New South Wales Court of Criminal Appeal CITATION : Regina v Andrew [2000] NSWCCA 310 FILE NUMBER(S) : CCA 60373 of 1999 HEARING DATE(S) : 17 May 2000 JUDGMENT DATE : 17 August 2000 Regina PARTIES : v Benjamin Bruce Andrew JUDGMENT OF : Spigelman CJ at 1; James J at 1; Sperling J at 1 LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70071/97 LOWER COURT JUDICIAL Sully J OFFICER : T A Game QC (Appellant) COUNSEL : M Grogan (Crown) D J Humphreys (Appellant) SOLICITORS : S E O'Connor (Crown) CATCHWORDS : Criminal law - manslaughter by an unlawful and dangerous act- causation of death CASES CITED: Royall v R [1991] 172 CLR 378; R v Moffatt [2000] NSWCCA 174. DECISION : Appeal allowed - order a new trial. IN THE COURT OF CRIMINAL APPEAL CCA60373/99 SPIGELMAN CJ JAMES J SPERLING J Thursday, 17 August 2000 REGINA v ANDREW JUDGMENT 1 THE COURT : On 19 April 1999, the appellant was indicted at the Supreme Court on the following charge: That on 19 May 1990, at Artarmon in the State of New South Wales, he did murder Wayne George Tonks. The appellant pleaded not guilty. On 30 April 1999 the jury returned a verdict of guilty of manslaughter. 2 The appellant has appealed against the conviction on the following grounds: (1) The trial judge erred in his directions on causation and on the act or acts said to have caused death. (2) The trial judge erred in his directions on unlawful and dangerous act manslaughter. (3) The trial judge erred in his directions on self defence as it related to manslaughter. (4) The trial judge did not adequately or fairly put the defence case. The Course of the trial 3 The opening address by the crown prosecutor has not been transcribed, if it was recorded. There is a record in the transcript of the counsel for the appellant having made an opening statement at that stage. Likewise, that has not been transcribed, if it was recorded. It is apparent, however, from the course of the trial that it was the crown's case that the appellant, with a companion, Peter Clive Kane, went to the deceased's flat on 19 May 1990 with the intention of killing the deceased; that they took with them a baseball bat, adhesive tape and a plastic bag; that the appellant hit the deceased over the head with the baseball bat and bound the deceased up with the tape; that the plastic bag was put over the deceased's head and taped tightly around his neck; and that the deceased died from suffocation. The crown was not in a position to prove which of the two assailants put the bag over the deceased's head or which of them taped the bag around his neck. 4 Evidence called early in the crown case related to what was found at the crime scene. Constable Kenyan attended the premises on 21 May 1990. The victim's body was lying on the floor of the lounge room with a plastic bag over his head secured by adhesive tape. The body was also bound by tape at the ankles, knees and hands. Later that day, Detective Keeling attended the scene with Dr Duflou, forensic pathologist. The plastic bag was removed. It then became apparent that the ears, eyes and mouth of the deceased were also bound with the adhesive tape, but not the nose. There was a deep laceration on the right hand side of the victim's head. Dr Duflou commented further on the plastic bag in his evidence. He said it was tightly secured around the neck at its lowest point. 5 Dr Duflou said that the deceased died from suffocation. He also said that the blow to the head, evidenced by the laceration, was, in itself, insufficient to cause death. He added, however, that, in his view, it contributed to the death because it made it easier for the bag to be placed over the deceased's head. We will come to the evaluation of that approach in accordance with legal principle later in this judgment. 6 At an early stage in the trial, the trial judge properly sought to identify the real issues in the case and to avoid time being taken on matters which were not in dispute. Detective Senior Sergeant Lovie gave evidence that he conducted a fingerprint examination. The trial judge intervened. He said that, as he understood counsel's opening statement, there was no dispute about fingerprints. Counsel confirmed that this was so. He had already prepared formal admissions in that regard. These were tendered as exhibit G. So far as is presently relevant, these were to the effect that the appellant's fingerprints were found on the tape attached to the deceased's ankles, knees, eyes and mouth, but that no fingerprints of the appellant were found on the bag and tape on the deceased's head. More importantly for present purposes, his Honour observed in the course of discussion about the fingerprints: "If the real issue is self-defence, as it looks to be, then let us not take a day arguing about technical evidence and comparative charts and all that sort of thing." There was no demur by counsel for the appellant to the judge's suggestion that the real issue was self defence. 7 Later in the trial, the crown prosecutor indicated that he wished to call Kane and sought an order abridging the time for service of a subpoena. There was apparently then some discussion which has not been fully recorded but as the discussion proceeded, a full record was made (Tr 94): "IN THE ABSENCE OF THE JURY CROWN PROSECUTOR: The Crown wishes to call Peter Clive Kane, the other accused whose trial is next week in this trial and he has not been subpoenaed. The Crown seeks an order of the Court that a subpoena be issued for this trial and seeks the time for service of this subpoena be abridged. There is a draft order, if your Honour makes the order being sought with a supporting affidavit. Might I tender the draft order, and the supporting affidavit of Mr Higgins. BYRNE: My recollection is that I simply said he did not do that physical act. DISCUSSION HIS HONOUR: I have myself given some consideration understanding what actually might be entailed in the way you opened that part of the defence case yesterday. I took it that you were not disputing that at the very least the present accused was a principal in the second degree in the sense that he was there actively taking part in the total enterprise of which a material segment was the placing, let us assume, over the head of that bag (sic) and it is clear in the way the evidence is - am I misapprehending the way in which the defence is to pan out? BYRNE: No your Honour. I used words which - without precisely putting the position of the accused generally covered the situation that he wasn't the person who actually put the bag - that is what I anticipate he will say. HIS HONOUR: But the two of them went there together for a joint purpose. BYRNE: Yes I think that is probably right. HIS HONOUR: One or other of them struck the blow which caused the head injury which we heard described this morning. Before both of them set upon the victim. They both then set upon him and bound him in a way shown in the photographs and in a unbroken continuum of assault, one or other of them put the bag on his head and secured in such a way that it was inevitable that he would suffocate to death. They left him lying on the floor. Nobody raised an alarm. They just left him in that condition. If he is not to be present to be called we won't have any splitting of the hairs about who was present doing what. BYRNE: I feel in a position at the moment to answer that question but I would prefer before answering it to confirm certain things with my client." 8 The hearing was adjourned until the following morning. When the hearing resumed, the discussion continued (Tr 95-96): "BYRNE: So far as the issue that was raised yesterday afternoon is concerned, I do have a copy of the transcript that your Honour's tipstaff has made available to me first thing this morning. The issues, as I understand them from what your Honour raised yesterday, are, firstly, the evidence that is likely to emerge in the case regarding the placement of the bag on the head of the deceased. HIS HONOUR: I am assuming that if Mr Kane is called, he will say either that the accused put the bag on the head of the deceased or that they both did. CROWN PROSECUTOR: He's going to say "I don't know". According to his record of interview with the police, he said "I don't know who put the bag on his head". BYRNE: If it does go further than that in his record of interview, he was asked the question "Did you, Peter Kane, put the bag on Mr Tonks' head?", and he said "I don't know", I think the immediately following question was "Did you see Ben Andrew put the bag on his head?", and he said "No". I don't know if your Honour has these materials up with you. I understand that my learned friend would be relying on what Mr Kane said in his record of interview, the second of them, and that is my understanding of what he said. Can I say this. In conference with the accused before your Honour now, he accepts that he knew the bag was on Mr Tonks' head when he left the unit. He doesn't seek to avoid responsibility for the consequences of that knowledge by saying, as he would say, that it wasn't he who put the bag on Mr Tonks' head. He says that it was Mr Kane who did that, but he accepts he doesn't seek to in any way say that that was something that was an act of which he was unaware. So that the responsibility for that action of Mr Kane is one which is carried squarely on his shoulders, and he accepts that position. HIS HONOUR: Mr Crown, where do we go from here? CROWN PROSECUTOR: That would be sufficient for our purposes. I would not seek to call Mr Kane. HIS HONOUR: In those circumstances, I think that is pleasing because it would make all sorts of complications for the following trial. Then, we will leave it at that shall we. BYRNE: There is one matter, and your Honour will appreciate its a rather difficult position to, in effect, be putting the defence case in the way that it is put here. There is an issue, as I understand it, about which Mr Kane was not questioned and about which he would not be able to give evidence - I'm not sure of the position, it's certainly not contained in his record of interview - but when the concession is made or the admission is, made perhaps more appropriately, that the accused Benjamin Andrew knew that the bag had been placed on Mr Tonks' head but he didn't know because he didn't actually put it there the extent to which that binding was as tight as it apparently was when it was found, that is in issue. HIS HONOUR: Why? It would be an issue if the suggestion were that the deceased had been strangle (sic) by the tape. Why is it an issue of a context of fact where the accused suffocated because he couldn't get the bag off his head? BYRNE: Your Honour has perhaps answered the question and I don't need to take it any further, but I felt, with respect, that it's a matter that my instructing solicitor felt was a matter that should be put in this context. He acknowledges his responsibility for what Peter Kane did in relation to the bag because he was there acting, as it were, in a joint enterprise with him and he accepts the legal responsibility that flows from the act committed by his co-offender. HIS HONOUR: In the course of carrying out a joint enterprise. BYRNE: Yes I accept that." (Emphasis added) 9 Although Kane had said in his record of interview that he did not know who put the bag over the deceased's head and that he did not see the appellant do so, it was plainly not in the appellant's interests for Kane to be called. The appellant's counsel could not be sure what he would say and there was a serious risk that, on this topic or on some other topic, he might well say something prejudicial to the appellant. 10 The following matters are to be noted in relation to the discussion with counsel. Counsel for the appellant told the judge that the appellant accepted legal responsibility for whatever flowed from the putting of the bag over the deceased's head, and he agreed that this was so because it was done in the course of a joint enterprise entered into between the appellant and Kane. It did not matter, therefore, which of them did that act. Counsel then drew a distinction between putting the bag over the deceased's head and the binding being as tight as it apparently was when the deceased was found. He said the appellant knew of the bag over the head but he did not know the extent to which the binding was as tight as it was. The point was made with some hesitancy, as something counsel's instructing solicitor wanted him to say. The judge suggested that this was not a relevant issue if the deceased suffocated because he could not get the bag off his head. Counsel's response was non-committal. Whether there was a relevant distinction to be drawn between the bag being over the head and the bag being bound tightly around the neck was left open at this stage. 11 Detective Sergeant Yeomans was the last witness in the crown case. In cross-examination, counsel sought to adduce evidence from him in relation to the deceased's lifestyle. This was objected to. The trial judge allowed the evidence. In the course of a judgment in that regard, given on 12 April 1999, the trial judge again conveyed his understanding of the issues in the case: "As far as I am concerned, the issue in this trial is whether the accused acted in self defence, in the sense, and in the very particular sense, recognised by the law; or whether he did what he unquestionably did under the impetus of provocation, in the sense, and the very particular sense recognised by the law. So that there will be no mistake about the matter I indicate at once that I do not imply by what I have said any reversal of the onus of proof or anything of that kind. I say, simply, that in the real world the issues that the jury are going to have to decide are those issues of self defence and provocation." Counsel did not demur to these observations. 12 The appellant gave evidence in his own case. He gave evidence of an alleged prior sexual assault by the deceased on him, and of going to the deceased's flat with Kane to confront the deceased about that. When the appellant came to give evidence concerning the episode on 19 May 1990, he said that he saw Kane put the bag over the deceased's head and that he personally accepted responsibility for that, but he did not see tape being placed around the deceased's neck and he did not know that that had been done by Kane. The following is an extract from his evidence in chief (Tr 205): "Q. Did you put the bag over his head? A. No. Q. Do you know who did? A. Peter placed the bag over his head. Q. Did you see him do that? A. I saw Peter pull the bag onto Mr Tonks' head. Q. Did you do anything when you saw Peter Kane do that? A. No, I didn't. Q. Did you see whether Peter Kane did anything after he pulled the bag over Mr Tonks' head? A. No, I didn't. I saw Peter pull the bag over his head. Q. Did you leave the unit after that? A. A short time after, yes. Q. Did you say anything to Peter Kane? A. No. Q. What did you think when you saw the bag placed on Mr Tonks' head? A. I thought Peter was just giving him the fright of his life. Q. Do you know that there was tape placed around Mr Tonks' neck? A. I didn't. I didn't know that at the time. Q. Was there anything else that you did in the unit before you left the unit that you remember? A. We couldn't get out of the unit. It was deadlocked and I took some time to locate the keys to that deadlock, and when I did, we left." And (Tr 206): "Q. Mr Andrew, you said that you knew that Peter Kane had placed this plastic bag on Mr Tonks' head. Do you personally accept responsibility for that action , even though it was not you who personally placed the bag there? A. Yes, I do." 13 The following is an extract from the appellant's evidence in cross-examination (Tr 237): "Q. You didn't put the bad on his head? A. No. Q. You didn't see Peter Kane do that? A. I saw Peter put the bag on his head, yes. Q. Who bound his neck? A. I accept now that Peter did, but I didn't see it being taped up at all. Q. But you saw, before you left the unit, that his head was in the plastic bag? A. I saw Peter put the - pull the bag over his head, yes. Q. You saw, before you left the flat, the unit, that his head was in the bag? A. Yes. Q. You knew once he was bound up that he could not have been any further threat to you? A. That's right. Q. What was the reason for, do you know, of putting the bag over his head? A. I do not. Q. Peter didn't say anything to you like "I'm going to put the bag over his head?" A. No. Q. You knew that he would suffocate once the bag was over his head didn't you? A. No. I thought that he would rub his head on the carpet and free himself from the bag. Q. Well, why didn't you go over and take the bag from his head when you saw the bag on his head? A. I just wanted to get out of there. I wish I had have. Q. The bag was secured to his neck with more tape. Did you see Peter Kane putting tape around his neck? A. No, I did not. Q. Obviously that took some time to put the tape around his neck. What were you doing? A. (Witness nodded.) HIS HONOUR: Q Is the answer to that question yes? A. Yes, it would have put a time to put the tape on. CROWN PROSECUTOR: Q. What were you doing? A. I was searching for the keys to the front door which was deadlocked, and eventually I found them and opened the door and we left." 14 The following is an extract from the appellant's evidence, given in answer to questions by the trial judge (Tr 245): "Q. The only other thing I wanted to ask was this, at what stage in the course of events did you last cast a glance in the direction of Mr Tonks lying on the floor. A. Can you repeat that for me your Honour? Q. At what stage in the course of events in the flat on the second visit and before you found his keys did you last cast a glance in the direction of Mr Tonks lying on the floor? A. I last cast a glance at Mr Tonks lying on the floor when I saw Peter pull the bag over his head at which stage I was standing at the front door, in that area looking for the keys, and Mr Tonks was here (indicated) and Peter was here (indicated) facing him, pulling the bag onto his head. Q. And about how far away from you was Mr Tonks lying on the floor? A. Approximately from here to the start of the dock, your Honour (indicated 30 feet). Q. And last thing you saw was Mr Kane pulling the bag over Mr Tonks' head, is that right? A. That is right, your Honour." 15 A distinction now was clearly being made between the appellant seeing the bag being placed over the deceased's head and the appellant seeing the bag being taped by Kane or having been so taped. The appellant's acceptance of responsibility (whatever that meant) related to the bag being placed on the deceased's head. It did not relate in terms to the bag being taped. Whether that mattered was not made clear at this stage. 16 Before counsel closed the case for appellant, there was discussion between the trial judge, the crown prosecutor and counsel for the appellant (Tr 247-254). His Honour told counsel that he proposed to provide the jury with what he described as a "written index", formulating the questions which the jury had to resolve. His Honour went on to say (Tr 252): "I think that to sit up in front of the jury and to say in narrative form "The material ingredients of the crime of murder are one, two and three" is likely to confuse rather than to assist them. I prefer to put into their hands a document that says "Question one: Has the Crown proved beyond reasonable doubt that the deceased died on or about such a date? If so, question two: Has the Crown proved beyond reasonable doubt that the cause of the death was suffocation?" - which will be the case here - "If so, question 3: Has the Crown proved beyond reasonable doubt that the act which brought about the death was the act of the accused", and so on and so on." 17 In substance, these were the first three questions which his Honour later put to the jury as being what they had to decide. His Honour then went on to outline the questions and commentary which he intended to put in the document relating to self defence and provocation. The crown prosecutor's final address 18 The crown prosecutor addressed on the basis that it was common ground that the appellant was guilty of murder, subject only to the issues of self defence and provocation. The crown prosecutor did not say so in terms. However, this was the clear implication of his approach. We provide the following extract from the transcript of the crown prosecutor's address (Tr 256): " As you have been made well aware, the accused is charged with the murder of Wayne Tonks on 19 May 1990 at Artarmon. The accused, it is alleged against him, went to those premises on that date 19 May 1990, with the man Peter Kane, and with Peter Kane killed the deceased man Wayne Tonks; that when they killed him, they had the intent to kill him, they deliberately killed him. They had the intent to kill him. You might not have much difficulty in finding that both men killed Mr Tonks. It was put to the accused - when he was giving his evidence, this was by his counsel: "Q. Mr Andrew, you said that you knew that Peter Kane has placed this plastic bag on Mr Tonks' head. Do you personally accept responsibility of that action, even though it was not you who personally placed the bag there? A. Yes, I do." In view of that concession, members of the jury, you might not have much doubt that the accused was as responsible as Peter Kane, on the accused's contention, as to the event that occurred of the crime of murder." (The transcript of the crown prosecutor's address does not incorporate the whole of the question and answer quoted by him. We have incorporated it above.) 19 A little later, when dealing with the evidence relating to character, the crown prosecutor said (Tr 259): "Well we know members of the jury, that he accepts the responsibility for the death of Mr Tonks." The implication was that this was so, subject to what was truly in issue, self defence and provocation. 20 The crown prosecutor queried the reliability of the appellant's evidence in relation to the alleged prior sexual assault. He suggested that the appellant had been a willing participant in what, if anything, had previously occurred between the appellant and the deceased. He invited the jury to find that the appellant and Kane had gone to the deceased's home intent on doing violence to him. He queried whether the deceased provoked the attack. He suggested that the violent behaviour was all one way: the blow to the head, the trussing up, the terrorising. He submitted that the bag was put over the deceased's head for only one reason, and that was to kill him. He again suggested that the appellant and Kane went to the deceased's flat to kill him. All these matters went to self defence and provocation. In the balance of his address, the crown prosecutor dealt explicitly with these issues. He dealt with each of the sub-issues which arose in connection with them, in detail and with references to the evidence. Counsel for appellant's final address 21 In his address, counsel for the appellant made submissions in answer to the attack on the appellant's reliability as a witness and in support of the appellant's account of events leading up to the assault on the deceased. 22 He went on to submit that the jury would not find that the appellant had the specific intent necessary to establish the crime of murder (Tr 288-9): "(O)n all the evidence that you could not reach the conclusion that when he was there he had an intention to kill Mr Tonks or to inflict grievous bodily harm on him. It was patently clear that he wanted to hurt him. It was patently clear that he wanted to subject him to some real pain, but not inflict, what the law regards as grievous bodily harm, and certainly not to kill him …[I]f Ben Andrew had wanted to kill Mr Tonks then he would have done it. He would either have bashed him to death, as it were, with the weapon that he had or he would have used that tape in a manner which ensured that he would die. All of the evidence that you have is completely to the contrary. He used the baseball bat - the miniature baseball bat in a way that stunned him. It was a savage assault, not one intended to kill, and he used the tape deliberately in a way that would enable him, as he said, to breathe. That is anything but an intention to kill somebody." The submission went to whether the appellant should be convicted of murder, absent self defence and provocation. 23 Following some discussion, not presently relevant, the trial was adjourned for the weekend, to be resumed on the following Tuesday. The record on resumption of the trial shows that the trial judge had sent a draft of his proposed written directions (a "general principles of law index", as the trial judge called it) to the crown prosecutor and counsel for the appellant over the weekend. Counsel for the appellant had raised some objections. The trial judge said he would revise the document. 24 Counsel for the appellant now resumed his address. He took up his previous theme. He again submitted that the appellant's conduct on the day did not establish an intention to kill. He submitted that the jury should accept the appellant's evidence that he did not see the tape on the bag. Death was unintended, he said. 25 Counsel also argued for self defence, submitting that the appellant's conduct was motivated by a perceived need to protect himself. He returned to specific intent. He said (Tr 296): "If you are satisfied that there is no intent to kill or inflict grievous bodily harm, then you would not be satisfied that he was guilty of murder." 26 Counsel then submitted that the jury would not find the appellant guilty of manslaughter by an unlawful and dangerous act. 27 Counsel again returned to specific intent. He asked the jury to accept that the accused thought that putting the bag over the deceased's head would serve only to frighten him. The appellant thought, he said, that the bag was not bound at the neck and that air would flow in and out of the bag from under his chin. Counsel invited the jury to find that what the appellant said about his belief at that time might be true. 28 Counsel then said that the appellant had accepted only moral responsibility for the bag being put over the deceased's head. He said (Tr 298): "The first thing is that it is true to say that Ben Andrew has acknowledged his responsibility for what Peter Kane did in placing the bag over the head of Mr Tonks. He is not seeking to escape the moral blame. He's acknowledged that he's morally responsible, but moral responsibility and criminal guilt are different things. He may be at fault. He may be responsible, but that doesn't make him guilty of the crime that he's charged with: Murder or manslaughter. Those are two distinctly different things. There is his moral responsibility for what happened and the question of criminal guilt. The question of moral responsibility has been decided long ago. It will never be changed. He will always regard himself that way. The question of criminal guilt is another question altogether. That is the decision you have to make." This was different from what counsel had said to the trial judge in the course of earlier discussion, namely, that the appellant accepted legal responsibility for the bag being placed over the deceased's head. 29 The address was a radical change of position by counsel for the appellant. He had previously acquiesced in the position that the only live issues were self defence and provocation. Now he invited the jury to acquit the appellant of murder because the appellant did not have the requisite specific intent, and to acquit of both murder and manslaughter because the appellant did not know of the act causing death, namely, the taping of the bag at the neck. These submissions were independent of any question of self defence or provocation. Indeed, there was scant reference to self defence in the address and none to provocation. Discussion before summing up 30 Nothing was said, at this stage, by the crown prosecutor or the trial judge about the change of position by counsel for the appellant. There was a further short reference to the proposed written directions. The judge deferred providing the jury with the written directions at this stage because of objections raised by counsel for the appellant. 31 It appears that the communications out of court between the trial judge, the crown prosecutor and counsel for the appellant and such discussion as there was in court with regard to the proposed written directions related to the form of the questions his Honour intended to put to the jury, rather than to the way the crown put its case and the questions that flowed from that. The basis, in fact and law, on which the crown put its case, absent self defence and provocation, was not settled before the summing up. The summing up The summing up was given over a period of three day, broken by discussion with counsel in relation to a variety of topics. Tuesday, 27 April 1999 32 Following preliminary instructions of a general nature, the trial judge posed a series of questions for the jury's consideration. The first question was: Has the crown proved beyond reasonable doubt that the victim Wayne George Tonks died on 19 May 1990? The judge said he assumed that that would be answered affirmatively. 33 The trial judge then posed, as the second question for the jury: Has the crown proved beyond reasonable doubt that the cause of his death was suffocation? His Honour referred to the evidence, concerning the blow to the head delivered by the appellant and to the evidence of Dr Duflou in that regard (Tr 40-41): "Q. Did you come to an opinion as to the cause of the deceased's death? A. Yes I did. I concluded that the cause of death was suffocation and I further concluded that the head injury contributed to death but did not directly cause it. Q. What do you mean by that? A. The head injury would almost certainly have stunned the person, if not made the person unconscious. As a result of this stunning or causing of loss of consciousness, any further action for instance placing gags or suffocating the person - by placing the plastic bag over the head would have been easier so in that way it contributed to death. It did not contribute to death for instance causing extensive bleeding or causing a fatal head injury." 34 His Honour went on to say (summing up 52): "So that is the evidence, suffocation, the cause. The head injury capable of contributing to the death in the way described in the answer I latterly read to you but not itself the primary cause of death. So much for question 2." 35 The reference to the head injury moved into the area of the next question, question 3, introducing an issue as to whether the blow to the head caused the deceased's death by suffocation. His Honour posed the next question, question 3, as follows: Has the crown proved beyond reasonable doubt that such suffocation was caused by the act of the accused? In relation to that question, his Honour directed the jury as follows (summing up 52-54): " That is a matter which will require some fairly careful consideration by you . First of all what is the act that caused the death of the accused by suffocation? Was it only the act of the placing by Mr Kane of the plastic bag over the head of the accused (sic) or was it that action combined with the undoubted fact that at the time when the bag was placed over Mr Tonks' head he was lying on the floor of his living room secured at the ankles, the knees, the hands, the mouth and the eyes by that vivid green industrial strength tape. And he had, on the bulge of his head , a wound the force of which had caused not only the tearing of the skin that Dr Duflou described in the passages that I latterly read to you but also caused a bruising, admittedly in two small areas, to the various surfaces as described by the doctor, of the brain. Let us assume for the moment and in the accused's favour that the view that you take was that the act causing death was the act of putting the bag over the head of the dead man. Let me rather say: putting the bag over the head of Mr Tonks as he lay on the ground. I did not mean to convey that he was dead at the time. That takes, I would suppose, the view of the facts most favourable to the accused. And it sets aside for the purpose of discussion Dr Duflou's view that the blow to the head, although it could not in itself have been fatal, could well have contributed in the sense described as I read to you a moment ago. On the view most favourable to the accused that the act of suffocation was the pulling the bag over the head of the man as he lay in that condition on the ground, is it open to you to find that the Crown has proved beyond reasonable doubt that the act was the act of the accused? You will recall that the accused during his evidence was asked about this question of responsibility , for that final act which brought about in time the suffocating of Mr Tonks. Once again there are only five lines of it but I want to give it to you in the words of the accused itself so it would not be said later that what you got was some version which did not do justice to what he in fact had said. (Transcript page) 206: I will lead into it with a question which I take from around line 30 on that page. Again these are questions put to the accused by his own senior counsel. He was asked: "Q. You said that you struck Mr Tonks after he placed a video cassette in the video cassette recording machine? A. Yes, he was about to push it into the video as I hit him. Q. Mr Andrew, you said that you knew that Peter Kane had placed this plastic bag on Mr Tonks' head. Do you personally accept responsibility for that action even though it was not you who personally placed the bag there? A. Yes I do." It is an important point ladies and gentlemen. I don't think there is any other place where that question of responsibility is placed certainly in - it may have been - I think what I read is as much as was said about it - but it is an important point if counsel wish to - …" (Emphasis added.) 36 We will come shortly to what then passed between the trial judge and counsel. First, we make the following observations about the foregoing directions. His Honour began by posing the question as to what was the act that caused the death of the deceased by suffocation. This opened up, as a question for the jury, whether the blow to the head and the immobilisation of the deceased - both of which were acts of the appellant himself - could be regarded as the cause of the deceased's death. His Honour linked that question with the appellant's evidence about responsibility. 37 The burden of this part of the summing up was this. Assuming in the appellant's favour that it was Kane who did the final act resulting in death, the appellant's acts or one of them - striking the deceased on the head and trussing up the deceased - might nonetheless be found to be the cause of death. 38 No other instruction was given concerning the way causation was to be resolved according to legal principles. 39 Immediately following the foregoing passage in the summing up, counsel for the appellant objected to what the trial judge had said about the view most favourable to the accused being that the act causing death was the act done by Kane of placing the bag over the deceased's head. Counsel said there was a fundamental distinction between placing the bag over the head and tying the bag around the neck. (He meant "taping".) This was in the presence of the jury. His Honour called on the crown prosecutor, who read part of the cross-examination of the appellant which we have quoted, being the passage where the appellant said he saw Kane put the bag over the deceased's head but that he did not see the bag being taped. His Honour resumed the summing up, saying that he was not suggesting that the evidence established that the appellant taped the bag in place or that the appellant saw that being done by Kane. This, however, did not alter the thrust of what his Honour had said about the way in which it was open to the jury to find that the appellant's own act or acts constituted the cause of suffocation and death. 40 His Honour then told the jury how they might find the appellant guilty as a principal in the second degree. This related to the appellant's potential responsibility for what Kane did. The passage in the summing up is as follows (summing up 55-59): "What I am saying to you is that, irrefutably, it is evidence out of his own mouth that he saw the bag being pulled over the head, and for myself I don't know how one could put the facts in a way more favourable to him than that, in other words than by limiting his knowledge to knowledge of the fact that the bag was being pulled over this man's head by Peter Kane and nothing more. That is what I meant when I said one can take a view most favourable to him by saying that his only knowledge of the bagging of Mr Tonks' head was as seen as he admits he did see his friend Peter Kane actually pulling it over him. There is more. You were asked to bear in mind that there is a difference, as there most certainly is, between what one might call, in ordinary English expression, moral responsibility for an act and criminal culpability for the same act. Let there be no mistake about it. There is a complete dichotomy between those two notions. Well, what I am about to put to you in connection with this third question has nothing to do with moral responsibility, it has to do with the view that the law takes of facts as I have sketched them for you; in other words, the view that the law takes of a situation in which one person pulls the bag over the head of the deceased man and the other does not pull the bag over or do anything else with the bag, but sees that the other is doing the pulling. That's the situation to which I'm addressing what follows. Beyond any question, you might think - although it is a question for you only of course - these two young men went to the unit by prior arrangement. Nobody suggests otherwise. You might think, but it is a matter for you, that part of the prior arrangement, on the view most favourable to the accused, was that the accused was going, as he, himself, put it, verbally to abuse the deceased man; but that if it became necessary to protect himself, he was prepared, as he put it, to hit him, and for that purpose took the mini bat with him, baseball bat with him. What happened in the unit, you might think, was something that involved, from first to last, the two young men who had gone in company for that very purpose of confronting - I don't say of killing - of confronting verbally, to say the very least, the dead man. If two people go on such an errand and one of them pulls a plastic bag over the head of a man in the condition of Mr Tonks, as the evidence undisputed, describes that condition, then obviously the person who does the pulling is what the law calls "a principal in the first degree". He is, that is to say, the person who actually does the act. If the act brings about the death of the person to whom it is done, he, the principal in the first degree, is exactly that, he is the person primarily liable for the consequences of what he did. But his friend who is there when he does it, who sees what he is doing, who has an opportunity to intervene and to stop what is going on and who elects not to do that, is what the law calls "a principal in the second degree"; that is to say, although he does not do the primary act himself, he knows it is being done and he gives, either expressly or by implication from the way in which he speaks and acts, assent and encouragement to what is being done. In that event, he is as liable as the person who actually pulled the plastic bag onto the head of the man. It isn't a question of fine philosophical distinction based on the loose concept of moral responsibility, it's a straight question of law. In such a situation as I have described, both are liable: The one because he did the act; the other because his behaviour was of such a character as to lend assent and support and encouragement to what was being done. Now, those are directions of law, and it is for you to apply them to the facts as you find them. One fact that you might think you could find without any difficulty at all, but it is a matter for you, is that, in fact, Peter Kane pulled the bag over the head of Mr Tonks as he lay on the ground and in the condition that has been described to you earlier this afternoon. Another fact that you might think you can find, for it is a fact established clearly out of the mouth of the accused himself, is that he saw the bag being pulled over the head of the deceased man. He says it in plain terms in the passages that I have read to you. As I understand the evidence, and I'll be corrected if I am mistaken, - and if I am mistaken I will administer the necessary correction to you, - the evidence does not suggest impediment to the accused of having been able, had he wished to do it, to protest to Peter Kane. You might think that, but it's a matter for you, they were standing fairly close together in what I described this morning as an average size living room and an average size dining area in an average kind of suburban unit block. Do you think that on the evidence such as it is, it is fair to find that the accused saw what Peter Kane was doing and was content to let him do it; at least to the extent of pulling the bag over the man's head? I say again, that assumes in his favour that he is to be believed when he says that he did not see Peter Kane tape up the bag. I say nothing about that, except to remind you that that is an issue of fact that you must resolve. The accused has given you sworn evidence to the effect that he did not, at any time, see Peter Kane tape up the neck of the bag. He has given sworn evidence to the effect that he did not ever see before he left the unit that, in fact, such tape had been applied to the neck of the bag. It is a matter for you as to whether or not you believe that version of events that the accused has given you. And I say nothing about that, for it is a question for you and not for me. If you don't believe him, then the principles of law, as I have explained them to you, cut in, if I may put it that way, in a much more sharp and precise way. But if you do believe him, if you are prepared to give him the benefit of any doubt that you might have as to whether or not he saw the tape put in position, there is no denying, on his own version, that he saw the bag put on; and if you think that it's fair to assume that he implicitly assented to that happening, then I tell you as a matter of law he is as guilty of the consequences and as responsible for the consequences as if he had been the person who had primarily put the bag in position." (Emphasis added.) 41 The only acts mentioned in this passage were those of Kane, the bag over the head and the taping of the bag. That is to be expected. The passage had, as its central objective, a direction to the jury as to how the appellant might be held liable in law for acts done by Kane. There was no implied withdrawal, therefore of the earlier direction that the appellant's own acts - the blow to the head and the trussing up - were in the ring for consideration, along with Kane's acts, as the cause of death. 42 We need not stop to examine the directions given by the trial judge concerning the legal test for liability of a secondary party as a principal in the second degree. No criticism was made of his Honour's directions in that regard either at the trial or on appeal. Following that part of the summing up, objections were raised by counsel for the appellant. Relevantly, objection was taken to the directions in relation to the third question formulated by the trial judge. It is unnecessary to specify the objections here. The discussion with counsel extended into the following day. Wednesday, 28 April 1999 43 When the summing up resumed, the trial judge provided the jury with a document which included the following questions: "Question 1 Has the Crown proved beyond reasonable doubt that the victim, Wayne George Tonks died on 19 May 1990? If so, then: Question 2: Has the Crown proved beyond reasonable doubt that the cause of his death was suffocation? If so, then: Question 3: Has the Crown proved beyond reasonable doubt that such suffocation was caused by the act of the accused? …." 44 The trial judge now revisited the third question. He said (pages 92-96): "It is appropriate now that you have the document to go to question 3 and to think a little more particularly about some matters arising in connection with that question. Bound up in question 3, as I have set it out for you, is what I might call a "sub-question"; that is to say, if you are satisfied that the cause of death was suffocation, that is to say the primary cause of death was suffocation, what do you find to have been the act that caused the suffocation? It is possible to answer that question in a number of ways. One can answer it by saying that the act that caused the suffocation was the act of putting the bag over the head of the dead man. One can say that the act causing death was the act of putting the bag over the deceased's head and then securing it in place with the green industrial strength tape that you will see fixed in that position in the relevant photograph among the photographs making up exhibit M. One can answer the question that the cause of death was the act of putting the bag over the deceased man's head at a time when he was suffering the effects of the blow described in part of Dr Duflou's evidence that we looked at yesterday, and when he was otherwise immobilised by the liberal application to his ankles, his hands, his mouth and his eyes of that industrial strength green tape. Or, one can take the view that the act causing death was the act of putting the bag over the deceased's man's head when he was in that condition and then taping it in position. It is important for you to answer, in connection with question 3, what I have thus described as the first sub-question, so to speak, that arises in connection with question 3. When you have done that, then it is necessary for you to ask the second sub-question, if I may so describe it, that is bound up in question 3; and that is whether the Crown has proved beyond reasonable doubt that the act that caused the suffocation, however you find it on the evidence; was the act of the accused, either in the sense that he actually did it himself, or in the sense which I explained to you yesterday, and need not repeat, that although he did not do it himself, he was party to it. His case is that he saw Peter Kane pull the bag over the head of the deceased. His case is that he thought that if that is all that happened, there was nothing to stop the deceased breathing, because if all that happened was that the bag was pulled over his head, then, notwithstanding, with his then condition, with his head wound and his industrial taped limbs, eyes and mouth, he would have been capable of surviving on the air that he drew in under the edges, as it were, of the bag on his head. His case is that what really caused the death was not the placing of the bag on the head, but the placing of the bag on the head and its then taping into position in the way that you see in the relevant photograph in exhibit M. His case is that he did not see Peter Kane apply that tape. His case is that not only did he not see Peter Kane apply the tape, he did not see the tape in position, ever. The question for you, as we discussed yesterday, comes down in the end to, and yet again, and not for the last time in this discussion that we are having: Do you believe him? Do you believe that he saw the bag being pulled over the head, but did not see the tape being applied? Do you believe that if he didn't see the tape being applied, he didn't see it at any time after it had been applied? You will have to test that as best you can, having regard to the things that we discussed yesterday; having regard, that is to say, to the view that you formed of his credibility; to the view that you formed of him when you saw and heard him give evidence in the witness box; to the questions of space and distance that we discussed yesterday. … Then, as I say, having satisfied yourselves as to what act causing suffocation the Crown has actually established, you must ask whether you are satisfied that that act, as you have found it, is an act, is one for which the accused is liable, that is to say legally liable , either because he did the act himself , or because he gave his assent and encouragement in the act in the way that I discussed with you yesterday. That is what I want to say about question 3." (Emphasis added.) 45 The main focus of this passage was Kane's acts and how the appellant might be held responsible for them. But it was made clear at the end of the passage, by the words we have emphasised, that the accused's own acts were not withdrawn as being available for consideration as the cause of death. 46 At the conclusion of the summing up, counsel for the appellant asked the judge to discharge the jury, or to withdraw his summing up, or to redirect the jury in a number of respects which it is unnecessary to review. 47 In the course of the application by counsel for the appellant, the crown prosecutor also asked for the jury to be discharged. He said he had been led to believe that the only live issues were self defence and provocation, that he had refrained from calling Kane as a witness on that basis, that he had cross-examined the appellant on that basis, and that he had addressed on that basis. This was plainly correct, but the trial judge took the view - as he was entitled to do - that the crown prosecutor was put on notice of the change of position by counsel for the appellant while the appellant was in the witness box. 48 The discussion with counsel extended into the following day. 49 Having declined to discharge the jury on either application, the trial judge agreed to supplement his summing up in response to some of the points raised by counsel for the appellant. Thursday 29 April 1999 50 When the summing up was resumed, his honour said to the jury (summing up 173-6): " I don't want to correct anything that I said you yesterday , but I do want to correct something that I said to you, one or two things that I said to you, on Tuesday afternoon, for I don't want there to be any confusion as to these directions; and in particular, I don't want what I said to you yesterday, by way of directions on question three, to be confused, or otherwise to miscarry by reason of what was said on Tuesday. Let me begin by saying this. On Tuesday, I told you on two or three occasions in a comparatively short part of the summing-up that a particular available view of the facts might be thought to be a view that put the facts at their most favourable in the accused's interest; or that they were - that so to state the matters, was to state them in the way most favourable to the accused. You should disregard all of those references to the view most favourable to the accused. I did not put correctly what I was trying to get at with you with regard to those comments, and you should disregard them I told you in particular that on the view most favourable to the accused, that the act of suffocation was pulling the bag over the head of a man as he lay in that condition on the ground. It is open to you to find that the Crown has proved beyond reasonable doubt that the act was the act of the accused. I think that what I'm about to say was sufficiently covered yesterday, but, lest there be any doubt about it, let me say it again. The clear evidence of Dr Duflou is that the primary cause of death was suffocation. It is a question for you in connection with the question numbered 3 on the document how the act which brought about the suffocation is properly to be defined ; and that involves, as I told you yesterday, a decision, a finding of fact by you. It is open to you find, if you are persuaded to do beyond reasonable doubt, persuaded by the Crown to do it beyond reasonable doubt, that the act that caused the suffocation was the act of putting the bag over the head of the deceased, without more. It is possible for you to take the view on the evidence that the act of suffocation was the combined effect of the placing of the bag on the head and its securing in place by the green tape, that you will see in the relevant photograph forming part of exhibit M. Once you have decided how, as you find the facts, the act causing suffocation is correctly to be defined, it then becomes necessary for you, in the way I tried to describe to you yesterday, to decide whether the Crown has proved beyond reasonable doubt that that act, as you have defined it, is properly to be regarded as the act of the accused, and an act of the accused for which he is criminally responsible in accordance with the directions in that behalf that I gave you over the past couple of days. The accused's case, as I reminded you yesterday, but it will bear repeating, is that he saw Peter Kane put the bag in position over the head of the accused; that he saw him drawing the bag over the accused's head. It is, however, his case that he did not himself, place the tape in position, that he did not see Peter Kane place the tape in position; that he did not see anybody else place the tape in position; and, that he was not aware at anytime while he was inside the unit that the tape had been placed in position. If you are satisfied by the Crown and - I will put that another way. If the Crown has proved to your satisfaction beyond reasonable doubt that the act which brought about the suffocation was, in truth, the placing of the bag over the head of the man as he lay on the floor, and without more, then you would be entitled to find that that act was the act of the accused; and you would be entitled to find that upon the basis of the directions I gave you as to the position of a person who does not himself do the act, but is present while it is done, and whether expressly or by implication assents to what is being done. If you were to come to the view that the act that caused the suffocation was the combined effect of the placing of the bag over the dead man's head and its taping in position; in other words, if you were to come to the view that the taping of the bag into place was an essential part of the act which caused the suffocation, then it would be a question for you whether that might fairly be sheeted home to this accused. The answer to that question would depend upon your finding of fact as to the accused's knowledge that the tape had been placed in position. If, having considered all the relevant facts and circumstances carefully in the way that I tried to explain to you yesterday, you were to come to the conclusion that it was not a reasonable possibility that the accused had seen the tape in position before he left the flat, then you would not be entitled to hold him liable for the fact that the tape had been placed there. If, on the other hand, you have been satisfied by the Crown beyond reasonable doubt that the accused, although he did not himself put the tape in place and although he did not see it being put in place, did see, before he left the unit, that it was, in fact, in place, and by his then conduct, expressly or by reasonable implication, assented to its being left in place, then you would be entitled, in accordance with the directions of law that I previously have given you, to hold him responsible for that act." (Emphasis added.) 51 In this passage, the previous directions concerning the way causation was to be dealt with were not withdrawn. They were affirmed. The jury was to find the cause of death. 52 The following further observations are to be made about this passage. First, two possible causes of death were mentioned, putting the bag over the deceased's head and the combination of putting the bag over the head and taping it. This was not, however, an explicit or implicit withdrawal of the direction that the options included the blow to the head and the trussing up of the deceased. Indeed, there was a statement at the commencement of the passage, which we have emphasised, expressly preserving what had been said on the previous day. That included, as we have pointed out, the availability of the appellant's own act or acts for selection as the cause of the death. 53 Secondly, there was no direction in this passage - as there was none before - concerning any legal principle which the jury was to apply in making the selection other than that they were to find which of the acts available for consideration was the case of death. Discussion 54 The crown prosecutor had addressed the jury on the basis that the only live issues were self defence and provocation. In contrast, counsel for the appellant, in his address, disputed that the appellant had done any act causing death or was legally responsible for any act causing death. The crown prosecutor had not anticipated this approach. Accordingly, he had not, in his address, specified the way the crown put its case, absent self defence or provocation. 55 This put the trial judge in a very difficult position. With the benefit of hindsight, it would have been helpful for the trial judge to have ascertained from the crown prosecutor how the crown's case should now be put to the jury, absent self defence or provocation. The crown prosecutor would then have specified the act or acts relied upon as causing death and the legal framework within which this was asserted to be a case of murder or manslaughter. There might have been dispute as to whether it was open to the jury to find that some act or acts sought to be relied upon caused death, or as to whether some legal framework sought to be relied upon was available as a matter of law. Any such dispute would have been resolved by the trial judge. In that way, the crown case to go to the jury, in fact and law, absent self defence and provocation, would have been settled before the summing up began. 56 A judge, confronted with a radical change in the way a defence case is being conducted, does not have the luxury of hindsight in setting a course for the balance of the trial. What seems now to have been the preferable course was not the course his Honour took. The crown prosecutor had not identified the act or acts relied on as an act or acts of the appellant or for which the appellant was legally responsible, and as being an act or acts causing the death. The crown prosecutor had not done so because he had been led to believe there was no need to do so. It was in these circumstances and, it would seem, largely as a result of these unfortunate developments, that the trial judge instructed the jury to decide what act or combination of acts constituted the cause of death. 57 Four such acts were proposed by the trial judge for their consideration, namely, the blow to the head, the trussing up, putting the bag over the head, and the taping of the bag. Of these, the first and second were the appellant's acts. The third and fourth were Kane's acts. If any act or acts by Kane constituted the cause of death, the jury was to decide if that act or acts should be attributed to the appellant by applying legal principles relating to principal in the second degree, as specified by the trial judge. If the cause of death was an act or acts of the appellant himself or an act or acts of Kane for which the appellant was legally responsible, the case was one of murder or manslaughter (apart from any question of self defence or provocation) depending upon whether there was the requisite specific intent for murder or, failing that, whether the act or acts causing death were unlawful and dangerous. 58 The legal test for causation in a criminal trial (both necessary and sufficient) was reviewed by the High Court in Royall v R . [1991] 172 CLR 378. Deane and Dawson JJ (at 411) said "a substantial or significant cause". Toohey and Gaudron JJ (at 423) said "substantial", and McHugh J (at 441) said "sufficiently significant". There would be no material difference in the way a jury would understand the words "substantial" and "significant" in this context. The formula proposed by Deane and Dawson JJ, a "substantial or significant cause", would reflect the view of the court as a whole. 59 There were, it seems to us, three errors in the way the case was left to the jury. First, the legal test for causation was not conveyed to the jury. 60 Secondly, it was an error to instruct the jury to determine the cause of death by making a selection from various acts left to them by the trial judge for this purpose. "[I]t is a misapplication of principle to attempt to search for a principal cause of death": R v Mofatt . [2000] NSWCCA 174, per Wood CJ at CL at [66]. A fortiori, the cause of death. 61 Thirdly, it was not, in our view, reasonably open to the jury to find that the blow to the head or the trussing up of the deceased, alone or in combination, caused the deceased's death on the correct legal test. Neither of these acts should have been left to the jury as having been a cause of death, whether alone or in combination, let alone as the cause of death.b 62 It was submitted by the crown in the appeal that the approach directed by the trial judge was more favourable to the appellant than the legal test would have been. We disagree, particularly with the added complication that the blow to the head and the trussing up were incorrectly left to the jury. A jury, instructed according to Royall and with only the placing of the bag over the head and the taping of the bag available as a substantial or significant cause of death, might not have been satisfied that the placing of the bag over the head was both an act for which the appellant was legally responsible and a substantial or significant cause of death. There could not have been much doubt that the taping of the bag was a substantial or significant cause of death, but the jury might have found that this was not an act for which the appellant was legally responsible. The jury would then have been obliged to acquit the appellant of both murder and manslaughter. 63 By contrast, being instructed, as they were, to find the cause of death without further guidance as to the criteria, and being told that any of the four causes mentioned was available for selection, the jury might have found that putting the bag over the deceased's head was the cause of death, not because it was a substantial and significant cause of death but because, without that, there would not have been a bag on the head to tape. Or, they might have found that the blow to the head and the trussing up by the appellant was the cause of death because those acts initiated the attack which resulted in the deceased's death and made it possible to get the bag over the deceased's head, from which he suffocated. In other words, being instructed to find the cause of death and being uninstructed as to the test to be applied, the jury might - in this case - have selected the earliest offensive act or acts without which, in their view, the deceased would not have died. Or the jury might have approached the task of finding the cause in some other undisclosed way that was less favourable to the appellant than the correct approach. One cannot know what criteria the jury applied in making the selection they were directed to make without being given criteria to apply. 64 The appellant was convicted of manslaughter. Whether the basis of that verdict was provocation or manslaughter by an unlawful and dangerous act, the same point in relation to causation of death applies. There is a serious possibility that the appellant was convicted on an incorrect test of causation and that he would not have been convicted on the correct test. 65 It was submitted by the crown on appeal that the asserted error in the summing up in relation to causation was not subject to objection at the trial. On our reading of the record, that is so. However, the errors were fundamental, in the sense which makes it appropriate to grant leave under Rule 4 to argue grounds 1 and 2. 66 The appeal should be allowed under grounds 1 and 2. It is unnecessary to decide the other grounds of appeal. A new trial should be ordered. Orders 67 The orders of the court are: (1) Appeal allowed. (2) Order a new trial. 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