Court of Appeal (WA)|2016-11-30|Before: Mr J, Buss P, Mazza JA, Mitchell JA, Jenkins J

TAYLOR -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 210 (30 November 2016)

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

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

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

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

Prestidge v The State of Western Australia [2014] WASCA 16

R v Barlow [1997] HCA 19; (1997) 188 CLR 1

R v Jeffrey [2003] 2 Qd R 306

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

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

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

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.

Mr Taylor's appeal against conviction: ground 1: s 7(b) and s 7(c) of the Code

49 The parties to an offence are specified in s 7, s 8, s 9 and s 10 of the Code.

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).

58 So, a person will not be criminally liable under s 7(b) or s 7(c) unless the State proves beyond reasonable doubt that:

(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).

Has the State proven that the particular accused you are considering (the accused) killed Mr Batchelor (the deceased) or that he provided actual assistance to another to do so?

(a) If yes, go to question 2.

(b) If no, go to question 5.

Has the State proven that the death was unlawful?

(a) If yes, go to question 3.

(b) If no, go to question 5.

Has the State 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?

(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.

Has the State 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?

(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);

TAYLOR -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 210 (30 November 2016)

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TAYLOR -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 210 (30 November 2016)

Legislation Cited (2)

Cases Cited (34)