Croxford v The Queen [2011] VSCA 433 (16 December 2011)

Last Updated: 16 December 2011

SUPREME COURT OF VICTORIA

COURT OF APPEAL

	S APCR 2009 0881

RONALD DALE CROXFORD	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, ASHLEY JA and ROSS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 August 2011
DATE OF JUDGMENT:	16 December 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 433
JUDGMENT APPEALED FROM:	The Queen v Croxford & Doubleday [2009] VSC 516 (Coghlan J)

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CRIMINAL LAW – Conviction – Manslaughter – Aid, abet, counsel or procure – Whether verdict of guilty is unreasonable and cannot be supported having regard to the evidence – Whether verdict of guilty to manslaughter is irreconcilable with the verdict of guilty for the co-accused to defensive homicide – Application for leave to appeal against conviction refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D C Hallowes	Vaccaro’s Solicitors

For the Crown	Mrs C M Quin	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

1 I have had the considerable advantage of reading in draft the joint reasons for judgment of Ashley JA and Ross AJA. For the reasons which their Honours have given, I too would refuse the application for leave to appeal.

ASHLEY JA

ROSS AJA:

Introduction

2 Early on the morning of 27 July 2008 William Winter died as a result of a blow to the back of his head. The deceased had been struck with a garden stake and the extent of the injury inflicted indicated a blow of significant force. Later that day, the applicant (Ronald Dale Croxford) and his co-accused (Ricky Doubleday) were charged with murder.

3 The presentments in respect of both accused preferred one count of murder. On 11 August 2009, after a 19 day trial, the jury found Croxford and Doubleday not guilty of murder. Doubleday was found guilty of defensive homicide and sentenced to 9 years’ imprisonment with a non-parole period of 6 years. Croxford was found guilty of manslaughter and sentenced to 7 years and 6 months’ imprisonment with a non-parole period of 5 years.

4 Croxford has applied for leave to appeal against his conviction. Before turning to the grounds of appeal it is convenient to briefly set out the circumstances of the offending.

Overview of the Facts

5 In the early hours of the morning of Sunday 27 July 2008, Croxford and Doubleday, the deceased Winter and two young women were outside the Birralee Tavern in West Wodonga. Shortly after 1.00am the Tavern closed and they congregated on the veranda of the premises and engaged in friendly conversation.

The atmosphere was relaxed. Over the next 20 minutes all patrons, hotel and security staff left the Tavern.

6 The group remained outside the Tavern for more than 20 minutes before Doubleday made a remark to which the deceased took offence. It was then that the deceased produced a knife. What the deceased did with the knife was disputed on the evidence but whether he handled the knife in a threatening manner or not, it is common ground that the knife was produced and that the applicant reacted towards the deceased in an aggressive manner.

7 Over the next few minutes there was open hostility between the applicant and the deceased. The deceased was then observed with a belt wrapped around his right hand, approximately 30 or 40 centimetres of which was hanging down, with a relatively large buckle fixed to the end.

8 Whilst still outside the Tavern, the deceased was struck to the face by both Croxford and Doubleday, somewhat more forcefully by Doubleday. The deceased did not retaliate, although on the evidence, he continued to ‘mouth off’. Following the strike by Doubleday, the deceased held his hands above his head and was heard to utter words to the effect that ‘he was walking away’.

9 The argument between the applicant and the deceased continued past the front of the Tavern and around into Leisure Centre Drive, the deceased travelling more than 200 metres up Leisure Centre Drive.

10 Doubleday armed himself with a garden stake and followed the other men along Leisure Centre Drive. Doubleday was some distance behind the applicant and the deceased who were still arguing with one another. At some stage, the applicant also armed himself with a garden stake. At a point a few hundred metres along Leisure Centre Drive, near the entrance to the walkway to Simmons Court, the deceased turned to face Croxford and Doubleday. By then, or shortly after, the deceased held a knife in his right hand and his belt was wrapped around his left hand.

11 The applicant, on his account, struck the deceased high on the body with a garden stake. Then, to his observation, Doubleday struck the deceased forcefully to the head with a garden stake.

12 It was clear from the evidence of the examining pathologist, Dr Lynch, that there had been at least one blow to the back of the deceased’s head which had caused fatal injuries.

13 At the trial there was no dispute as to the following matters:

(i) Winter’s death was caused by a conscious and voluntary act by Doubleday.

(ii) The act [1] which caused the death of the deceased was done deliberately.

(iii) The act which caused the death of the deceased was dangerous.

14 The trial judge provided a directions sheet to the jury. This document first identified the elements of murder. Because it was the Crown case that Doubleday had struck the fatal blow – a matter which was not in dispute at trial – and because the Crown sought to implicate Croxford as an aider and abettor, the directions focussed in the first instance upon the live issues as between Doubleday and the Crown.

15 Doubleday’s primary contention was that the Crown had failed to prove that he had intended to kill Winter, or cause him really serious injury. He raised also, by a record of interview, the issue of self defence.

16 The jury was directed that if it were not satisfied beyond reasonable doubt that Doubleday had intended to kill Winter, or cause him really serious injury, then he was not guilty of murder. Then it must consider manslaughter.

17 But if it was satisfied that Doubleday caused the death of the deceased and intended to kill him or to cause him really serious injury, then self-defence and possibly defensive homicide needed to be considered.

18 The trial judge’s written directions then dealt with self-defence and defensive homicide.

19 Respecting self defence, the judge explained the two ways in which it could arise. The first – and presently only relevant way – involved the jury determining whether the Crown had established to the criminal standard that Doubleday did not believe that it was necessary to do what he did to defend himself or another from being killed or seriously injured. If the Crown failed to establish that matter, then the issue of defensive homicide had to be considered. The jury must consider whether the prosecution had proved beyond reasonable doubt that Doubleday did not have reasonable grounds for such belief. If the Crown excluded reasonable grounds, then Doubleday was guilty of defensive homicide.

20 The jury was directed to consider questions of belief by reference to the circumstances as perceived by Doubleday.

21 The directions dealt also with the elements of manslaughter. They explained how consideration of that offence might become relevant.

22 In his directions sheet to the jury the judge further set out the elements of aiding and abetting. That was, as we have said, the way in which the Crown advanced its case against the applicant.

23 The directions stated that the four elements the prosecution must prove beyond reasonable doubt were:

(1) someone committed the offence charged; and
(2) the accused knew of, or believed in, the essential circumstances needed to establish that offence;
(3) the accused intentionally assisted or encouraged the principal offender to commit that offence; and
(4) the accused had not withdrawn his assistance or encouragement for the principal to commit that offence.

24 The directions also stated:

An aider and abettor cannot be convicted of any greater offence than the principal, so even if you are satisfied of issues 1, 2 and 3 were with the intention of assisting or encouraging murder you could only convict the aider and abettor of any lesser offence ie. either defensive homicide or manslaughter. If the aider and abettor assisted or encouraged the commission of the lesser offence of manslaughter by assisting or encouraging an unlawful and dangerous act the appropriate verdict would be guilty of manslaughter.

25 In an extensive oral charge, which must have been of much assistance to the jury, his Honour repeated, and enlarged upon, his written directions.

26 It follows from the jury’s verdict in respect of Doubleday – (1) that the jury was satisfied beyond reasonable doubt that he had killed Winter with an intention to kill or to inflict really serious injury; (2) that the Crown had not excluded beyond reasonable doubt the possibility that he believed it was necessary to do what he did to defend himself or another from being killed or seriously injured; and (3) that the Crown had proved beyond reasonable doubt that he did not have reasonable grounds for his belief.

Grounds of Appeal

27 There are two grounds of appeal:

(1) The verdict of guilty is unreasonable and cannot be supported having regard to the evidence.

(2) The verdict of guilty to manslaughter is irreconcilable with the verdict of guilty for the co-accused Doubleday to defensive homicide.

28 Before turning to the grounds of appeal we propose to briefly deal with the task of the appellate court in a conviction appeal and make some general observations about ‘aiding and abetting’.

29 As to the first matter, an appeal against conviction must be allowed if the court is satisfied, relevantly, that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence.[2] The question for the appellate court is one of fact.

30 As the High Court stated in M v The Queen:[3]

[T]he question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations ...

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.

31 In relation to ‘aiding and abetting’, section 323 of the Crimes Act 1958 (Vic) provides that a person may be tried or indicted and punished as a principal offender if he or she aids, abets, counsels or procures the commission of an indictable offence. The words ’aid, abet, counsel or procure’ may be read collectively, to describe a person who assists or encourages someone to commit an offence.[4]

32 The prosecution does not need to prove that there was any agreement between the accused and the principal offender. The lack of an agreement is what distinguishes aiding, abetting, counselling or procuring from other forms of complicity such as acting in concert.[5]

33 A person generally cannot intentionally assist or encourage a person to commit an offence unless she/he is aware of the essential facts that constitute the offence.[6]

34 The prosecution must prove that the accused knew of, or believed in, the essential circumstances that establish the principal offence.[7] The ‘essential circumstances’ of an offence are the facts that will go to satisfying the elements of the offence.[8] The prosecution must also prove that the accused intentionally assisted or encouraged the principal offender to commit the offence charged.[9] This requires the prosecution to not only prove that the accused assisted or encouraged the commission of the crime in some way, but that she/he intended to do so.[10] Where the criminal liability attaches to conduct that produces a particular result (eg, death or serious injury), it is not necessary that the accused intended to produce that result. It is only necessary that she/he intended to assist or encourage the conduct that ultimately produced that result.

35 We now turn to the grounds of appeal.

Ground 1

36 The applicant contends that the jury’s verdict is unreasonable and cannot be supported having regard to the evidence.

37 There was no independent evidence as to the circumstances immediately preceding and at the time of the fatal assault. There was independent evidence regarding events which took place prior thereto. Although the evidence differed in the detail, it clearly revealed a confrontation involving the applicant, Doubleday and the deceased outside the Birralee Tavern in Wodonga West.

38 One witness observed a confrontation in which the applicant became upset and took his shirt off. She described a verbal argument between the applicant and the deceased and she said that Doubleday punched the deceased. She said the deceased backed away and Doubleday was pulled back by the applicant from running after him. She said that subsequently she observed somebody on the ground with two people around him. She said that she saw a long object being waved in the air.

39 A second witness also observed the confrontation. She said that the applicant was yelling and screaming and said something to the effect of ‘I’ll fucking hit him’. She said that the applicant punched the deceased and that Doubleday also punched the deceased. She said that the deceased then walked off. She said the applicant, who had a stick, and Doubleday followed the deceased. She said that one of them said to the deceased words to the effect of ‘I’ll get you’.

40 A third witness observed from a distance someone on the ground and someone who looked like he was over the top of the person on the ground. That observation was made at a later stage, and the persons were, inferentially, at the place in Leisure Centre Drive where the fatal assault took place.

41 The second witness saw both co-accused punch the deceased outside the Tavern in fairly quick succession. The first witness gave evidence that after Doubleday had punched him, the deceased put his hands up, said ‘I’m walking away’, and started backing towards Leisure Centre Drive. When the second witness tried to intervene in the initial altercation she was told by the applicant ‘I’ll fuckin’ hit him and I’ll fuckin’ hit you too’. She also gave evidence that as the deceased was walking ‘really fast’ away from the scene, the two co-accused were chasing him. The evidence showed that the applicant and Doubleday pursued the deceased for some 285 metres. The second witness stated that the men were arguing and yelling as they travelled up Leisure Centre Drive, and it looked to her as if the three were close together.

42 A fourth witness gave evidence of seeing Doubleday and the applicant after the fatal confrontation had occurred; and of something which he heard before he saw them. We will later refer to that evidence in some detail.

43 The applicant made a record of interview. It went into evidence. He stated, inter alia, that – (1) he threw a punch at the deceased during the initial altercation; (2) at the place of the fatal attack, he hit the deceased with a garden stake high up on the body and did not hit him again; (3) after he hit the deceased, he stood back and didn’t do anything as he didn’t see any reason for any more of it; (4) someone else (Doubleday) then hit the deceased. He grabbed the other man and told him to stop; (5) Doubleday took off. He, the applicant, said they should go back and check on the deceased, to which Doubleday said ‘no, let’s just go’.

44 The judge directed the jury that it must consider the Crown case against Croxford on the basis that he saw only one blow with a garden stake struck by Doubleday.

45 Counsel for applicant submitted that the evidence was not capable of allowing an inference to the criminal standard that at the time Doubleday inflicted the fatal blow the applicant was intentionally helping, encouraging or conveying his assent to Doubleday to commit that assault. That submission must be considered with an understanding of what is sufficient to constitute intentionally assisting or encouraging the principal offender.

46 Mere presence is never enough.[11] That is not to say that actual words or gestures constituting encouragement must accompany the commission of the principal offence. The accused’s conduct relating to the offence is to be viewed as a whole.[12] Acts and words of the accused done or said prior to the commission of the principal offence may warrant the conclusion that the accused’s presence made him complicit in the offence by helping the principal in the first degree to commit the crime, encouraging him or conveying to him that the accused assented to and concurred in his commission of the crime.[13]

47 In R v Lam,[14] this Court quoted with approval the observations of the trial judge in that case and those he cited from other authorities, about presence in the context of aiding and abetting.[15] In particular, the trial judge referred to the observations of the Queensland Court of Criminal Appeal in R v Beck,[16] where Macrossan CJ (with whom McPherson J agreed) stated:

Intentional encouragement may come from expressions, gestures ‘or actions intended to signify approval’. Voluntary and deliberate presence during the commission of a crime without opposition or real dissent may be evidence of wilful encouragement or aiding. It seems that all will depend on a scrutiny of the behaviour of the alleged aider and the principal offender and on the existence which might appear of a bond or connection between the two actors and their actions. The fortuitous and passive presence of a mere spectator can be an irrelevance so far as an active offender is concerned. But, on the other hand, a calculated presence or a presence from which opportunity is taken can project positive encouragement and support to a principal offender. The distinction between a neutral and a guilty presence of a person at the scene of a crime will be for the jury to assess. Proof of guilt of the crime of aiding will not ordinarily be established by mere presence if no telltale acts are performed by the alleged aider but the intention behind and the effect of the presence of the additional person at the scene may be established by other evidence from which it is possible to say that a case of intentional encouragement or support of the principal offender is made out.

48 Where it is suggested that the accused’s presence at the crime assisted or encouraged its commission, it is for the jury to assess whether his/her presence was intended to have this effect.[17]

49 We reject the contention that the verdict was unreasonable or cannot be supported by the evidence. A finding that the applicant was helping, encouraging or conveying his assent to the assault on the deceased by his co-accused was not dependent on the Crown establishing that the applicant encouraged or conveyed his support for the single fatal blow struck by Doubleday. As the learned trial judge stated in his charge, the jury was to consider all of the circumstances of the case in assessing whether the applicant aided and abetted Doubleday’s attack. In considering whether the applicant was encouraging Doubleday’s assault on the victim, the jury was entitled to take into consideration the behaviour of both accused from the time of the initial altercation with the victim outside the Tavern.

50 At the time of the assault which caused his death the deceased was being pursued by both accused. The deceased had not struck a blow of any kind, and had made his intention to walk away clear. The applicant and Doubleday had thereafter armed themselves with wooden garden stakes during the course of the pursuit. It was clear that they were hostile towards the deceased. As the learned trial judge held in rejecting a ‘no case’ submission, it was open to the jury to conclude that the co-accused pursued the deceased with the intention of doing him some harm. It was unnecessary for the applicant and Doubleday to pursue him or to arm themselves. In these circumstances it was reasonably open to the jury to find that Doubleday’s attack on the deceased took place in a setting where over a period of time the applicant had encouraged and supported violence being perpetrated against the victim – indeed, as shown by the applicant’s own attack very shortly before the fatal blow was struck, very considerable violence. The question which then arises is whether, before the fatal blow was struck, the applicant withdrew his assistance, encouragement, or the support which he had conveyed.

51 A person who aids, abets, counsels or procures the commission of an offence may avoid liability if he expressly withdraws his assistance or encouragement before the offence is committed.[18] It is usually more difficult for an accused to withdraw at the time of the offence, as this will usually require greater conduct on the accused’s behalf to undo the effect of his previous assistance or encouragement.[19]

52 Whether the accused has taken all reasonable steps to undo the effect of his previous assistance or encouragement is a question for the jury.

53 If withdrawal of the accused’s assistance or encouragement is in issue then the prosecution must prove that the accused did not effectively withdraw his assistance or encouragement prior to the offence being committed.

54 At trial, a submission was made by counsel for the applicant that there was no case to answer on the count of murder and the submission necessarily applied equally to manslaughter. The learned trial judge rejected the submission. The submission and his Honour’s ruling focused on when the words heard by the fourth witness were spoken. The fourth witness did not see the confrontation but heard some words and then saw two males, who by inference were the applicant and Doubleday. He said he heard male voices arguing. At the end he heard a male voice say ‘No Mick, no let’s go’. The witness saw two people jog across to an alley three seconds after he heard those words. He said in cross-examination that the words ‘let’s go’ were said pretty much straight after the words ‘no, Mick no’ and that he could not say whether it was the same voice. He also said that it was a guess by him that it was three seconds from when he heard the words to when he saw the two people jog across to the alley and it was difficult to remember how long it was.

55 It was accepted at trial that the words ‘No, Mick no’ were in fact uttered by the applicant and in all likelihood were ‘No, Rick no’, the ‘Rick’ in question being Doubleday.

56 The learned trial judge found it was open to find the words were not said until after the fatal blow. In this Court, counsel for the applicant submitted that the evidence did not allow for such a positive finding. He submitted that, having regard to the uncertainty of the fourth witness’s recollection regarding timeframes, the jury could not disregard the reasonable possibility that the words were said by the applicant before the fatal blow. On that basis, he submitted that the applicant was entitled to an acquittal – it must have been either on the footing that the words showed that the applicant was not aiding and abetting the fatal assault, or else that he had withdrawn his assistance, encouragement or support for Doubleday’s assault on the victim.

57 Counsel further submitted that, even if it were open to find that the words were spoken after the infliction of the fatal blow, the evidence fell short of establishing that the applicant aided and abetted Doubleday’s fatal assault. He submitted, as a general proposition, that simply because one person strikes a particular individual it cannot be inferred – solely from that strike – that he is intentionally helping, encouraging or conveying his assent to another person striking the victim..

58 Counsel also contended that, if the words ’No, [Rick] no‘ were uttered after the infliction of the fatal blow, they must have been said shortly afterwards. They clearly indicated dissent by the applicant to Doubleday’s actions, and the jury could not have excluded the reasonable hypothesis that such was the applicant’s state of mind before the fatal blow was inflicted. Counsel submitted that, in his record of interview, the applicant indicated that he had not wished Doubleday to strike any blows at the relevant time. In the absence of evidence to rebut this statement, there was, counsel argued, necessarily a reasonable doubt whether the applicant was aiding and abetting Doubleday’s assault at the critical time.

59 We reject each of those submissions, most at least of which addressed the question of withdrawal.

60 First, we consider, if it could be decisive, that the jury was entitled to safely infer that the words ‘No, [R]ick, no’ were not said until after the fatal assault took place. The jury’s conclusion about that matter would have been assisted by seeing and hearing the witness give his evidence.

61 Second, whilst we agree that it might not have been safe to infer from a single blow struck by the applicant, in the absence of other circumstances, that he thereby aided and abetted Doubleday’s assault on the deceased, the applicant’s blow, very shortly before Doubleday’s fatal assault, was struck in the much broader context which we have described.

62 Third, if the words were spoken soon after Doubleday struck the fatal blow, any assumed withdrawal of support before the fatal assault remained uncommunicated at the critical time. This is not to say, see later, that the words spoken were inconsequential in throwing light upon the intent held by the applicant at the critical time.

63 Fourth, the submission that the applicant indicated in his record of interview that he did not want Doubleday to strike any blows at the relevant time [20] is not borne out by the contents of the record. It appears to us that the applicant did not express disapproval of blows having been struck by Doubleday per se. Rather, he expressed disapproval of the excessive force that Doubleday used in striking the deceased.

64 The jury’s verdict bespeaks its careful consideration of the evidence pertaining to the conduct and intention of the applicant. Its verdict reflects its conclusion that the evidence established, beyond reasonable doubt, that the applicant assisted Doubleday in an armed assault on the victim, that he encouraged and conveyed his support for Doubleday engaging in such conduct, and that his encouragement and support was subsisting when the fatal blow was struck; but that, unlike Doubleday, he did not intend the deceased to be killed or seriously injured. The issues were clearly and fully exposed for the jury’s consideration. We are not at all persuaded that the jury must have had a reasonable doubt of the applicant’s guilt by reason of any of the issues agitated before this Court.

Ground 2

65 Counsel for the applicant submitted that the verdict of guilty to manslaughter was irreconcilable with the verdict of guilty to defensive homicide returned against Doubleday. The two verdicts could not stand together, ‘in the sense that no reasonable jury which had applied its mind properly to the facts could have reached the conclusion’.[21]

66 The prosecution case at trial was that the applicant aided and abetted Doubleday. The latter was convicted of defensive homicide. Implicit in that conviction was a finding that there had been conduct by the deceased which gave rise to Doubleday’s subjective belief that he had to defend himself or the applicant from death or really serious injury. It was that belief, the verdict implied, which led him to strike the deceased with an intention of killing him, or of doing really serious injury.

67 The evidence noted at [5], [6] and [9] above provided some foundation for Doubleday holding such a belief. But much evidence led inexorably to a conclusion that Doubleday did not have reasonable grounds for the belief.

68 One aspect of counsel’s submissions focused on causation. How could the jury have concluded that the applicant aided and abetted an unlawful and dangerous act by Doubleday leading to the victim’s death when the killer’s actions had been caused by a belief that he must act in self-defence? One was an ‘offensive’ crime. The other was a ‘defensive’ crime.

69 Counsel also made a submission as follows:

... to be convicted of manslaughter the essential facts needed to be known by the applicant were that the assault by Doubleday on [the victim] was both unlawful and dangerous. In finding Doubleday guilty of defensive homicide the jury have determined Doubleday carried out the conduct believing the conduct to be necessary to defend himself but did not have reasonable grounds for that belief. A difficulty arises in that the jury has found Doubleday’s actions demonstrated an intention to at least cause really serious injury. If Doubleday’s actions had not been as severe and therefore demonstrated an intention consistent with manslaughter there may have been reasonable grounds consistent with self-defence for the severe conduct by Doubleday. If so, the applicant would have been entitled to an acquittal on the count of manslaughter.

70 Before going on, it is convenient to set out a passage in the judge’s charge, the accuracy of which was not challenged at trial, and which specifically was not challenged before us:

If you were satisfied, however, irrespective of what view, provided you had convicted Mr Doubleday of something, if you were satisfied that the accused, Croxford, was aiding and abetting with intent only to see Doubleday injure or at least cause less than death or really serious injury, it would then be open for you to convict him of manslaughter. So people can only get convicted of offences in accordance with what they intend, not what someone [else] intends unless they join in that intent.

So irrespective of the view that you take of what intent Mr Doubleday might or might not have, and that is a matter you will have to work out in this case as I explained it to you yesterday – if the aiding and abetting that you found Mr Croxford was involved in, if you so found it, was less than with intent to kill or cause really serious injury, then manslaughter would be open.

71 We return to counsel’s submissions. The first of them appears to have proceeded on the assumption that to be liable as an aider and abettor, a person must cause the actions of the principal. That is an erroneous assumption. The prosecution need not prove that a principal was in fact encouraged or assisted by the conduct alleged to constitute aiding and abetting. So much is clear from the judgment of this Court in R v Lam.[22] In Lam the Court of Appeal agreed with the ruling given by the trial judge, Redlich J (as his Honour then was), respecting the principles of law relating to aiding and abetting that the jury were to apply to the evidence before them.[23] For present purposes the relevant part of his Honour’s ruling was as follows:

The prosecution is not required to establish that the acts said to constitute aiding and abetting in fact assisted or encouraged the principal in the first degree ... Such a direction to a jury would be too favourable. It would impose an impossible burden on the prosecution, who would rarely be in a position to place evidence before a jury as to the effect of the secondary participant’s conduct on the principal offender’s state of mind.^[24]

72 In this case, the trial judge’s directions to the jury on this point accorded with the ruling of Redlich J in Lam. His Honour told the jury that there was no requirement that they be satisfied that Doubleday was actually assisted or encouraged by the applicant.

73 As to the second limb of the applicant’s argument – that the two verdicts cannot stand together – we are not persuaded that there is any difficulty with the jury finding the applicant and the co-accused guilty of different offences. As a matter of principle there is no obstacle to such an outcome. As this Court said in R v Vollmer and Ors:

It should be noted that there are cases in which an accomplice may be convicted of some lesser offence than the principal offender has committed – probably the most common case is where the principal offender is convicted of murder and the aider and abettor only of manslaughter. However, in those cases, almost necessarily the principal offender has committed a crime containing all the elements of the crime of which the accomplice is convicted. So far as it goes the actus reus is the same.^[25]

74 The authorities are replete with examples of convictions of participants for murder and manslaughter arising out of their involvement in the same course of conduct; and persons having an involvement in the same act being found guilty or not guilty according to their mental state. Two examples of the former are Likiardopoulos v R [26] and Osland v The Queen.[27] In Likiardopoulos, the Crown advanced a case both of conduct in concert and accessorial liability. Osland was a case of alleged conduct in concert. Because the present case concerns accessorial liability,

Osland is not directly in point.^[28]

75 In Likiardopoulos, the victim had died following a sustained attack by a number of persons over two days. It was not in issue that the victim was dead, or that whoever had caused his death had done so by conscious, voluntary and deliberate act. Nor was it in issue that the killing was without lawful justification or excuse. While not present throughout the assault the appellant exercised a degree of control over the other persons involved in the killing. The appellant’s co-accused pleaded guilty to manslaughter. The appellant stood trial for murder and was convicted.

76 On appeal it was submitted, inter alia, that the trial judge had erred in her directions on ‘counselling and procuring’ and, in particular, had erred in leaving to the jury this derivative form of liability for murder when none of the alleged principals had been convicted of murder. The Court rejected this ground of appeal.

[120] There is, we think, no doubt that had [other accused] gone to trial, and been found guilty of manslaughter, the applicant could nonetheless have been later presented on a count of murder; and an attempt could have been made to prove his guilt, inter alia, by assertion that he counselled or procured the others to commit that offence. Whether that could have been established would have depended upon the evidence admissible against the applicant. There may be contrasted the remarkable situation in Surujpaul v R,^[29] discussed by Callinan J in Osland v R,^[30] where in the one trial all five accused (including the appellant) were acquitted of murder but the appellant was found guilty of being an accessory before the fact to murder.
[121] The question, then, is whether the Crown’s acceptance of pleas to lesser offences by the others was a decisive consideration, so as to constitute the applicant’s trial an abuse so far as the Crown relied upon a particular means of proving guilt.
[122] We cannot agree that it was. Hui Chi-ming v R^[31] stands in the way. There, a group of six men, one of whom was armed, ‘went looking for’ a man who had attempted to intimidate the girlfriend of one of the men. They found the wrong man, but that did not stop the armed offender from bashing the wrong man to death. The Crown presented four of the men, including the attacker, on counts of murder. The attacker was found guilty of manslaughter, two others pleaded guilty to manslaughter and their pleas were accepted, and one was acquitted by direction. Then the applicant and a sixth man were charged – initially with manslaughter, but later with murder. The Crown accepted a plea to manslaughter by the sixth man. The appellant refused an opportunity to plead to manslaughter, went to trial and was found guilty of murder. The case against the appellant, as with the cases against the other men, were founded on what would be called, in Australia, the principles of extended common purpose.
.....
[126] Counsel sought to distinguish Hui Chi-ming on the footing that in that case joint criminality was alleged, rather than criminal liability for counselling and procuring an offence. He submitted, as we understood it, that alternative verdicts were available in the first situation, but that it was otherwise where an accused’s guilt was based upon counselling or procuring an offence. He also submitted that it was significant that here the Crown had accepted pleas to manslaughter, whereas in Hui Chi-ming the attacker had been found guilty of manslaughter. His argument was, as we understood it, that the Crown had adopted an inconsistent position with respect to the others on the one hand and the applicant on the other.
[127] In our opinion the first point of distinction was no point. Different verdicts are possible not only in the case of joint offenders but also in the case of a joint offender and an accessory.
[128] The second point of distinction disappears when one has regard to the matters raised on Hui Chi-ming’s behalf. The appellant relied not only upon the attacker having been acquitted of murder, but also upon the fact that the Crown had accepted pleas of guilty from three others.

77 As to the second category of cases referred to at [74] above, the English cases of The Qu [32]n v Bourne32 and R v Co[33]n and Leak33 are examples where participants in the same act were found guilty or not guilty according to their mental state.

78 In Bourne the appellant had been convicted of aiding and abetting his wife to commit buggery with a dog. The appellant’s wife could not have been convicted since she acted under the coercion of her husband. In dismissing the appeal against the husband’s conviction the Lord Chief Justice said:

The case against the appellant was that he was a principal in the second degree to the crime of buggery which was committed by his wife, because if a woman has connection with a dog, or allows a dog to have connection with her, that is the full offence of buggery ... we have allowed [counsel for appellant] to argue this case on the footing that the wife would have been entitled to be acquitted on the ground of duress ... Assuming that she could have set up duress, what does that mean? It means that she admits that she has committed the crime but prays to be excused from punishment for the consequences of the crime by reason of the duress, and no doubt in those circumstances the law would allow a verdict of Not Guilty to be entered ...
A point is raised here that the appellant was charged with being not merely an accessory before the fact but with being an aider and abettor ...
In the opinion of this court, there is no doubt that the appellant was properly indicted for being a principal in the second degree to the commission of the crime of buggery. That is all that it is necessary to show. The evidence was, and the jury accepted it, that he caused his wife to have connection with a dog he is guilty, whether you call him an aider and abettor or an accessory, as a principal in the second degree. For that reason, this appeal fails and is dismissed.

79 In Cogan and Leak the accused, Leak, was alleged to have persuaded Cogan to have intercourse with Leak’s wife. The wife had submitted through fear of Leak. Cogan’s conviction for rape was quashed because the jury had found that he had mistakenly, albeit unreasonably, believed that the wife was consenting. Leak had been convicted of aiding and abetting Cogan’s offence of rape. Leak’s appeal against conviction was based on the proposition that he could not be found guilty of aiding and abetting Cogan to rape his wife if Cogan was acquitted of that offence. The English Court of Appeal rejected this contention and dismissed the appeal, Lawton LJ, on behalf of the court, stating:

The fact that Cogan was innocent of rape because he believed that she was consenting does not affect the position that she was raped.
Her ravishment had come about because Leak had wanted it to happen and had taken action to see that it did by persuading Cogan to use his body as the instrument for the necessary physical act. In the language of the law the act of sexual intercourse without the wife’s consent was the actus reus: it had been procured by Leak who had the appropriate mens rea, namely, his intention that Cogan should have sexual intercourse with her without her consent. In our judgment it is irrelevant that the man whom Leak had procured to do the physical act himself did not intend to have sexual intercourse with the wife without her consent. Leak was using him as a means to procure a criminal purpose ...
Had Leak been indicted as a principal offender, the case against him would have been clear beyond argument. Should he be allowed to go free because he was charged with ‘being aider and abettor to the same offence’? If we are right in our opinion that the wife had been raped (and no one outside a court of law would say that she had not been), then the particulars of offence accurately stated what Leak had done, namely, he had procured Cogan to commit the offence. This would suffice to uphold the conviction. We would prefer, however, to uphold it on a wider basis. In our judgment convictions should not be upset because of mere technicalities of pleading in an indictment. Leak knew what the case against him was and the facts in support of that case were proved. But for the fact that the jury thought that Cogan in his intoxicated condition might have mistaken the wife’s sobs and distress for expressions of her consent, no question of any kind would have arisen about the form of pleading. By his written statement Leak virtually admitted what he had done. As Judge Chapman said in Reg. v. Humphreys [1965] 3 AII E.R. 689, 692;
‘It would be anomalous if a person who admitted to a substantial part in the perpetration of a misdemeanour as aider and abettor could not be convicted on his own admission merely because the person alleged to have been aided and abetted was not or could not be convicted.’
In the circumstances of this case it would be more than anomalous; it would be an affront to justice and to the common sense of ordinary folk. It was for these reasons that we dismissed the appeal against conviction.

80 In Australia Cogan has been regarded as authority for the proposition that an accused person can be convicted as an aider and abettor even though the principal offender had been acquitted [34] (see R v Matusevich and Thompson;[35] Giorgianni v R[36] and Schultz v Pettitt[37]).

81 The proposition that a person can be convicted as an aider and abettor of a crime when the principal offender has been acquitted is justified on the basis that, if the principal offender’s act has been wrongful but excusable (for example, on the grounds of insanity or duress or mistaken belief), the conviction of a co-accused as an aider and abettor is supportable provided that the aider and abettor had the requisite mens rea.[38]

82 The way in which the issue may arise is illustrated by Matusevich and Thompson. Two men were found guilty of murder arising out of a prison killing. The trial judge had directed the jury that if T, who had struck the fatal blows, was found not guilty of murder on the ground of insanity, M could not be found guilty of aiding and abetting a murder. But he had added: ‘That does not apply in relation to concert’. The case had been put in both ways by the Crown. It appeared from answers given by the jury that its verdicts of guilty of murder in the case of both men was on the basis that they had acted in concert.

83 On appeal, the Full Court decided that, there having been misdirection with respect to insanity, T should have a retrial.

84 The complaint made by counsel for M was that, in light of evidence that T had been insane at the time of the killing, the judge had misdirected the jury both with respect to concert and aiding and abetting. Young CJ, delivering the judgment of the Court,[39] first said this with respect to concert:

There is nothing in the legal concept of insanity which precludes the possibility of a man assenting together with a insane man to do an act and both men thereafter acting together to do the act. Whether upon the evidence in a particular case it could be found that both men were acting in concert is, of course, a different matter, and one which we will subsequently consider. The next question which arises, however, is whether the assent together of a sane man and an insane man to do the physical acts which are the necessary part of the actus reus of the crime, makes the sane man guilty of the crime if he has the necessary mens rea, although the insane man is not guilty. In our opinion, it does. Such a conclusion, we think, accords not only with legal principle but also with common sense. The sane man is a party to the doing of the act and he has the necessary guilty mind. Examples are not lacking in the law of participants in the same act being found guilty or not guilty of certain crimes according to their respective states of mind;^[40] and the cases of murder or manslaughter arising out of the same agreed course of conduct.^[41]

85 The Chief Justice then dealt shortly with the submission as to aiding and abetting:

... it was said that the learned trial Judge wrongly directed the jury that if they found Thomson not guilty on the ground of insanity they could not find Matusevich guilty of aiding and abetting. This direction does appear to be erroneous: see R v Cogan, [1975] EWCA Crim 2; [1975] 3 W.L.R 316. However, it was an error that was favourable to the accused.^[42],^[43]

86 The availability of different verdicts in a trial for murder of multiple accused persons - that is, of murder in the case of the principal, and manslaughter in the case of an aider and abettor – was plainly stated in R v Nguyen.[44] It was there said that the trial judge had erred by directing the jury, in substance, that the verdicts against the principal and the aider and abettor must be the same – that is, on the footing that the latter could only aid and abet ‘the crime’ committed by the principal.

87 In the present appeal, the offence of which Doubleday was convicted contained all of the essential circumstances of manslaughter by an unlawful and dangerous act. The jury’s verdict of defensive homicide implied findings that Doubleday’s assault on the deceased was unlawful [45] and caused his death. It was not to the point, in considering whether the Crown had proved that the applicant had, by intent, aided and abetted a killing by an unlawful and dangerous act, that the jury had concluded that Doubleday’s subjective intention was to do the victim at least really serious injury. It could not be seriously argued that a reasonable person would not have realised that he was exposing the victim to risk of serious injury. The applicant’s conviction for manslaughter reflects the jury’s conclusion that the applicant had the lesser intent to which the judge referred in the passage cited at [70] above. That is, by intent he aided and abetted an unlawful and dangerous act which caused the victim&#8[46]s death.46 The jury’s conclusion that the applicant had a different intent to Doubleday’s subjective intent was supported by evidence which was admissible only in the case against the applicant.

88 In particular, the jury was instructed that it could only use the record of interview of each accused in assessing the state of mind of that accused. Further, the trial judge ruled that the evidence of the fourth witness as to the words spoken ‘No, [R]ick, no’, was only admissible in the case against the applicant.

89 In his record of interview the applicant expressed his disapproval of the force used by Doubleday in his assault on the deceased:

I’ve hit him either around the – around this area, high up on the body and that was it. I didn’t – I didn’t hit him again and then someone else hit him and hit him hard and I grabbed them and told them to stop.
And – yeah. It was – it was too hard. It was fuckin’ crazy. It was – there was no need for that. There wasn’t any need for that, fuckin’.

90 The jury was entitled to rely upon that evidence in assessing the applicant’s intent in aiding and abetting Doubleday. So also, the jury was entitled to reason that the words heard by the fourth witness were uttered by the applicant, and, whenever uttered, were indicative of a limitation upon the extent of force which the applicant, by his encouragement and support, intended.

91 For the reasons which we have stated, we would reject the second ground of appeal.

Order

92 In our opinion, the application for leave to appeal against conviction should be refused.

---

^[1] Dr Lynch stated that there was clear evidence of one severe blow to the back of the victim’s head. He accepted the possibility that there might have been two blows in close proximity.

^[2] Section 276(1)(a) Criminal Procedure Act 2009 (Vic).

^[3] [1994] HCA 63; (1994) 181 CLR 487, 493-5 (Mason CJ, Deane, Dawson and Toohey JJ). Also see R v Nguyen [2010] HCA 38; (2010) 242 CLR 491, 499 (Hayne, Heydon, Crennan, Kiefel and Bell JJ).

^[4] Giorgianni v R [1985] HCA 29; (1985) 156 CLR 473, 480 (Gibbs CJ) and 493 (Mason J); R v Wong [2005] VSC 96; (2005) 202 FLR 1, 8-9 (Kellam J); Likiardopoulos v R [2010] VSCA 344; Arafan v R (2010) 206 A Crim R 216, 218 [14] (Maxwell P and Weinberg JA); R v Russell [1933] VicLawRp 7; [1933] VLR 59.

^[5] R v Lam & Ors (Ruling No 20) [2005] VSC 294; (2005) 159 A Crim R 448; R v Lowery & King (No 2) [1972] VicRp 63; [1972] VR 560; R v Nguyen [2010] VSCA 23; Arafan v R (2010) 206 A Crim R 216.

^[6] Ibid.

^[7] Giorgianni v R [1985] HCA 29; (1985) 156 CLR 473, 481 (Gibbs CJ), 494 (Mason J) and 500, 503 (Wilson, Deane and Dawson JJ).

^[8] Giorgianni v R [1985] HCA 29; (1985) 156 CLR 473, 479, 481 (Gibbs CJ) and 494 (Mason J).

^[9] Giorgianni v R [1985] HCA 29; (1985) 156 CLR 473.

^[10] R v Stokes & Difford (1990) 51 A Crim R 25; R v Lam & Ors (Ruling No 20) [2005] VSC 294; (2005) 159 A Crim R 448.

^[11] R v Lam [2008] VSCA 109; (2008) 185 A Crim R 453, 478 (Buchanan, Vincent and Kellam JJA).

^[12] R v Beck [1990] 1 Qd R 30, 36-7 (Macrossan CJ).

^[13] R v Lowery and King (No 2) [1972] VicRp 63; [1972] VR 560, 561 (Smith J). See, for example, R v Kepa & Ors [1997] QCA 152; Jefferies v Sturcke [1992] 2 Qd R 392; Roughley v R [1995] TASSC 14; (1995) 5 Tas R 8.

^[14] [2008] VSCA 109; (2008) 185 A Crim R 453.

^[15] Ibid 474-8. See R v Lam & Ors (Ruling No 20) [2005] VSC 294; (2005) 159 A Crim R 448, 455-7, 461 and 472-3 (Redlich J).

^[16] [1990] 1 Qd R 30, 37.

^[17] R v Beck [1990] 1 Qd R 30; R v Lam & Ors (Ruling No 20) [2005] VSC 294; (2005) 159 A Crim R 448.

^[18] White v Ridley [1978] HCA 38; (1978) 140 CLR 342; R v Croft [1944] KB 295.

^[19] R v Becerra [1975] EWCA Crim 6; (1976) 62 Cr App R 212.

^[20] Applicant’s submissions, [12].

^[21] Counsel cited Mackenzie v The Queen (1996) 190 CLR 348 in support of this proposition.

^[22] [2008] VSCA 109; (2008) 185 A Crim R 453.

^[23] Ibid 474-478.

^[24] Ibid 477.

^[25] [1996] VicRp 9; [1996] 1 VR 95, 170. Our emphasis.

^[26] [2010] VSCA 344.

^[27] [1998] HCA 75; (1998) 197 CLR 316.

^[28] Despite conceptual differences between conduct in concert and accessorial liability, there is a commonality of approach which focuses on the mens rea of the accused. See the judgment of McHugh J, with whom Kirby and Callinan JJ agreed, in Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316, 341-350 [69]-[93]. There, his Honour referred to cases both of concert and aiding and abetting.

^[29] (1958) 1 WLR 1050.

^[30] [1998] HCA 75; (1998) 197 CLR 316, 406 [233].

^[31] (1992) 1 AC 34.

^[32] (1952) 36 Cr App R 125.

^[33] [1975] EWCA Crim 2; [1976] QB 217.

^[34] Or a retrial ordered.

^[35] [1976] VicRp 47; [1976] VR 470, 478.

^[36] (1981) 7 A Crim R 204.

^[37] (1980) 25 SASR 427.

^[38] See D Taylor ‘Complicity and Excuses’, [1983] Crim LR 656.

^[39] R v Matusevich [1976] 470 (Young CJ, Starke and Nelson JJ.

^[40] His Honour cited Bourne and Cogan. Our footnote.

^[41] R v Matusevich, 477-478.

^[42] Ibid 480.

^[43] On further appeal to the High Court, the aiding and abetting issue was not the subject of detailed consideration: Matusevich v The Queen [1977] HCA 30; (1977) 137 CLR 633, 637-638 (Gibbs J); 663 (Aickin J).

^[44] [2010] HCA 38; (2010) 242 CLR 491, 502-505, [42]-[50].

^[45] That is, it was an intentional application of force, to which no exculpatory circumstance, such as self defence, attached.

^[46] As this Court said was an available hypothesis in R v Makin [2004] VSCA 85; (2004) 8 VR 262, particularly 273-274 [34]-[37] (Callaway JA).

Authorities Cited25

Referred to (25)