced himself as 'Dan'. (It was not put to Ms Bentley in cross-examination that the man who introduced himself as 'Dan' was not Mr Jones.)
(c) A few days later, she met another man who was also staying at the reserve and who introduced himself as 'Tayls'. (It was not put to Ms Bentley in cross-examination that the man who introduced himself as 'Tayls' was not Mr Taylor.)
(d) On the night in question, Mr Bentley heard a pinging noise coming from the toilet block, as if someone was striking a metal baseball bat against the wall.
(e) Ms Bentley walked towards the toilet block as she wanted to use the facilities. When she arrived at the toilet block she saw Mr Jones leave the toilet and meet with Mr Taylor (who was standing there). Both men looked at her as they walked away.
(f) A few days later, Ms Bentley identified both men in a digiboard identification process conducted by the police. Mr Taylor's defence counsel and Mr Jones' defence counsel accepted that Ms Bentley had correctly identified Mr Taylor as the man she knew as 'Tayls' and Mr Jones as the man she knew as 'Dan' (ts 387 - 390).
225 Accordingly, before the commencement of the trial, Mr Jones' defence counsel knew that Ms Bentley had previously identified Mr Jones as the man who had emerged from the toilet block and met with Mr Taylor.
226 Mr Taylor's defence counsel said, in his opening address, that:
(a) It was Mr Jones 'who struck Mr Batchelor with the pole of whatever material it was' and Mr Jones was 'the one who caused the head injuries' (ts 181).
(b) Mr Taylor 'did not touch Mr Batchelor at any stage other than when Mr Batchelor was lying on the ground already, as far as he could tell, knocked out, which is when [Mr Taylor] returned to the toilet' (ts 181).
(c) Mr Jones was in the toilet cubicle 'armed with something hard and something heavy, something that's capable of causing the fatal injuries to Mr Batchelor' (ts 182).
(d) The only person who could have inflicted the fatal injuries on Mr Batchelor was Mr Jones, and Mr Jones was responsible for Mr Batchelor's death (ts 183 - 184).
(e) Mr Taylor was 'now prepared to name [Mr Jones]' as the person who had inflicted the fatal injuries on Mr Batchelor, and Mr Taylor would 'tell you from the witness box ... because he doesn't want to be convicted of an offence he did not commit' (ts 185).
227 Accordingly, Mr Jones' defence counsel knew, upon the completion of Mr Taylor's defence counsel's opening address, that Mr Taylor would give evidence (as he in fact did) and would assert (as he in fact did) that Mr Jones was solely responsible for Mr Batchelor's death.
228 At all material times, Mr Jones' defence counsel also knew that Mr Taylor's defence counsel would cross-examine Ms Bentley after he had cross-examined her.
229 It was Mr Taylor's case at trial that he did not cause the head injuries which killed Mr Batchelor. Mr Taylor had followed Mr Y to Mr Y's vehicle while Mr Jones, 'armed with something hard and something heavy, something that's capable of causing the fatal injuries to Mr Batchelor' (ts 182), remained in the toilet block with Mr Batchelor.
230 In the circumstances, it would have been objectively reasonable for Mr Jones' defence counsel to proceed on the basis that Mr Taylor's defence counsel would be likely to elicit from Ms Bentley what she had said, in proofing, to the prosecutor, namely 'that's enough, Dan. Let's go. Are you all right?' (emphasis added).
231 That evidence would have been consistent with Mr Taylor's case, and would have advanced his interests, in that it would have reinforced his assertion that Mr Jones had remained in the toilet block with Mr Batchelor while Mr Taylor had pursued Mr Y towards the carpark and that Mr Jones, in Mr Taylor's absence, had caused the head injuries which resulted in Mr Batchelor's death.
232 Also, in the circumstances, it would have been objectively reasonable for Mr Jones' defence counsel to proceed on the basis that Mr Taylor's defence counsel would have considered it in Mr Taylor's interests for evidence to be given by an independent witness (namely Ms Bentley) which corroborated, at least to some extent, Mr Taylor's version of events that, for a period of time, Mr Jones had been alone in the toilet block with Mr Batchelor.
233 I am satisfied that, in the circumstances, it was objectively reasonable for Mr Jones' defence counsel to attempt to attack Ms Bentley's credibility and reliability as a witness by referring to her original police statement and challenging her addition to that statement, a substantial time later, that she had heard Mr Taylor call out 'Dan'. Although the strategy of endeavouring to undermine Ms Bentley's credibility and reliability may not ultimately have been successful, and although her cross-examination may not have been conducted as skilfully as others might have done, it was not objectively unreasonable for Mr Jones' defence counsel to form and act on the view that he should attempt to pre-empt or derail the likely approach of Mr Taylor's defence counsel in eliciting from Ms Bentley what she had said, in proofing, to the prosecutor.
234 In my opinion, Mr Jones' defence counsel's conduct in his cross-examination of Ms Bentley did not constitute a material irregularity. There was a reasonable explanation for the impugned decision. In any event, generally for the reasons I will give in considering the application of the proviso in s 30(4) of the Criminal Appeals Act 2004 (WA), even if the conduct of Mr Jones' defence counsel resulted in a material irregularity in the trial, there is no significant possibility that the irregularity affected the outcome.
Mr Jones' appeal against conviction: ground 5
236 The submissions made by counsel for Mr Jones in support of his ground 5 were not materially different from the submissions made by counsel for Mr Taylor in support of his ground 1.
237 In my opinion, ground 5 is without merit. I am of that opinion generally for the reasons I have given in relation to ground 1 of Mr Taylor's appeal against conviction.
Mr Taylor's and Mr Jones' appeals against conviction: the proviso
239 Each of the parties made submissions in relation to the application of the proviso in s 30(4) of the Criminal Appeals Act in the event the court decided that one or more of Mr Taylor's or Mr Jones' grounds of appeal had been made out.
240 Although I have concluded that none of the grounds of appeal has been made out, I will, for the sake of completeness, consider whether a substantial miscarriage of justice has actually occurred if, contrary to my opinion, any of the grounds has merit.
Mr Taylor's and Mr Jones' appeals against conviction: the principles governing the application of the proviso
241 Section 30(3) of the Criminal Appeals Act provides that this court must allow an appeal against conviction by an offender if, in its opinion:
(a) the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported; or
(b) the conviction should be set aside because of a wrong decision on a question of law by the judge; or
243 In Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92, French CJ, Gummow, Hayne and Crennan JJ reiterated that an appellate court must undertake the task of determining whether to apply the proviso to the Australian common form criminal appeal statute in the same manner as it would decide whether the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence [27]. The task of determining whether no substantial miscarriage of justice has actually occurred must be undertaken on the whole of the trial record including the jury's verdict of guilty [27]. Their Honours then made two further points. First, the appellate court, in assessing the significance to be given to the jury's verdict of guilty, must pay proper regard to the issues the jury were directed to decide in order to arrive at a verdict of guilty [28]. Secondly, the statement by Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [44], that the proviso cannot be engaged 'unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty', is a negative proposition [29]. The statement enunciates a necessary but not sufficient condition for the application of the proviso. French CJ, Gummow, Hayne and Crennan JJ observed in Baiada Poultry:
As this Court's decision in AK v Western Australia ((2008) [2008] HCA 8; 232 CLR 438 at 457 [58]) shows, demonstration that a chain of reasoning can be articulated that would require the verdict reached at trial does not always permit, let alone require, the conclusion that no substantial miscarriage of justice actually occurred [29].
See also Reeves v The Queen [2013] HCA 57; (2013) 88 ALJR 215 [50] - [51] (French CJ, Crennan, Bell & Keane JJ).
244 In Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47, French CJ, Bell, Keane and Nettle JJ said that the phrase 'substantial miscarriage of justice', in this context, means that 'the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open to him or her (Pollock v The Queen [2010] HCA 35; (2010) 242 CLR 233 at 252 [70]) or that there was some other departure from a trial according to law that warrants that description (Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92 at 102 - 103 [22] - [23] per French CJ, Gummow, Hayne and Crennan JJ; see, eg, AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438 at 456 - 457 [57] - [59] per Gummow and Hayne JJ; at 482 [109] - [110] per Heydon J)' [15].
245 It is unnecessary, in the present case, to consider whether there is any material difference or inconsistency between the approach to the proviso mandated by Weiss, on the one hand, and the observations of the plurality in Filippou as to the meaning of the phrase 'substantial miscarriage of justice' in the context of the proviso, on the other. See the views expressed by McLure P in Petersen v The State of Western Australia [2016] WASCA 66; (2016) 50 WAR 45 [16] - [27]. If there is any material difference or inconsistency it is of no consequence in the present case.
Mr Taylor's and Mr Jones' appeals against conviction: the application of the proviso
246 I will begin my consideration of the application of the proviso by setting out some of the relevant features of the evidence adduced at the trial.
(a) Mr Y had been to the reserve a few times before the early hours of 17 November 2013 to have drinks and engage in homosexual sex (ts 194).
(b) The reserve was a well-known place for men who wanted to have homosexual sex with strangers (ts 195).
(c) Mr Y was at the reserve on an occasion about three days before the night in question (ts 195). He noticed two men on the left hand side of the carpark (ts 198). One man had long hair with a goatee. His hair was mousey/sandy/grey. His build was 'straight up and down'. He was about 5 foot 8 inches or 5 foot 9 inches in height. The other man was 'plumpish'. He had short brown hair (ts 199 - 200).
(d) On the night in question, Mr Y drove to the reserve with a friend, LG. They arrived at about 1.00 am (ts 201).
(e) After parking his car, Mr Y saw Mr Batchelor (whom he referred to in evidence as the Indian man) walk to the toilet block. Mr Y followed him with a view to engaging in sexual activity (ts 212).
(f) Mr Y and the Indian man went into a toilet cubicle (ts 215). The Indian man was on his knees, about to perform oral sex on Mr Y, when Mr Y heard a loud bang at the door of the cubicle (ts 216). About 10 or 15 seconds later the door was 'booted in' (ts 217).
(g) The first man who entered the cubicle had long hair and a goatee. He came into the toilet with force, aggression and anger. The Indian man, who was on his knees, spun around. The first man 'king hit him' and knocked him to the ground (ts 217).
(h) The second man who entered the cubicle was directly behind the first man. The second man had a pole. He had short hair and was not as 'skinny' as the first man. He was 'a little bit roundish' (ts 218).
(i) The first man and the second man walked into the cubicle together (ts 219).
(j) The first man hit the Indian man in the face with his fist and the Indian man dropped to the ground instantly (ts 218).
(k) The first man was punching and kicking the Indian man with a lot of aggression and force. He stomped, kicked, booted and punched the Indian man when the Indian man was on the ground. The Indian man was knocked out (ts 219).
(l) The second man was hitting the Indian man with the pole (ts 219).
(m) Mr Y did not see on which part of the Indian man's body the punches and kicks landed (ts 219).
(n) The first man was doing all of the punching and kicking. The second man was hitting the Indian man with the pole (ts 220).
(o) Mr Y did not see on which part of the Indian man's body he was struck with the pole. Mr Y could hear the 'thuds' and he knew instantly that the Indian man was being hit with 'something really hard' (ts 220).
(p) Mr Y 'backed up' into the corner of the cubicle near the toilet (ts 220). The two men then turned their attention to him (ts 222).
(q) The first man said 'my fucking kids are ... at this facility' (ts 222). The first man 'pulled out ... quite a large knife' (ts 222). It was 'a larger butcher's knife' (ts 222).
(r) The first man hit Mr Y behind the left ear (ts 223).
(s) The second man came from behind the first man and hit Mr Y on his right arm with the pole. His arm was protecting his face (ts 224).
(t) Mr Y charged at the second man and managed to escape from the cubicle (ts 225). He ran from the toilet block to his vehicle and drove away (ts 226 - 227).
(u) When Mr Y escaped from the cubicle, the Indian man was on the floor and was not moving (ts 232).
(v) As he ran from the toilet block, Mr Y looked behind. The first man had exited the toilet block and was shouting 'come back here so I can fuck you up' (ts 232).
248 Mr Y said, in cross-examination by defence counsel for Mr Taylor:
(a) The man with the long hair and goatee (the first man) was not on his own when he came through the toilet door. The two men were 'right in ... that toilet' (ts 267).
(b) Mr Y did not leave the toilet cubicle immediately after the two men entered (ts 269).
(c) Mr Y did not leave the cubicle before anything happened to Mr Batchelor (ts 270).
(d) The man with the pole (the second man) was not at the outer entrance to the male toilet when Mr Y ran out (ts 271 - 272).
(e) Mr Y was standing near the sink when he was struck by the pole. The second man with the pole was near the basin protecting and covering the toilet door (ts 274).
(f) Mr Y was '110 per cent' sure that there was a second man in the cubicle who was armed with a pole (ts 278).
(g) Mr Y rejected the proposition that he ran out of the cubicle immediately upon the two men entering and that he did not see what happened to Mr Batchelor. According to Mr Y, 'I know for a fact that I saw these two guys in that cubicle bashing this guy' (ts 281 - 282).
(h) The cubicle was not 'completely lit up'. Mr Y could see the second man, but 'not ... in full' (ts 285).
249 Mr Y said, in cross-examination by defence counsel for Mr Jones, that before he and Mr Batchelor were attacked he had 'a tiny sniff' of Amyl nitrate, but that did not affect his ability to 'see and feel ... what was going on' (ts 238 - 239).
250 Mr Y said in re-examination that he could remember the second man's physique. He could see his face, but not the 'full range of his face' (ts 285).
(a) After LG and Mr Y arrived at the reserve on the night in question, Mr Y went to the toilet block. LG saw him go inside. LG sat on the bonnet of Mr Y's car (ts 305).
(b) About 10 minutes later, LG heard a 'huge bang'. It sounded like 'someone booting a door in' (ts 305).
(c) LG heard shouting and screaming. He heard Mr Y's voice. There was more than one voice (ts 306).
(d) Next, Mr Y ran from the toilet block and shouted 'get in the car, get in the car. There's a man trying to kill me' (ts 306).
(e) A 'bloke' who had 'mousey-coloured long hair with [a] goatee' was running after Mr Y (ts 306).
(f) LG had seen that man earlier. He had been standing near a caravan (ts 306).
(g) Mr Y told LG that the man who was chasing him had a knife (ts 307). LG saw 'something sharp'. He thought it was in the 'right side of [the man's] hand' (ts 307).
(h) LG and Mr Y 'jumped straight in the car' and 'drove out of the reserve' (ts 307).
(i) It took about 20 to 30 seconds to exit the carpark. As they were leaving the carpark, the man who had the knife was 'still standing there holding the knife' (ts 319).
252 At the material time, Brendon Wood was employed as a tour bus driver. On the night in question, he completed a job involving the carriage of people in a bus to Northbridge. Mr Wood left Northbridge at about midnight. He drove the bus to Armadale and arrived at about 1.00 am. Mr Wood then left Armadale in his car to drive home (ts 320 - 321).
(a) On his way home, Mr Wood was driving in the vicinity of the reserve when he noticed a fire. He drove into the carpark to 'check the fire' (ts 321 - 322).
(b) Mr Wood saw, without leaving his vehicle, that it was merely a small camp fire. The time was about 1.45 am (ts 323).
(c) A man approached Mr Wood while Mr Wood was sitting in his vehicle. The man was reasonably thin, about 6 foot in height, had a 'longish, middling sort of ... goatee' and was not cleanly shaven. He asked Mr Wood what he was doing. Mr Wood explained that he had 'come down to check out the fire' (ts 324).
(d) Mr Wood then heard another man, who had 'shorter hair' and was 'a stockier sort of gent', say, 'you're all right, mate' (ts 324).
(e) Mr Wood alighted from his vehicle because he was 'busting to go to the toilet'. He walked to the river's edge and urinated. After he returned to his vehicle, Mr Wood heard 'quite a lot of commotion' which 'sounded like someone hitting something and hitting it quite loud' (ts 327).
(f) Mr Wood heard that commotion 'closer to 2 o'clock'. It sounded, initially, like 'someone beating ... a piece of metal or beating something solid'. He heard about 10 to 12 of those sounds. The sounds were 'definitely coming ... from the toilet block area'. He heard the sound of 'a person's yelping'. It sounded like a human who was being beaten and in pain. Before the commotion started Mr Wood heard a male voice, which sounded very similar to the voice of the man he had spoken to when he arrived in the carpark, who was yelling 'get out of here, along those lines'. After hearing the commotion Mr Wood left the carpark in his vehicle (ts 330 - 331).
254 I have already recounted various aspects of Ms Bentley's evidence. In addition, I note the following:
(a) On most occasions that Ms Bentley saw 'Dan' at the reserve, he was accompanied by his dog. She saw him once or twice without the dog (ts 392 - 393).
(b) Ms Bentley said, in cross-examination by Mr Taylor's defence counsel, that the interval between when she first saw Mr Taylor running from the toilet block and when she saw him 'back at the corner of the toilets' was probably 'a minute'. After he returned to the corner of the toilet block, Mr Taylor said 'something directed into the toilet block' and 'a few seconds later Dan came out'. Ms Bentley did not see 'Dan' with 'anything in his hands' (ts 412).
(c) Ms Bentley said, in cross-examination by Mr Jones' defence counsel, that at the toilet block she heard 'Tayls' say, 'that's enough, Dan. Let's go. Are you right?'. When 'Tayls' said that, 'Dan was coming out of the toilet right direct to Tayls'. As 'Tayls' and 'Dan' walked away from the toilet block, Ms Bentley was 'surprised they didn't say hello cos Dan always says hello'. 'Dan' 'just turned around and looked at me and just kept walking' and she thought 'that was weird'. 'Dan' knew who she was. The expression on his face was 'like in shock to see me standing there' (ts 401 - 404).
255 Ms Bentley's husband, Ronald Bentley, gave the following evidence:
(a) Mr Bentley met 'Dan' at the reserve a couple of days before the night in question (ts 419).
(b) On the night in question, Mr Bentley was asleep in the back of his utility when he heard a 'disturbance in the toilets'. It was 'a thudding, pinging noise sort of ... like a metal noise'. It was 'a thudding sort of pinging noise'. The sound appeared to be coming from the toilets (ts 422).
(c) Mr Bentley then heard someone, who was running, say, 'he's got a knife, he's got a knife', and someone yelling after him, 'come here, you faggots' or something of that nature (ts 423).
(d) The man who was chasing the other man was tall. Mr Bentley thought he had 'a goatee, curly hair, sort of pretty dark' (ts 424).
(e) Mr Bentley saw Mr Jones two days before the night in question. Mr Jones was accompanied by his dog. The dog was with him 'all the time' (ts 436 - 437).
256 At the material time, Ms Zinni was staying at the reserve. She gave the following evidence:
(a) About three days before the night in question, Ms Zinni became aware of a man who was staying at the reserve. He arrived at the reserve in a utility with a trailer. He had a dog. The man had 'a bit of a goatee' and a 'beer belly'. She thought his hair was brown in colour (ts 457 - 458).
(b) On the night in question, Ms Zinni went to sleep in the back of her utility in the carpark. She awoke and heard a man screaming, 'he's got a knife. He's going to stab me'. The man was running as he was screaming. She heard another voice saying, 'are you all right, mate?'. She saw a number of cars leaving the carpark (ts 478 - 479).
(c) The man who was running from the toilets and being chased was an Aboriginal man. After she saw the Aboriginal man running, she heard the other man say, 'you all right, mate?', 'not long after. Probably seconds, may be a minute' (ts 497 - 498).
(d) The last time Ms Zinni saw the dog was three days before the night in question. She did not remember seeing the dog at any other time (ts 497).
257 KT is Mr Taylor's daughter. She was born on 24 July 2004. When her pre-recorded evidence was taken on 19 February 2015, she was aged 10. KT gave evidence that at the material time she was staying with her father in a caravan near the Swan River (pre-recorded evidence ts 33 - 34). She met a man called Dan (ts 34). He was staying in his car (ts 34). There was a trailer attached to the car (ts 34). He had a dog (ts 34). KT saw her father walk in the direction of the toilet block with Dan (ts 44). A little later, she said, 'I saw Dan go and then I saw dad go', and she was 'not sure if they were ... together' but she 'saw them go' (ts 46). When her father returned, KT said he mentioned 'something about a knife', and someone 'getting whipped by a pole' and someone being 'half dead in the toilet' with 'his pants down to his knees' and there being 'blood over the floor or something' (ts 47). However, KT's answers in cross-examination indicated some uncertainty about the timing and content of those alleged statements by her father (ts 57 - 59).
258 Mr Taylor said in cross-examination that KT had 'problems with her memory' (ts 921). According to Mr Taylor, it was 'actually an illness she has' (ts 922). Mr Taylor denied having mentioned to KT 'something about a knife' or someone 'getting whipped by a pole' or someone being 'half dead in the toilet' with 'pants down to his knees' or there being 'blood everywhere' (ts 983 - 987). Mr Taylor asserted in cross-examination that KT may have overheard him shouting that he (Mr Taylor) had been whipped by a pole wielded by Mr Jones (ts 985 - 986) and KT may have mentioned 'a knife, a fishing knife' to him (ts 986).
259 ET is Mr Taylor's son. He was born on 9 August 2005. When his pre-recorded evidence was taken on 19 February 2015, he was aged 9. ET gave evidence that he was near a camp fire when his father told him to get into the caravan (pre-recorded evidence ts 86). His father then walked away with his mate (ts 86).
260 Dr John Aquilina, a medical practitioner, treated Mr Y on 18 November 2013. Dr Aquilina observed swelling and bruising to Mr Y's right forearm and swelling and bruising on the left side of his head. The injuries were compatible with being hit by a pole (ts 444). The most compatible injury with being hit by a pole was to Mr Y's forearm. It was compatible with a single blow (ts 451).
261 I have already summarised the evidence given by Dr Moss. It is unnecessary to refer to Dr Fabian's evidence.
262 As I have mentioned, Mr Taylor participated in two video-recorded interviews with the police. Also, as I have mentioned, Mr Taylor gave sworn evidence at the trial. I have already summarised Mr Taylor's version of events in the interviews and his sworn evidence at the trial. The prosecutor tendered the video-recorded interviews and they became exhibits 28 and 30.
263 As I have mentioned, Mr Jones participated in a video-recorded interview with the police. Also, as I have mentioned, Mr Jones did not give evidence at the trial. I have already summarised Mr Jones' version of events in the interview. The prosecutor tendered the video-recorded interview and it became exhibit 25.
264 I am satisfied, on my examination of the trial record and after weighing the evidence, that the State proved beyond reasonable doubt that each of Mr Taylor and Mr Jones murdered Mr Batchelor.
265 It is not possible, from my examination of the trial record and after weighing the evidence, to determine which of Mr Taylor and Mr Jones inflicted the blow or blows to Mr Batchelor's head which resulted in his death. Also, I am not satisfied to the requisite standard that either Mr Taylor or Mr Jones intended to cause Mr Batchelor's death.
266 However, I am satisfied beyond reasonable doubt that:
(a) on the night in question both Mr Taylor and Mr Jones were angry because men were using the toilet block to engage in sexual activity;
(b) both Mr Taylor and Mr Jones were hostile towards the men who used the toilet block for that purpose;
(c) both Mr Taylor and Mr Jones went into the toilet cubicle occupied by Mr Batchelor and Mr Y, armed with weapons, and with the common intention and purpose of using violence, with weapons, against them;
(d) Mr Taylor was armed with a knife (although he did not use this weapon to attack Mr Batchelor) and Mr Jones was armed with a metal pole;
(e) each of Mr Taylor and Mr Jones did acts, pursuant to their common intention and purpose, which involved violently assaulting Mr Batchelor;
(f) Mr Taylor assaulted Mr Batchelor with his fists and his feet;
(g) Mr Jones assaulted Mr Batchelor with the metal pole;
(h) one of Mr Taylor and Mr Jones (the principal) killed Mr Batchelor with the intention of causing him a bodily injury of such a nature as to endanger, or be likely to endanger, his life;
(i) the other of them (the aider) had actual knowledge of the essential facts constituting the offence of murder that was being or about to be committed by the principal; the aider did things with the intention of aiding or assisting the principal in the doing of the acts which constituted the offence of murder; and what the aider did actually aided or assisted the principal to commit or in committing the offence of murder;
(j) the principal caused Mr Batchelor's death, directly or indirectly, by his acts; and
(k) Mr Batchelor's murder was committed in the prosecution by Mr Taylor and Mr Jones of their common intention and purpose, and the offence of murder was of such a nature that its commission was an objective probable consequence of the prosecution by Mr Taylor and Mr Jones of their common intention and purpose.
267 Further, I am satisfied beyond reasonable doubt that the killing of Mr Batchelor was not authorised or justified or excused by law.
268 On my examination of the trial record and after weighing the evidence, the only conclusion reasonably open is that each of Mr Taylor and Mr Jones was guilty of murder. No other reasonable conclusion is open on the trial record as a whole.
(a) the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence; and
(b) the jury's advantage in having seen and heard the witnesses,
I do not have a reasonable doubt as to Mr Taylor's or Mr Jones' guilt on the count of murder pleaded in the trial indictment or as to the correctness of their convictions on that count. I remain of that view even if, contrary to my opinion, there is merit in any of the grounds of appeal relied on by Mr Taylor and Mr Jones.
270 I am satisfied beyond reasonable doubt that no substantial miscarriage of justice has in fact occurred. First, as I have mentioned, I am persuaded to the criminal standard of proof, on my examination of the trial record and after weighing the evidence, as to Mr Taylor's and Mr Jones' guilt on the charge of murder. The jury properly rejected Mr Taylor's and Mr Jones' defences, including Mr Taylor's exculpatory statements and account of events in his video-recorded interviews and his sworn evidence at the trial and, also, Mr Jones' exculpatory statements and account of events in his video-recorded interview. I am persuaded to the criminal standard that neither Mr Taylor nor Mr Jones has been denied a chance of acquittal that was fairly open to him. Secondly, I am satisfied that even if, contrary to my opinion, there is any merit in any of the grounds of appeal, nothing at or in the conduct of the trial precludes this court from deciding that no substantial miscarriage of justice has in fact occurred. The proviso is able to be engaged.
Mr Taylor's and Mr Jones' appeals against conviction: the outcome of the appeals and the appropriate orders
271 As to Mr Taylor's appeal against conviction, I would refuse leave to appeal on grounds 2 and 3 and grant leave to appeal on ground 4. The appeal should be dismissed.
272 As to Mr Jones' appeal against conviction, I would refuse leave to appeal on grounds 2, 3 and 4 and grant leave to appeal on ground 5. The appeal should be dismissed.
Mr Jones' appeal against sentence: the sentences imposed by the trial judge
273 On 17 April 2015, the trial judge sentenced each of Mr Taylor and Mr Jones to life imprisonment with a minimum non-parole period of 21 years. The sentences were backdated to 17 November 2013, being the date on which Mr Taylor and Mr Jones were taken into custody for the offence.
Mr Jones' appeal against sentence: the ground of appeal
274 Mr Jones' sole ground of appeal alleges that the minimum non-parole period of 21 years was manifestly excessive.
275 Mr Jones does not challenge any of the trial judge's findings of fact made for the purpose of sentencing.
276 On 23 August 2015, Mazza JA referred the application for leave to appeal to the hearing of the appeal.
Mr Jones' appeal against sentence: Mr Jones' personal circumstances and the trial judge's sentencing remarks
277 The trial judge was satisfied that Mr Taylor and Mr Jones were angry with the homosexual men who frequented the reserve and with the sexual activity that occurred in the toilet block. Her Honour found that Mr Taylor and Mr Jones formed the intention late on the night of 16 November 2013 or early in the morning of 17 November 2013 to arm themselves and to assault the occupant or occupants of the male toilet [6].
278 Her Honour also made the following findings of fact, in her sentencing remarks, as to the circumstances of the offending:
The victim, Mr Batchelor, a slightly built man who was then aged 48, had arrived at the Middle Swan Reserve in the early hours of Sunday, 17 November 2013. He parked his car near the toilet block and walked into the male disabled toilet cubicle. Another man who, for the sake of his privacy, I will refer to as the surviving victim, had seen Mr Batchelor arrive and had decided to approach him with a view to having a sexual encounter with him.
The surviving victim walked over to the toilet block, went inside the cubicle, which Mr Batchelor was already in, and locked the door. After a short time the two men commenced to engage in consensual sexual activity. They took some amyl nitrate, but I do not accept that it affected the surviving victim's ability to recall what then happened.
When those two men were in the cubicle, you, Taylor, had armed yourself with a black-handled knife with a blade approximately 18 cm long. You had put the knife down the back of your pants. You, Jones, had armed yourself with a pole of some description. The two of you walked to the toilet block and went inside. The surviving victim heard a loud bang on the door of the cubicle which he and Mr Batchelor were in. Ten or 15 seconds later you, Taylor, kicked the door of the cubicle so that the lock was bent and the door flew open. You, Taylor, immediately started yelling at the occupants of the cubicle. You were aggressive and angry. Mr Batchelor was likely on his knees at that point. As you came in he got up and turned to face the door.
You, Taylor, said something to the effect of 'Get up, you fucking faggots' and you then punched Mr Batchelor. Mr Batchelor dropped to the ground and may have then been knocked out. The two of you then repeatedly punched and kicked Mr Batchelor. You, Jones, then started hitting Mr Batchelor with the pole. Mr Batchelor was either unconscious or so injured that he was unable to defend himself or get up and try to leave the cubicle.
The surviving victim was not able to immediately leave the cubicle because you and Mr Batchelor were between him and the door. You, Taylor, then turned to him and you hit him behind his left ear. You shouted at the surviving victim that your children were at the reserve. After that you pulled the knife out of your pants and you held it in a way that made the surviving victim think that you were going to stab him with it.
You, Jones, then approached the surviving victim and hit him with the pole. At that point the victim had his arms up in front of his face in order to protect it and the pole hit him on the back of the right forearm. The surviving victim estimates that he was hit five or six times with aggressive force. In a frenetic confrontation of this type it is difficult for a witness to know exactly how many times they have been hit. However, I accept that you, Jones, hit the surviving victim more than once with the pole and that he received significant bruising and a small cut as a result.
In fear of his life he barged his way out of the cubicle. He ran out of the toilet block in the direction of his car. You, Taylor, followed him out and walked in the same direction. You were still holding the knife and yelling abusive and threatening words at the surviving victim. As the surviving victim left the toilet block and ran to his car he was yelling that you had a knife. As a result, all the men who were at the reserve got into their cars, including the surviving victim and left.
You, Taylor, followed the surviving victim until he had got into his car and was driving out of the reserve. That left you, Jones, in the toilet cubicle with Mr Batchelor. It may be that you continued to assault him when you were alone in the cubicle. I do not know.
After the surviving victim had left the reserve you, Taylor, returned to the toilet block. At around that time you, Jones, were coming out of the toilet block. You were both seen by another person who was camping at the reserve.
You then walked off in the direction of the caravan. This left Mr Batchelor injured in the toilet cubicle. After a short while he got up and staggered to his car. Another camper went to his aid to see if he was all right. At that point Mr Batchelor was on his feet, but he soon collapsed, unconscious beside his car.
...
Once the two of you returned to the area of the caravan you disposed of your weapons. The knife was thrown into the Swan River. I make no definitive finding as to what occurred to the pole. You, Taylor, say that it was burnt. That is a reasonable possibility, but there are other reasonable possibilities open too. What is known is that it was disposed of so that it has not been found by the police [7] - [16], [19].
279 The trial judge was satisfied that Mr Taylor and Mr Jones went into the toilet cubicle armed with weapons and with the common intention of seriously assaulting whoever they found inside the cubicle. Both of them assaulted Mr Batchelor. Mr Jones assaulted him with his fists and feet and with the pole he was carrying [24].
280 Her Honour was unable to determine which of Mr Taylor and Mr Jones inflicted the blow or blows which resulted in Mr Batchelor's death. However, her Honour said 'that matters little as either each of you killed Mr Batchelor intending to cause a bodily injury which endangered his life or you aided the other to kill Mr Batchelor knowing that the other person intended to cause such a bodily injury' [25]. Her Honour elaborated:
It follows from what I have just said that I will not sentence either of you on the basis that you had an intention to kill Mr Batchelor. I am not satisfied beyond reasonable doubt that such an intention has been proven. It is reasonably possible that each of you intended only to give him a very severe beating. Again, in my view, it makes little difference given the severity of the injuries you inflicted, the gross disregard you each had for Mr Batchelor's life and the fact that you each left him injured without any regard for whether he lived or died [26].
281 The trial judge referred to a joint victim impact statement she had received from Mr Batchelor's father, mother and sister. Each of them has suffered significant trauma as a result of his violent death. In particular, his mother has suffered severe health problems [30] - [32].
282 Mr Jones was born on 23 January 1978. At the time of sentencing, he was aged 37. He has a partner and two children aged 10 and 14.
283 Mr Jones had a deprived childhood. It was marked by violence. At an early age he left home and, for a time, lived on the streets. However, after becoming an adult Mr Jones reconnected with his father and they now have a good relationship.
284 Mr Jones completed schooling to year 10 while he was in juvenile detention. Upon release, he completed formal training as a boilermaker welder. He worked in this trade until about a month before his arrest on the offence in question. He had ceased employment because he intended to enter a residential facility for the treatment of an alcohol abuse problem.
285 Mr Jones commenced using amphetamines at the age of 13 and heroin at the age of 17. He was a heroin addict for a long time. About three years before he was sentenced, Mr Jones commenced methadone treatment.
286 Mr Jones has an extensive prior criminal record. He has previously been imprisoned. In 2002, he was sentenced to 5 years 6 months' imprisonment for the sexual penetration of a child under the age of 16. After his release from prison he committed many traffic offences. In 2008, Mr Jones was sentenced to a significant term of imprisonment for stealing, assault occasioning bodily harm and aggravated burglary.
287 Her Honour noted that personal deterrence was a relevant sentencing consideration.
288 Mr Jones continued to deny his involvement in the murder of Mr Batchelor. He had not shown any remorse.
289 The trial judge was satisfied that Mr Taylor and Mr Jones were motivated in their offending by prejudice and hostility towards the homosexual men at the reserve [52].
290 Her Honour concluded that the offending was at 'the high end of the range of seriousness of murders involving an intention to cause a life endangering injury'. Her Honour rejected a submission made on behalf of Mr Jones that he was 'to some extent provoked by the behaviour of the men at the reserve'. She found that neither Mr Batchelor nor Mr Y had done anything to provoke an assault on them [57].
291 The trial judge said that general deterrence was a relevant sentencing factor. It was important for people to know that 'a significant penalty would be imposed if they used violence in an attempt to stop behaviour of which they do not approve or to punish those who are doing it, rather than reporting the behaviour to the proper authorities' [58].
Mr Jones' appeal against sentence: its merits
292 A ground of appeal which alleges that a sentence (including a minimum term) is manifestly excessive asserts the existence of an implied or inferred error.
293 It is necessary, in determining whether a minimum term is manifestly excessive, to examine it from the perspective of the principles applicable to the fixing of the length of a non-parole period and the factors which a sentencing judge must take into account when fixing a minimum term. Relevant factors include the maximum penalty for the offence, any upper or lower limits on the available minimum term, the standards of sentencing customarily observed with respect to minimum terms for that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal antecedents of the offender.
294 A non-parole period is the minimum period of imprisonment that justice requires the offender to serve. It mitigates the offender's punishment in favour of rehabilitation through conditional freedom after imprisonment for the minimum period. See Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 628 - 629 (Barwick CJ, Menzies, Stephen & Mason JJ); Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367, 367 (Gibbs CJ, Murphy, Wilson, Brennan & Dawson JJ); Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 530 - 531 (Mason CJ & McHugh J), 536 (Dawson, Toohey & Gaudron JJ).
295 In Pedersen v The State of Western Australia [2010] WASCA 175, I made a number of observations (McLure P & Mazza J agreeing) about the determination of the minimum non-parole period where an offender is to be sentenced to life imprisonment for the offence of murder, and the sentencing court has decided (as in the present case) to proceed under s 90(1)(a) of the Sentencing Act and fix a minimum period. It is unnecessary to repeat those observations.
296 The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a non-parole period is within the range of other non-parole periods imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a non-parole period is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
297 A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether a sentence (including a minimum term) is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
298 When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
299 The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
300 I have reviewed numerous cases in which this court has heard and determined appeals against sentence for murder since the commencement of the Criminal Law Amendment (Homicide) Act 2008 (WA). I have taken into account the sentencing dispositions in Atherden v The State of Western Australia [2010] WASCA 33; Butler v The State of Western Australia [2010] WASCA 104; Austic v The State of Western Australia [2010] WASCA 110; Pedersen; The State of Western Australia v O'Kane [2011] WASCA 24; The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285; Cockram v The State of Western Australia [2011] WASCA 179; Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91; Johnston v The State of Western Australia [2012] WASCA 18; Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328; Khan v The State of Western Australia [2013] WASCA 193; The State of Western Australia v Lee [2013] WASCA 246; Silva v The State of Western Australia [2013] WASCA 278; Prestidge v The State of Western Australia [2014] WASCA 16; Rosewood v The State of Western Australia [2014] WASCA 21; Stinson v The State of Western Australia [2014] WASCA 72; Mack v The State of Western Australia [2014] WASCA 207; Angliss v The State of Western Australia [2015] WASCA 8; The State of Western Australia v Smith [2015] WASCA 87; Zwerus v The State of Western Australia [2015] WASCA 174; The State of Western Australia v Churchill [2015] WASCA 257; Crossland v The State of Western Australia [2016] WASCA 93; and Corbett v The State of Western Australia [2016] WASCA 97. It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.
301 In my opinion, there is no doubt that the murder committed by Mr Jones was a serious example of offending of that kind. The trial judge was correct in concluding that the offending was at the high end of the range of seriousness of murders involving an intention to cause a life endangering injury.
302 There was little to mitigate the seriousness of Mr Jones' offence. He did not have the mitigation that a plea of guilty would have brought. He continued to deny that he was involved in the murder. He therefore did not evince any remorse or victim empathy. Her Honour acknowledged that Mr Jones had made some admissions which narrowed the issues at the trial. She gave him credit for those admissions. Mr Jones did not have the mitigation of youth. His prior criminal record, and any failure of previous sentences to achieve the purpose for which they were imposed, did not, of course, aggravate the current offending, but his record demonstrated that he was not of prior good character.
303 I am satisfied that the objective seriousness of Mr Jones' offending, and the important sentencing considerations of appropriate punishment and personal and general deterrence, precluded the imposition of a lesser minimum non-parole period.
304 In my opinion, after taking into account and evaluating all relevant facts and circumstances (including the trial judge's unchallenged findings of fact), and all relevant principles relating to the imposition of a minimum non-parole period and the factors (including the reasonably comparable cases) which a sentencing judge must take into account when fixing a minimum non-parole period, the minimum term of 21 years was within the range open to her Honour on a proper exercise of her discretion. The length of the minimum non-parole period was not unreasonable or plainly unjust. In all the circumstances, the interests of justice did not require the imposition of a lesser minimum non-parole period. Error in the exercise of her Honour's discretion should not be inferred from the sentencing outcome.
Mr Jones' appeal against sentence: the outcome of the appeal and the appropriate orders
306 I would refuse leave to appeal. Mr Jones' appeal against sentence should be dismissed.
307 MAZZA JA: I have had the advantage of reading in draft the reasons for decision of Buss P and Mitchell JA. In my opinion, each of Mr Taylor's and Mr Jones' appeals must be dismissed. I agree with the orders proposed by Buss P. Save for what follows, I agree with Buss P's reasons.
308 My point of difference with Buss P is in respect of Mr Taylor's ground 1 and Mr Jones' ground 5 in their appeals against conviction, the latter ground being, in substance, a mirror of the former. I would uphold these grounds. However, I would apply the proviso in s 30(4) of the Criminal Appeals Act 2004 (WA) in each case.
309 The grounds concern the adequacy of her Honour's directions with respect to s 7(b) and s 7(c) of the Criminal Code (WA). All of the necessary background is set out in Buss P's reasons.
310 It is well established that liability under s 7(b) and s 7(c) of the Criminal Code requires the State to prove beyond reasonable doubt four matters, being:
See Ritchie v The State of Western Australia [2016] WASCA 134 [84] (McLure P; Buss JA relevantly generally agreeing & Mazza JA relevantly agreeing).
311 In the present case, her Honour explicitly directed the jury with respect to the first, second and fourth matters, but not the requirement of intention. The absence of an explicit direction may not require the conclusion that the grounds must be upheld. This is because it may be
that her Honour's various directions on aiding when read as a whole could be understood as amounting to an adequate direction on the subject. The relevant directions are those identified by Buss P in his reasons. His Honour has concluded that the directions were, in combination, adequate to convey to the jury the requirement of intention.
312 I have respectfully come to a different conclusion. I have done so having regard to the combination of three factors. First, while I acknowledge that some of what her Honour said in her summing up may be construed as an instruction to the jury as to the requirement of intention, I do not consider the directions, when read as a whole, to have been sufficiently clear to convey the need for the jury to be satisfied that the State established beyond reasonable doubt the requirement of intention. Second, the directions given by her Honour (including the examples she gave to the jury) were similar in their terms and effect to those she gave in Ritchie which this court found to be inadequate in the circumstances of that case. Third, the question trail makes no reference, either directly or indirectly, to the requirement of intention.
313 Although I would uphold ground 1 of Mr Taylor's appeal against conviction and ground 5 of Mr Jones' appeal against conviction, I am satisfied, for the reasons given by Buss P, that neither appellant has suffered a substantial miscarriage of justice.
314 MITCHELL JA: I agree that these appeals should be dismissed, generally for the reasons which Buss P has explained. I agree with the orders which Buss P proposes. I will make some additional observations in relation to grounds attacking the trial judge's direction in relation to the intention of an aider, and Mr Jones' ground relating to the conduct of his trial counsel.
Taylor's conviction ground 1 and Jones' conviction ground 5 Mr Taylor's ground of appeal
315 Mr Taylor contends that the trial judge's failure 'to adequately direct the jury's attention to the intent of the aider rather than the knowledge of the intention of the principal' gave rise to a miscarriage of justice. He contends that the trial judge should have directed the jury that they needed to be satisfied beyond reasonable doubt that, when Mr Taylor did the act or acts which assisted Mr Jones, he intended that the act or acts would assist Mr Taylor (appeal ts 36).
316 Section 7(c) of the Criminal Code makes every person who aids another person in committing an offence guilty of the offence. Aiding for this purpose requires intentional participation by conduct which actually assists the commission of an offence. The conduct must be aimed at assisting something which goes to make up the facts which constitute the commission of the relevant offence. A person cannot be an aider through an act which unwittingly assists the principal offender.[1]
317 A person may unwittingly assist an offender by doing an act which assists the offender (such as driving the offender to a bank) without knowing that the offender is going to commit an offence (such as robbing the bank). A person may also unwittingly assist an offender who the person knows is committing an offence by doing an act which provides actual assistance to the offender without intending that the act have that effect (such as leaving a door unlocked in a way that inadvertently facilitates ingress or egress by the offender). In neither case will the person be criminally responsible under s 7(c) of the Criminal Code.
318 In the present case, the State relied on s 7(c) as one aspect of its case against Mr Taylor. The State advanced this aspect of its case against the contingency that the jury were not satisfied that Mr Taylor, acting with the relevant intention, did one or more of the acts which caused the death of the deceased.[2] The State contended that Mr Taylor at least aided Mr Jones to kill the deceased with the relevant intention. The prosecutor's opening and closing submissions indicated that the aiding included Mr Taylor kicking in the toilet door so that Mr Jones could attack the men in the toilet cubicle. The aiding which the State alleged also included disabling the deceased by knocking him to the ground to prevent resistance by the deceased to the violence which was to follow (ts 172 - 173, 1066).
319 Mr Taylor admitted kicking in the toilet door (ts 883), but denied that he knew that Mr Jones was present and contended that he did so to tell the men inside to stop scaring his children. In evidence, he denied assaulting the deceased at all.
320 The relevant parts of the trial judge's direction to the jury are set out in Buss P's reasons at [60] - [64]. The trial judge explained the requirements for one of the appellants to be found guilty of murder as an aider. To convict Mr Taylor as an aider, the direction required the jury to be satisfied that Mr Taylor:
321 The question trail document provided to the jury included the following questions:
To find Mr Taylor guilty as an aider, the jury were required to answer 'yes' to both of questions 1 and 2, and either of questions 3 or 4.
322 The trial judge's directions made it clear that Mr Taylor could not be liable for unwittingly aiding an offence which he did not know was being committed. However, the trial judge did not expressly state that Mr Taylor would not be liable as an aider if, being aware that an offence was being committed, he did an act that actually assisted the principal offender to commit the offence without intending to do so.
323 In some circumstances, a miscarriage of justice may arise from a failure to direct that a person does not aid the commission of an offence of which he or she is aware without intentionally providing actual assistance. The Queensland Court of Appeal's decision in R v Roberts[3] illustrates this proposition. In that case, one basis on which Pearce might have been found guilty of murder was that he aided Roberts by assaulting the victim. Pearce had given an explanation that, while his assaulting the victim may have aided Roberts, he did not act for that purpose. Rather, Pearce said that he assaulted the victim to prevent him from running outside where he could be observed covered in blood. The jury may have been required to determine the intention with which Pearce assaulted the victim.[4] In those circumstances, a miscarriage of justice arose from the failure to direct the jury that Pearce's acts must be done with the intention that they would assist Roberts.
324 The facts in Roberts were materially different to those of the present case. Neither evidence adduced by the State nor that relied on by Mr Taylor suggested that he might have unwittingly assisted the commission of an offence of which he was aware. Mr Taylor's evidence was that he never assaulted the deceased. Mr Taylor's case was that he kicked open the toilet door, when he was unaware of Mr Jones' presence, for the purpose of remonstrating with the men in the cubicle. The only evidence suggesting that Mr Taylor unwittingly assisted Mr Jones to murder the deceased was Mr Taylor's evidence that he was unaware of the offence which Mr Jones intended to commit.
325 The directions did not allow the jury to convict Mr Taylor as an aider without first being satisfied that he provided actual assistance knowing that Mr Jones intended to kill or inflict a life-threatening injury[5] upon the deceased. Once the jury was satisfied beyond reasonable doubt of those facts, the evidence did not provide any other basis for apprehending that Mr Taylor may have unwittingly assisted Mr Jones to murder the deceased. The evidence did not plausibly suggest that Mr Taylor kicked in the toilet door or assaulted the deceased, while knowing Mr Jones was present with the relevant intent, without intending to assist Mr Jones in what he was about to do.
326 The State's case was that Mr Taylor and Mr Jones were acting together. Mr Taylor's case was premised on his ignorance of the offence which Mr Jones was going to commit. The critical issue for the jury to determine in relation to aiding was whether they were satisfied that Mr Taylor acted together with Mr Jones, rather than for his own purposes in ignorance of Mr Jones' intention to kill or inflict life-threatening injury on the deceased.
327 In the particular circumstances of this case, the trial judge's direction identified the only real contentious issue of fact raised by the evidence. That issue was whether Mr Taylor knew that Mr Jones was going to kill or inflict life-threatening injury on the deceased when he did the acts alleged by the State which actually assisted Mr Jones to do so.
328 The trial judge's direction must be considered as a whole with the jury aid and in light of the submissions and evidence advanced at trial. Read in that context, the direction did not suggest that the jury might convict Mr Taylor as an aider on the basis that he unwittingly assisted in the murder of the deceased. Rather, the direction made it clear to the jury that, to be found guilty of murder as an aider, Mr Taylor must have purposefully rather than unwittingly provided assistance. Once the jury found Mr Taylor knew of Mr Jones' intention to kill or inflict life-threatening injury upon the deceased when providing actual assistance (for example by kicking in the door or assaulting the deceased) it was clear that the assistance must have been intentionally provided. The direction focused the jury's attention on the only way in which the evidence in this particular case suggested that Mr Taylor may have unwittingly aided Mr Jones to murder the deceased.
329 Counsel appearing at trial, including very competent and experienced criminal barristers, did not take any issue with the trial judge's directions on aiding. I infer that they did not do so because, in the context of the evidence, submissions and atmosphere of the trial as a whole, the direction was effective to convey to the jury the need for the State to prove that Mr Taylor aided purposefully rather than unwittingly.
330 In Ritchie, this court held that a miscarriage of justice was occasioned by a failure to adequately instruct the jury as to the need to be satisfied that the acts which allegedly aided the principal offender were done with the intention of doing so. The direction in Ritchie, given by the same trial judge as the present case, was in very similar terms to aspects of the direction in the present case. However, Ritchie did not hold that that a direction with those elements would give rise to a miscarriage of justice in every case, irrespective of the evidence and the particular factual issues in contention.
331 In the particular circumstances of this case, no miscarriage of justice arose from the failure to direct that Mr Taylor must have intended to assist Mr Jones in the commission of an offence of which Mr Taylor was aware in order to be found guilty of murder as an aider. Read as a whole, and understood in the context of this trial, the direction conveyed to the jury that the actual assistance which Mr Taylor provided must be purposeful rather than unwitting before he could be found guilty of murder as an aider. It identified the critical issues of fact which the jury were required to consider.
332 For these reasons, I would dismiss ground 1 of Mr Taylor's appeal.
333 The above reasoning also applies to ground 5 of Mr Jones' appeal, which asserts the same error. As Mr Jones' case at trial was that he was not present at the relevant time, there was even less scope for the evidence admissible against him to suggest that he unwittingly acted in a way that actually assisted a murder which he knew was being committed. The State's case was that Mr Jones aided by guarding the entrance to the toilet cubicle and assaulting the deceased with a pole. If the jury were satisfied that he deliberately did those things while knowing that Mr Taylor intended to kill or inflict a life-threatening injury on the deceased, the conclusion that he did those acts with the intention of providing assistance necessarily followed. I would dismiss ground 5 of Mr Jones' appeal.
334 Mr Jones contends that a miscarriage of justice was occasioned by his trial counsel's cross examination of Ms Bentley. He does not contend that the conduct of trial counsel deprived him of a fair trial according to law. Rather, he contends that the cross-examination was a 'material irregularity in the trial', which possibly affected the outcome.[6]
335 Ms Bentley gave evidence which identified Mr Jones as the person who was at the toilet block with Mr Taylor. Mr Jones points to his denial to police of having gone to the toilet block and his trial counsel's opening, which was to the effect that Mr Jones had no part in the assault on the deceased and was not present when it occurred (ts 186 - 188). He submits that the reliability of Ms Bentley's recognition of him as the person she saw walking away with Mr Taylor was of critical importance at his trial.
336 In her evidence-in-chief, Ms Bentley said that, when standing in front of the toilet block, she heard Mr Taylor say to someone 'are you right mate?' or 'are you right mate? Let's go' (ts 383).
337 In that context, Mr Jones (whose first name is Daniel) contends that a miscarriage of justice arose from the following passage of cross-examination of Ms Bentley by his trial counsel:
Now, shortly before the trial, on 12 March, did you have a sit-down with the prosecution and go through your statement and correct part of your statement by saying that as far as you could remember, Taylor said, 'That's enough, Dan. Let's go. Are you right?'---Yes.
Now today in evidence, which is only a few days since then, you have told the court that all you said was, 'He said, "Are you right?"'?---I remember a few things back then that I blocked out from what happened to that guy.
Okay. But my question to you today is did he say, 'That's enough, Dan'?---He said, 'Are you right, mate? That's enough, Dan.'
'Are you right, mate?' But in actual fact, you never heard the word 'Dan', did you?---Yes, I did.
So why didn't you tell us when you gave evidence that you heard the word 'Dan'?---Because I forgot. I was shaken at the time of the incident and I - just a lot of stuff that I remember now, like specially what happened that night (ts 401).
338 Mr Jones contends that this cross-examination constituted a material irregularity in the trial. He submits that it cannot be explained on an objective analysis as the result of a rational forensic decision or having been pursued for a forensic advantage. Alternatively, he submits that any forensic advantage was slight in comparison with the obvious disadvantages of adducing evidence that Mr Taylor used Mr Jones' first name when speaking with the person in the toilet block.
339 For reasons which Buss P explains, there was an objectively reasonable explanation for trial counsel's attempt to attack Ms Bentley's credibility in this way. Once that conclusion is reached, in the circumstances of this case it cannot be said that there was a material irregularity in the trial or that a miscarriage of justice arose from that legitimate forensic choice.
340 Further, in my view, the ground must fail even if the decision to undertake this line of cross-examination could not be objectively regarded as a rational forensic choice by defence counsel. That is so for the following reasons.
341 The cases to which Buss P refers establish that it will be difficult to establish a miscarriage of justice arising from a material irregularity in a trial where the alleged error of counsel is explicable on the basis that it did or could have led to a forensic advantage.[7] However, concepts of miscarriage of justice and material irregularity are not to be equated with forensic disadvantage or incompetence of counsel. The focus of inquiry is on the consequences of the alleged incompetence, and the extent to which it caused or contributed to a miscarriage of justice, rather than upon the cause or nature of the incompetence.[8] The fact that counsel's conduct may be explicable on the basis of forensic advantage does not necessarily preclude a court from holding that, nevertheless, there was a miscarriage of justice.[9]
342 In my view, the converse is also true. A miscarriage of justice is not established by the mere fact that counsel adopts a course which could not rationally be expected to produce a forensic advantage and which proves to be disadvantageous to an accused. The existence of possible forensic advantage may lead a court to conclude that there was no material irregularity or miscarriage of justice. However, the absence of possible forensic advantage does not itself establish a miscarriage of justice, or suffice to support the conclusion that there has been a material irregularity in the trial.
343 In the present case, the questions asked of Ms Bentley adduced evidence which was both relevant and admissible in the trial. There was nothing irregular about its reception. This was not a case, where a miscarriage of justice may arise in some circumstances,[10] of trial counsel consenting or failing to object to the reception of inadmissible evidence prejudicial to an accused. Nor is this case concerned with whether a failure by defence counsel to adduce admissible evidence can give rise to a miscarriage of justice.[11] I am not convinced that reception of relevant admissible evidence constitutes a material irregularity in a trial merely because the evidence was given in response to questions posed by defence counsel, even if there was no possible forensic advantage in asking those questions.
344 None of the cases to which we were referred concerning miscarriages of justice arising from incompetence of counsel involved the reception of admissible evidence elicited by counsel pursuing an unwise line of cross-examination. Nor have I been able to locate any cases where asking questions which elicit relevant admissible evidence has been sufficient to constitute a miscarriage of justice on the basis that the answers given were not favourable to the accused's case.
345 As Gleeson CJ noted in Nudd v The Queen,[12] it is the fairness of the process that is in question; not the wisdom of counsel. The reception of relevant and admissible evidence does not ordinarily result in an unfair trial, deprive the accused of a chance of acquittal fairly[13] open to him or her or give rise to some other miscarriage of justice. That conclusion does not change merely because the evidence was elicited by questions unwisely posed by defence counsel.
346 Even if it were established that there was no possible forensic advantage in asking the questions quoted above, there was no material irregularity in the trial of Mr Jones giving rise to a miscarriage of justice. All that occurred was that the court received admissible evidence relevant to the issues the jury were required to determine. Mr Jones contends that the evidence which counsel's questions sought to elicit did not and could not have assisted his case. Acceptance of that contention would not demand a conclusion that the reception of that relevant and admissible evidence constituted a material irregularity in the trial or otherwise gave rise to a miscarriage of justice.
347 For these reasons, as well as those explained by Buss P, ground 4 of Mr Jones' appeal against conviction must be dismissed.
[1] L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545 [37]; Ritchie v The State of Western Australia [2016] WASCA 134 [84] and cases there cited.
[2] If the jury were so satisfied, Mr Taylor would have been liable under s 7(a) of the Criminal Code: L [32].
[3] R v Roberts [2012] QCA 82.
[5] For economy of expression, I shall refer to 'a bodily injury of such a nature as to endanger, or be likely to endanger, the life of a person' (the language of s 279(1)(b) of the Criminal Code) as a 'life-threatening injury'.
[6] Paragraph 33 of Mr Jones' written submissions.
[7] See, in particular, TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [16] - [17], [26], [32] - [33], [81] - [82]; McMahon v The State of Western Australia [2010] WASCA 143 [27].
[8] KLM v The State of Western Australia [2009] WASCA 73; (2009) 194 A Crim R 503 [50] and cases there cited.
[9] TKWJ [28], [84]; McMahon [27].
[10] See Steve v The Queen [2008] NSWCCA 231; (2008) 189 A Crim R 68 and Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662.
[11] This was the kind of miscarriage alleged in TKWJ.
[12] Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 [9].
[13] See TKWJ [26]; Ali [99].
(2015) 256 CLR 47
(2013) 45 WAR 328
(2016) 49 WAR 545
(1999) 195 CLR 665
(1995) 183 CLR 108
(2016) 90 ALJR 918
(2006) 80 ALJR 614
(1998) 197 CLR 316
(2016) 50 WAR 45
(1974) 131 CLR 623
(1997) 188 CLR 1
(1990) 19 NSWLR 677
(2007) 97 SASR 502
(2009) 236 CLR 397
(2007) 228 CLR 232
(2013) 88 ALJR 215
(2001) 202 CLR 115
(2011) 43 WAR 285
(2002) 212 CLR 124
(2005) 224 CLR 300
(2011) 42 WAR 91
(1985) 156 CLR 473
(1974) 134 CLR 426
(1980) 143 CLR 108
(1988) 164 CLR 365
(2010) 242 CLR 233
(2005) 79 ALJR 662
(2012) 246 CLR 92
(2004) 29 WAR 338
(1990) 169 CLR 525
(2006) 227 CLR 373
(1984) 58 ALJR 367
(2003) 219 CLR 1
(2008) 232 CLR 438