R v Graham[2011] QCA 187

SUPREME COURT OF QUEENSLAND

[1] FRASER JA: Mr Graham and Ms Alliston were tried in the District Court at Townsville on an indictment which charged each of them with one count of unlawful wounding and one count of armed robbery with the circumstances of aggravation that they were armed with knives, were in company with each other, and immediately before the time of the robbery used other personal violence to the complainant, Mr Plozza. 

[2] On the fourth day of the trial the jury returned a directed verdict that Ms Alliston was not guilty of the unlawful wounding count.  When the trial concluded on the sixth day, the jury found Mr Graham guilty of both counts, including all of the charged circumstances of aggravation.  The jury found Ms Alliston guilty of the count of robbery with the circumstance of aggravation that she was in company with Mr Graham, but not guilty of the circumstances of aggravation that she was armed with an offensive instrument and used other personal violence. 

[3] On 1 June 2011 the Court made orders allowing Mr Graham’s and Ms Alliston’s appeals against those convictions, setting aside the convictions, and ordering a new trial in each case.  The Court indicated that the reasons for those orders would be published in due course. 

Outline of the case

[4] Mr Plozza gave evidence in the Crown case that at about 1.30 am on a day in January 2009 he was at a service station in Townsville when he saw Ms Alliston trying to pay for petrol at the counter.  Ms Alliston walked outside, got into the passenger side of a car, and apparently spoke to someone on a telephone.  When she approached him, Mr Plozza asked her if she could not pay for her fuel.  Ms Alliston confirmed that to be the case and asked him if he could help.  Mr Plozza believed that she was acting in a suggestive manner and replied that they could “come to some sort of agreement”.  He gave her $60 to assist her in paying for the fuel, and she did so.  Mr Plozza gave evidence that Ms Alliston then drove him to a park, “rejecting” telephone calls that she was receiving whilst driving.  When they arrived at the park Ms Alliston offered to give Mr Plozza oral sex in exchange for the fuel money.  A short time later she offered sexual intercourse for another $100.  Mr Plozza did not respond to that offer and Ms Alliston drove away.  She returned a few minutes later and Mr Plozza saw her answer a telephone call when she was some distance away from him.  Ultimately Mr Plozza asked for his money back.  Ms Alliston told him that she could borrow it from her housemate. 

[5] Ms Alliston then drove Mr Plozza to a house, having two more telephone conversations on the way.  Mr Plozza gave the following evidence about what happened when the car stopped at what Ms Alliston said was her house:

“I saw a person running towards the car out of my peripheral.  Person opened the door and I turned toward the door and ended up leaning back as the person who was opening the door leaned into the car.

…

He said, ‘I’ll teach you for touching my girlfriend.’

…

He had two knives and he was swiping at me with them.

…

I explained that I’d loaned her money at the petrol station and that I wanted my money back.

Did he say anything back to you?-- Not that I recall.

…

He had two knives.  From memory, one was like a chopping knife.  I’d say 15 to 20 centimetres long, stainless steel in colour.  The other knife I don’t remember much about.

All right.  Now, did – what – what was he doing with the knives?-- Swiping at me.  I managed to grab a hold of both his wrists and was forcing them towards the ceiling of the car.

Okay. Did-----?-- In order not to get stabbed.

Did either of those knives strike you?-- Yes.

Whereabouts?-- One across the face and one stabbed through my shin.

All right.  And did you receive any other injuries?-- I was bitten.

Where were you bitten?--  On the hand.

And who was that by?-- The male.

So to the best of your recollection are you able to say the sequence of which occurred first?-- Swipe across the face, I think stab in the shin and then biting of my hand.

Where was the women when this occurred?-- She’d gotten out of the driver’s seat of the car and was standing looking in on what was happening inside the car.

And did she say anything?-- Can’t – can’t recall exactly.

…

The – the woman said to get my wallet out of my bag … and he asked for my wallet.  My bag was on my chest, with straps over my shoulders.  I said that I didn’t want to hand over my wallet and that the money wasn’t in my wallet.

Now, who was the woman saying that to?-- The male person.

And did he say anything back?-- Not that I recall.

Okay.  So where was your wallet?-- My wallet was in my bag and----

Okay.  Did you – did you take any money out of it?-- There was no money in my wallet.

Okay?--  The money was in the zip separate to my wallet.

Did you remove that?-- I took the money out and held it above my head.

Now, what happened to the money?-- It was taken from me.

Did you see-----?-- I don’t know who took it.

And did you say anything at that point?-- No.  Once the money was taken I showed that there was no money in my wallet and kicked the male off me.  He stepped out of the car and I stepped out and ran across the street.”

[6] Mr Plozza gave evidence that he was not sure how much money was taken out of his bag but he had withdrawn several hundred dollars that day.  He arrived at an ambulance station where he told the ambulance officers that he had been stabbed, but he was more concerned about the bite to his hand.  He was taken to a hospital and given stitches for the wound to his shin. 

[7] In cross-examination by counsel for Ms Alliston, Mr Plozza agreed that Ms Alliston had not touched him at any stage, she had not wielded a knife, and during his struggle with Mr Graham, Ms Alliston said, “[d]on’t stab him” and “[w]e don’t need the trouble.”  Mr Plozza agreed that he had given a statement to the police in which he said that Ms Alliston tried to get the knife out of Mr Graham’s hand and succeeded in getting one of the knives.  He also agreed that he could have called police for assistance but did not do so.  The ambulance officers called the police after they explained to Mr Plozza that they were obliged to do so.  Mr Plozza agreed that he had not wanted to make a complaint, and that when police spoke to him on the following day he had not wanted to give a statement and did so only after police told him that he could make a statement and did not have to pursue it any further.  He agreed that he had offered the money for the fuel because he was hoping to get either cash, drugs or sexual favours in return. 

[8] At the close of the Crown case Ms Alliston’s counsel submitted that she had no case to answer in relation to either of the counts in the indictment and Mr Graham’s counsel submitted that he had no case to answer in relation to the count of robbery.  The trial judge accepted the submission from Ms Alliston in relation to the count of wounding, concluded that Ms Alliston did have a case to answer on the count of robbery, and concluded that Mr Graham had a case to answer on both counts.

[9] Ms Alliston did not give or call evidence.  Mr Graham gave evidence in his defence.  He gave evidence that Ms Alliston rang him and said that there was “a bloke grabbing her and would not get out of her car”, and she broke a strap on her dress.  Mr Graham told Ms Alliston to come home.  He was “pretty stressed out” and “really worried about her.”  During a second telephone call she said that she was on her way.  When Mr Graham asked if the man was still in her car she hung up.  Mr Graham said that he tried to call Ms Alliston numerous times and the phone was not answered.  When he heard the car coming he ran down to the end of the street and swung the door open.  He said to the man sitting in the passenger seat (Mr Plozza) “[w]hat the fuck are you doing to my missus?”  Mr Graham reached in and tried to get Mr Plozza out of the car.  Punches were thrown by each of them and Mr Graham was hit a couple of times in the face and had his shirt pulled over his head.  Mr Plozza produced a knife, which Mr Graham grabbed with his hand.  Mr Graham said that he lent his body weight on Mr Plozza so that Mr Plozza could not get him with the knife.  Mr Graham tried to grab the knife with his other hand.  He bit Mr Plozza on the palm so that he would let go of the knife.  Mr Plozza did let go of the knife and Mr Graham grabbed it with his left hand. 

[10] Mr Graham gave the following evidence about what happened next:

“Um, as soon as I took the knife out of his hand we were having a struggle, he tried to kick me.

…

Um, I felt the knife cut him in the leg.

…

Um, I was right – I was very worried that I cut him on the leg … and, um, he was saying – I can’t remember what he was yelling, but after that he got out of the car and ran down the street.

…

So can you show – where was your hand at the time that occurred?-- After I’d taken the knife out of his hand-----

Yes?-- -----I had it out like that … and he was kicking at me to try and get me away.

…

I guess my natural reaction when someone kicks you, is you put your hands like that.  I can’t recall what I did but I did feel that knife cut him on the leg.

…

… as far as I was concerned, I didn’t do anything wrong.  My girlfriend rang me up and told me there’s a bloke grabbing her … I got him out of the car and he pulled a knife on me and I protected myself.”

[11] Mr Graham maintained those aspects of his account in cross-examination.  He said that:

“When I got the knife out of his hand and he went to kick me, the only thing that I can think of is I put – when someone kicks you, you react and put your hands in front.  Could have happened like that.

…

After getting the knife off him – I was just protecting myself after that.  As soon as I felt it cut him on the leg I panicked.  I didn’t want to stab him.”

[12] Mr Graham said that after the second telephone call from Ms Alliston he thought that she was going to bring home the man that had tried to touch her, that she was scared, and that when the car pulled up the first thing that Mr Graham did was to ask Mr Plozza, “[w]hat the fuck have you done to my missus?”  He then grabbed Mr Plozza to try and get him out of the car.  Mr Graham denied that he said “I’ll teach you for touching my girlfriend.”  He denied that he had the better of the struggle.  He said that when he saw Mr Plozza produce the knife he grabbed it and that, “[w]ell if someone has got a knife against you, you’re going to defend yourself.”  When the prosecutor suggested that, in the course of being angry, Mr Graham accidentally stabbed someone, he responded, “[a]fter getting the knife off him – I was just protecting myself after that.”  He denied hearing Ms Alliston say anything about getting Mr Plozza’s backpack.  He heard nothing about a wallet.  He said that there was no mention of money and he saw no money. 

[13] The prosecution adduced evidence that Mr Graham’s mobile telephone contained the following text message sent from that telephone to another person on the morning following the alleged offence:  “Just stabed a bloke. Don’t come anywhere near my house. Just robed a bloke and got a bit excited. Don’t bother about picking me up, I’m on the run. Get rid of this SMS.”  Mr Graham denied that he had sent such a text message but admitted that he had sent a message which included the words “[d]on’t bother picking me up.”  Mr Graham gave evidence that it was possible to alter a sent text message stored on his telephone by the addition of further text and that the police had an opportunity to do that.

Mr Graham’s appeal

[14] Mr Graham appealed against his convictions on six grounds.  Grounds 3, 5 and 6 were as follows:

“3.The learned Trial Judge erred in law in not upholding the no case submission in respect of count 2, in circumstances where the Crown had particularised that the demand was a demand for money by the appellant directed to the complainant and the complainant stated in evidence that the appellant made no demand for money and further he did not see the appellant take any money.

…

5.The learned Trial Judge erred in law by failing to adequately direct the jury about the separate cases and evidence admissible only against the appellant in a joint trial.

6.On 10 December, 2010 on the evening after the verdict, the speaker of the jury was observed in attendance at the Christmas party of the Director of Public Prosecutions Office (Townsville) and he was in conversation with, and at times alone in conversation with, the judge’s female associate. This incident would give rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the jury did not discharge its task impartially.”

[15] None of those grounds were formally abandoned, however Mr Graham’s counsel did not make any submissions in support of those grounds.  Ground 3 was not maintainable because Mr Plozza gave evidence that Mr Graham “asked for my wallet”, which might reasonably have been understood as comprehending a demand for money.  That evidence was not necessarily inconsistent with Mr Plozza’s apparent agreement with defence counsel’s suggestion in cross examination that Mr Graham “never said anything to you about money.”  As to ground 5, there was no apparent inadequacy in the directions described in that ground and none was brought to the Court’s attention.  No evidence was adduced that the incident described in ground 6 occurred.  None of those grounds of appeal had merit.

[16] More substantially, Mr Graham’s counsel submitted that the trial judge erred by failing to leave self-defence for the jury’s consideration in relation to the wounding charge.  That error was submitted to be compounded by the fact that the trial judge had permitted defence counsel to address on self-defence before ruling that it was not raised by the evidence.  Mr Graham’s counsel argued that the trial judge should have discharged the jury to avoid a miscarriage of justice.

[17]  It was s 272(1) of the Criminal Code 1899 (Qld) (“Criminal Code”) which most obviously had potential application on Mr Graham’s evidence.  It provides:

“When a person has unlawfully assaulted another or has provoked an assault from another, and that other assaults the person with such violence as to cause reasonable apprehension of death or grievous bodily harm, and to induce the person to believe, on reasonable grounds, that it is necessary for the person’s preservation from death or grievous bodily harm to use force in self-defence, the person is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous bodily harm.”

(The qualifications upon the application of that provision in s 272(2) need not be considered for present purposes.)

[18] The relevant grounds of appeal were as follows:

“1.The learned trial judge erred in law by failing to discharge the jury at the request of defence counsel after the occurrence of the following events:

Particulars

a)The learned Trial Judge informed counsel for the appellant the following morning after the appellants counsel had completed his address to the jury that counsel had been wrong in addressing the jury about the defence of self defence.

b)The issue of self defence had been raised by the appellants counsel at the close of evidence and prior to addresses and the learned Trial Judge had not ruled that self defence could not be considered by the jury.

c)The learned Trial Judge erred in failing to correct counsel during the appellant counsels address about the issue, thus allowing the defence to be addressed upon at length by counsel and thus the error was compounded.

d)Counsel told the court that counsel was of the belief that the defence of self defence had been left for consideration by the jury.

e)Both the Crown Prosecutor and counsel for the co-accused stated in court that they were of the understanding that the defence of self defence had been allowed to be considered by the jury, prior to the commencement of the appellant counsels address.

f)The learned trial judge told counsel he intended to tell the jury that self defence had no application to the case.

g)The learned Trial Judge advised the appellants counsel that he would give him an opportunity to further address the jury on the topic.

h)The defence affected both count 1 and count 2 on the indictment because the Crown relied upon the act of unlawful wounding as an essential part of the circumstance of actual violence in the offence of robbery, and the use of a knife by the appellant was the circumstance of being armed with an offensive weapon in relation to the robbery.

i)The course adopted by the Trial Judge undermined the whole of the appellants defence case.

j)Counsel asked for the discharge of the jury which was declined by the learned Trial Judge.

k)The appellant was deprived of the right of a fair trial for the above reasons.

2.The learned trial judge erred in law by declining to allow the jury to consider the defence of self defence in respect of the appellants case.”

[19] The respondent did not contend that the chronology set out in ground 1 was materially inaccurate.  Nevertheless it is necessary to spell out the events in some more detail.

[20] After the close of evidence there was a lengthy discussion between the trial judge and both defence counsel about the matters which should be put to the jury.  The trial judge observed that the difficulty about self-defence was that by the time Mr Graham got the knife he did not need to defend himself.  Mr Graham’s counsel argued that it would be artificial to conclude that when, in response to Mr Graham’s assault, Mr Plozza created a reasonable apprehension of death or grievous bodily harm by producing the knife, Mr Graham had ceased to be defending himself in the split second after he had grabbed the knife from Mr Plozza.  Mr Graham’s counsel submitted that potentially s 271 (concerning self-defence to an unprovoked assault) and s 272 of the Criminal Code were available, but acknowledged that he was not on particularly strong ground in relation to s 271. 

[21] In the course of argument the trial judge expressed views which were inimical to the application of either section, after which Mr Graham’s counsel addressed the trial judge at length.  Mr Graham’s counsel concluded with the proposition that the production of the knife during the course of the fight, whether the fight had been caused by Mr Graham or not, brought the case within s 272 and entitled Mr Graham to have that provision considered by the jury.  The prosecutor submitted that there was not sufficient evidence for Mr Graham to have held the view that he was faced with a possible threat of grievous bodily harm or death, but did not object to s 272 being left to the jury.  The trial judge remarked that there was an inconsistency with self-defence and the defence of accident under s 23, and that if s 23 was rejected, self-defence seemed to be “pure speculation”.  The prosecutor responded that this was a matter for defence counsel.  The trial judge did not make any ruling. 

[22] In Mr Graham’s counsel’s address to the jury he primarily relied upon self-defence, submitting to the jury that it would not be satisfied that what occurred was anything else but lawful:  “My client was entitled to do what he did to defend himself.”  Mr Graham’s counsel quoted from s 272(1) of the Criminal Code and developed an argument that, once Mr Plozza produced the knife, Mr Graham was entitled to defend himself and that if, in the course of disarming Mr Plozza, Mr Plozza was wounded, that was not unlawful.  In a brief passage of the address Mr Graham’s counsel also referred to the Crown’s obligation to exclude accident, submitting that if the jury felt that “it’s not self defence … the Crown must … prove that this was not self defence nor was it an accident.” 

[23] At the conclusion of Mr Graham’s counsel’s address the court adjourned until the following morning.  In the absence of the jury, the trial judge observed that he thought it had been clear that he was not going to allow the defence of self-defence to go to the jury.  After some debate and a brief adjournment, Mr Graham’s counsel told the trial judge that he, counsel for Ms Alliston, and the prosecutor, had all understood that self-defence was to be allowed to go to the jury.  The trial judge accepted that there might have been a misunderstanding, but declined to leave the defence to the jury.  Mr Graham’s counsel informed the trial judge that he had framed his address on the footing that self-defence would be put to the jury.  He argued that his submissions could not have proper effect in circumstances where the trial judge would tell the jury to disregard self-defence, and submitted that the trial should not continue.  Counsel for Ms Alliston made a similar submission.  The prosecutor confirmed that she had also thought that self-defence was to be left to the jury, notwithstanding her submission that it was not open on the evidence.  The trial judge declined to discharge the jury.  Mr Graham’s counsel then sought an opportunity to address the jury further. 

[24] The jury was then brought back.  The trial judge told the jury that in their absence on the day before there had been discussions with counsel at the end of which, “I thought it was clear to everybody that it was my view that there was no factual basis on which you could consider the defence of self defence”.  The trial judge referred to the fact that Mr Graham’s counsel had spent “some time talking about self defence yesterday” and observed that he had raised the matter with counsel that morning “because I proposed to direct you that self defence is not a relevant matter.”  His Honour said, “it is apparent that we were at cross purposes about this matter”, and indicated that Mr Graham’s counsel would have the opportunity to say something further.  Mr Graham’s counsel then addressed the jury about accident, submitting that Mr Graham did not intend to wound Mr Plozza and did not foresee it happening.  He submitted that what had happened was that Mr Graham had disarmed Mr Plozza, Mr Graham was holding the knife, he was not trying to attack Mr Plozza with it, and whilst they were still struggling the wound had occurred.  The prosecutor submitted to the jury that it was not open to find that the injury occurred by accident and that Mr Graham deliberately and intentionally stabbed Mr Plozza, having run towards the car armed with two knives and, on Mr Plozza’s evidence, swiping those knives around.

[25] At the hearing of the appeal the respondent acknowledged that self-defence should have been left to the jury.  That was an appropriate concession.  Mr Graham did not give direct evidence of the apprehension and belief specified in s 272(1) but it is sufficient to raise self-defence for the jury’s consideration if those matters are capable of arising by inference.[1]  On Mr Graham’s evidence the inference was available that Mr Plozza’s production of the knife created in Mr Graham’s mind a reasonable apprehension of grievous bodily harm and a belief on reasonable grounds that it was necessary for him to use force to preserve himself from that fate.  The situation in the car was apparently so turbulent and volatile that the jury was not bound to conclude that any such apprehension or belief ceased to be reasonable or ceased to be held on reasonable grounds at the very instant when Mr Graham secured the knife and before Mr Plozza lashed out with his leg.  On one available interpretation of Mr Graham’s evidence, he used the knife only to protect himself and in circumstances in which there was no time for him to drop the knife or withdraw from the struggle altogether.  The evidence which suggested that Mr Graham bit Mr Plozza’s hand was also capable of being treated by the jury as supporting a conclusion that Mr Graham acted in self-defence. The jury might have thought it rather more likely that Mr Graham would have bitten Mr Plozza on his hand if he wielded a knife than if Mr Graham attacked Mr Plozza with two knives.

[26] Another interpretation of Mr Graham’s evidence raised the question whether the wounding occurred by accident in terms of s 23 of the Criminal Code, but that did not relieve the prosecution of the obligation of negativing self-defence where it was also available on the evidence.[2]  Regardless of the fact that the trial judge considered that accident was more clearly raised and that self-defence was a weak and tenuous plea, it was for the jury, not the judge, to decide whether the prosecution had excluded self-defence.[3]

[27] The respondent acknowledged that it was difficult to contend that there had not been a miscarriage of justice upon the wounding count simply because the jury concluded that Mr Graham was guilty of the robbery count with the circumstance of aggravation that he was armed with an offensive instrument.  The respondent argued, however, that the jury’s conclusion did support the respondent’s contention that Mr Graham’s conviction of robbery did not involve any miscarriage of justice.  The respondent emphasised that self-defence was of no relevance to proof of the charge of robbery. 

[28] A difficulty with that argument was that the defence case in relation to self-defence emphasised what was submitted to be Mr Graham’s state of mind when he wounded Mr Plozza, which was also an important consideration for the jury in relation to the robbery charge.  In that respect the trial judge directed the jury that what must be proved was that: “there was … a stealing of money”; “that at the time of or immediately before the stealing, the accused used or threatened actual violence”; and that “the threat or violence must be done in order to obtain the thing stolen” (emphasis added).  Mr Graham’s defence was to a significant extent built upon the proposition that such violence as Mr Graham used against Mr Plozza was directed to the protection of Ms Alliston and, after Mr Plozza produced the knife, Mr Graham’s own self-defence, or at least that the prosecution had failed to exclude that scenario.  That formed a focus of Mr Graham’s counsel’s whole address to the jury, there being little more than a passing reference to accident.  Furthermore, by giving evidence that “I got him out of the car and he pulled a knife on me and I protected myself” and that “[a]fter getting the knife off him – I was just protecting myself”, Mr Graham virtually asserted that he acted in self-defence when he wounded Mr Plozza, yet the trial judge directed the jury to disregard self-defence.  That direction therefore might have undermined both Mr Graham’s evidence and his counsel’s address based upon that evidence.

[29] The opportunity subsequently given to Mr Graham’s counsel to address the jury on accident was not a sufficient remedy.  In the second address Mr Graham’s counsel was obliged to concentrate instead on the proposition that the Crown had not proved that Mr Graham’s use of the knife was not accidental.  The jury rejected that proposition.  The jury might also have thought that it was inconsistent both with the focus on self-defence in counsel’s first address and with Mr Graham’s assertions in evidence to the effect that he had acted in self-defence. 

[30] Nor was the potential damage to Mr Graham’s case averted by the trial judge’s directions about the state of mind the prosecution was required to prove before the jury could find Mr Graham guilty as a party to the robbery offence.  That topic was the subject of Mr Graham’s remaining ground of appeal:

“4. The learned Trial Judge erred in law when he failed to properly direct the jury as to the requisite state of knowledge required to make the appellant a party to the offence of robbery in a section 7 case.”

[31] The respondent conceded that the trial judge’s directions were inadequate with respect to the knowledge which was required by a person who aided, abetted or counselled an offence, but argued that the directions were adequate for the real case advanced by the prosecutor.  In order to explain why that argument could not be accepted it is necessary to refer in some detail to the prosecution case against Mr Graham pursuant to s 7 of the Criminal Code and the relevant directions given by the trial judge.

[32] Section 7(1) of the Criminal Code provides:

“7Principal offenders

(1)When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say—

(a)every person who actually does the act or makes the omission which constitutes the offence;

(b)every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c)every person who aids another person in committing the offence;

(d)any person who counsels or procures any other person to commit the offence.”

[33] In opening the case to the jury, the prosecutor quoted from s 7(1)(b) of the Criminal Code and told the jury that the Crown case was that Ms Alliston took Mr Plozza to the house with the intention to rob him, Mr Graham demanded the money, that either Ms Alliston or Mr Graham took the money from Mr Plozza, and that they were acting together in the commission of that robbery. It is apparent that the prosecutor put the case upon s 7(1)(b) on the basis that Mr Graham and Ms Alliston aided each other in the commission of the armed robbery. That provision, like s 7(1)(c), applies only when the aider either has the necessary intention to commit the offence or at least knows that the principal offender has that intention.[4]

[34] The trial judge directed the jury as follows:

“Our law provides that when an offence is committed the persons who are responsible for its commission include the person who actually commits the offence, any person who urges the commission of the offence, and any person who aids or assists in the commission of the offence.

The Crown case is, of course, that the two accused acted together; that the accused Alliston urged the accused Graham to take the wallet; that Graham demanded the wallet; that Graham applied force to Plozza to produce the money and that when he did produce the money, one or other of them took it.

It’s only if you were satisfied of all of those things and satisfied beyond reasonable doubt that you would convict.  It’s important to remember that you must be satisfied that the force was used to obtain the money, it wasn’t just an unanticipated consequence of the application of the force, that the money was produced and stolen.  If left in doubt, you should acquit.”

[35] The respondent did not submit that those directions adequately explained what the prosecution undertook to prove to render either of the accused liable under s 7(1)(b) or under any other paragraph of s 7(1).  The directions did not identify what state of mind Mr Graham was required to have to make him liable as a party to an offence committed by Ms Alliston or what state of mind Ms Alliston was required to have to make her liable as a party to an offence committed by Mr Graham.  The last paragraph appropriately reinforced an earlier direction given about the elements of robbery, but it conveyed nothing about the state of mind of Mr Graham or Ms Alliston which the prosecution was required to prove to make him or her liable.  The jury might have implied something about the necessary states of mind from the reference to the two accused having “acted together”, but exactly what that expression conveyed in this context was unclear.  The jury might have understood it to mean little more than that Mr Graham and Ms Alliston acted and spoke at about the same time.

[36] After referring to submissions by the prosecutor and giving directions on other topics, the trial judge gave the following further directions:

“Was there a robbery?  Plozza says there was.  The accused, Alliston, in her interview says that money was produced during a violent exchange.  And you’ll be able to listen to exactly what she said about that.  She says that her view of things was that Plozza might have thought that he was being robbed but that wasn’t the fact.  Well, that’s a matter for you to consider when you consider the case against her.  I remind you that the accused man, Graham, says he was not aware of any taking of money at all.  And so that’s evidence that you consider when you consider the case against him.  You must consider whether you are satisfied beyond reasonable doubt that violence was offered to Plozza, that it was offered to assist in the taking and that there was a taking.  It is only if you’re satisfied of those things, that Graham could be convicted.  And it was only if you are satisfied that the accused, Alliston, was there either urging Graham on in this endeavour or standing by ready to assist that she could be convicted.”

[37] Again, this direction did not clearly explain what was the necessary state of mind of either of the accused for the purposes of s 7(1).  Although the trial judge referred to Mr Graham’s evidence that he was unaware of the taking of any money, his Honour did not direct the jury that if it accepted that evidence it should acquit him of robbery.  The direction that the jury should “consider” that evidence might have conveyed a contrary impression.  That tended to weaken the subsequent direction, which in any event did not expressly refer to Mr Graham’s state of mind, that the jury must be satisfied that violence “was offered to Plozza … to assist in the taking”.  The last sentence of the direction was the high point for the respondent’s argument so far as Ms Alliston’s liability was concerned, but it did not define the “endeavour” or otherwise identify with any clarity what state of mind Ms Alliston or Mr Graham was required to have if Ms Alliston was to be found responsible as a party.

[38] The respondent argued that this direction was nevertheless sufficient because the prosecution case was really one in which the alleged robbery was by both appellants in the company of each other and as principal actors, each appellant having the intent to rob at least by the time Mr Graham set upon Mr Plozza and when Ms Alliston or Mr Graham took Mr Plozza’s money.  The respondent contended that the particulars given by the prosecutor comprehended a case against Mr Graham and Ms Alliston under s 7(1)(a) and that each of them might be found liable under that provision as participants in a joint enterprise. 

[39] In R v Wyles; ex parte Attorney-General,[5] the Court of Criminal Appeal held that s 7(a) (the predecessor of the present s 7(1)(a)) applied where several persons acting pursuant to a “common unlawful purpose” or “common unlawful intention”,[6] or “in concert”,[7] undertook separate acts which, taken together, constituted all of the  elements of the offence.  In R v Sherrington & Kuchler,[8] McPherson JA described the reference to “in concert” in the context of s 7 as a “form of heresy”, but this is not the occasion to pursue any such conceptual difficulty or to discuss the possibility that such a case is instead comprehended within s 8,[9] which the prosecutor did not invoke.  It is sufficient to note here that the respondent’s contention on appeal required proof that Mr Graham participated in a joint criminal enterprise with Ms Alliston, either by committing an agreed robbery, or, with knowledge that the robbery was to be or was being committed, intentionally assisting or encouraging Ms Alliston to commit that offence.[10]  If that was the case intended to be made at trial, those requirements of knowledge and intention should have been reflected in directions to the jury.

[40] A case based on s 7(1) was clearly open on the evidence, in my opinion.  The evidence in the Crown case, if accepted by the jury, was capable of justifying the inference that Mr Graham intentionally did violence to Mr Plozza with the intention of enabling Mr Graham or Ms Alliston to steal Mr Plozza’s money.  Acceptance of the evidence was also capable of justifying the inference that, knowing that Mr Graham intentionally did violence to Mr Plozza to enable Mr Graham or Ms Alliston to steal Mr Plozza’s money, Ms Alliston demanded that Mr Plozza hand over his money, urged Mr Graham to demand the money, or herself stole the money.  So much was capable of being inferred from the evidence of what in fact happened when Mr Plozza arrived at the house.  The inference was more readily available if the jury accepted that Ms Alliston directed Mr Plozza to the house after first having had reasonable opportunities both to communicate with Mr Graham outside Mr Plozza’s hearing and to drive away from him.

[41] Other ways of putting the case about the necessary intention and knowledge were also available on the evidence, but the difficulty remains that the trial judge did not give directions to the jury which clearly explained what particular knowledge or intention the prosecution was obliged to prove in order to render Mr Graham or Ms Alliston guilty as a party under s 7 (or, for that matter, under s 8).

[42] Both defence counsel sought redirections.  Each contended that the directions did not adequately explain to the jury that an alleged offender was not guilty as a party unless what they did was done with knowledge that they were assisting in a robbery.  For the reasons I have given those contentions were correct.  The trial judge did not give any further directions on that topic. 

[43] In answer to a question from the jury, the trial judge again directed the jury that “[t]he use of the violence … must be done in order to obtain the thing stolen, to overcome or to prevent any resistance to the stealing”, and commented that counsel were correct in submitting that “if you weren’t satisfied that the violence was being done in order to facilitate the stealing but the stealing just occurred coincidentally as the violence was occurring, that wouldn’t be a robbery”.  Again, that direction reiterated the elements of a robbery but it did not identify which accused must have what state of mind.

[44] The necessity for clear directions about the requisite knowledge of each appellant was of particular importance in this case, because the evidence raised the prospect that there might be material differences between the relevant states of mind of each appellant.  There were conflicting versions in evidence and the jury might not accept the whole of any one version but form its own view of what had happened.  Further, Mr Plozza appeared to accept in cross-examination that Mr Graham was apparently concerned and spoke only about what Mr Plozza had done to Ms Alliston.  There was also the possibility that Mr Graham might not have heard what Ms Alliston said about the money whilst he was struggling with Mr Plozza, particularly if, as Mr Graham said in evidence, it was Mr Plozza who produced the knife.  Further, Mr Plozza accepted in cross-examination that during his struggle with Mr Graham, Ms Alliston was trying to get the men to stop and said “don’t stab him.”  Those matters did not require the jury to reject the Crown case that each accused was criminally responsible for the robbery, but they did require clear directions about the knowledge or intention which the prosecution was obliged to prove. 

[45] The respondent submitted that Mr Graham had the difficulty of overcoming the admission in the text message, which entitled the jury to convict him as a principal offender.  That was significant evidence, but the Court cannot be sure what the jury made of Mr Graham’s explanation about the text message.  It remained necessary for the trial judge to give clear directions about the knowledge and intention necessary to sustain convictions under s 7.

[46] The combination of the insufficient directions about s 7 and the misdirection that self-defence should be disregarded created a miscarriage of justice in Mr Graham’s conviction on both counts.  In those circumstances the convictions could not be sustained by the application of the proviso in s 668E(1A) of the Criminal Code. 

Ms Alliston’s appeal

[47] Ms Alliston relied upon six grounds of appeal in challenging her conviction of the robbery offence:

“1.That the conviction was unreasonable and against the weight of the evidence.

2.That the Primary Judge’s directions to the jury were flawed because they enabled the jury to return a verdict not based on the particularized prosecution case.

3.The primary Judge erred in law in failing to uphold a no case to answer submission relating to count 2 on the indictment.

4.The Primary Judge’s directions to the jury were flawed because he failed to properly direct the jury as to requisite state of knowledge required in a Section 7 case.

5.The trial was rendered unfair and unbalanced because of the Primary Judge’s directions to the jury concerning alleged lies told the appellant in terms of Edwards -v- The Queen (1993) 178 C.L.R. 193.

6.That there has been a miscarriage of justice because on the evening after the jury delivered its verdict a member of the jury attended the Christmas party of the Townsville branch of the Office of the Director of Public Prosecutions at ‘the Brewery’ on Flinders Street. That the juror was in the company of the Primary Judge’s Associate. That juror was the speaker of the jury. It is submitted that these facts would give rise to a reasonable apprehension or suspicion that the verdict was influenced by bias on the part of the speaker in favour of the prosecution.”

[48] No evidence was adduced in support of the allegation in ground 6.  That ground was properly not pressed in argument.

[49] For the reasons already given in relation to Mr Graham’s appeal I concluded that there was substance in ground 4.

[50] There was also substance in ground 5.  The direction challenged in that ground was in the following terms:

“The record of interview given by the accused, Alliston, is as I’ve reminded you only evidence in the case against her. You treat it in the same way as you treat other evidence. That is, you may accept parts of it and you may reject parts of it. It’s entirely a matter for you to consider. Now one of the things that the Crown says to you is that when she alleged in that record of interview that the bruises on her arms were the result of being attacked, as she was being untruthful. And if you accept the evidence of Dr Fisher, who is another witness who’s in that expert category that he has qualifications and was allowed to express opinions, you might think that she was untruthful when she spoke to the police about those bruises. But if you do think that she was untruthful, you must ask yourself where does that take the case? Because before you can use that evidence against her, you have to be satisfied of a number of things about it.

First, you need to be satisfied that she was telling a deliberate untruth. There’s a difference between a mere rejection of someone else’s account or a difference in detail and a finding that somebody deliberately told a lie. In many cases where there appears to be a departure from the truth, it may not be possible to say that a deliberate lie has been told. The accused might have been confused, there might be other reasons which would prevent you from finding that she deliberately told an untruth.

Second, you would have to be satisfied that the lies concerned with some circumstance or event connected with the offence charged. You can only use the lie against the accused if you were satisfied, having regard to all of the circumstances, that it reveals some knowledge in her of the offence in question.

Third, you need to be satisfied that the lie was told because the accused knew that the truth of the matter would implicate her in the commission of an offence. She must be lying because she’s conscious that the truth would convict her. And there may be reasons for telling a lie, quite apart from guilt. People sometimes have a quite innocent explanation for telling a lie. If you accept that there might be some sort of innocent explanation for what you find to be a lie, then you should not use it against the accused. You should only do it if you are satisfied that she lied out of a realisation that the truth would implicate her in the offence.”

[51] The evidence of Dr Fisher was that the bruising on Ms Alliston’s arms, which she had stated was sustained when Mr Plozza assaulted her, appeared instead to stem from intravenous injections.  Before the Crown case concluded Ms Alliston’s counsel expressed his understanding that the Crown intended to rely upon Dr Fisher’s evidence as evidence of lies told by Ms Alliston that went only to credit.  The trial judge indicated that the evidence might go further than that, that it might go “to the truth of what occurred” and “to the issue.”  Ms Alliston’s counsel argued that the evidence could not amount to an “Edwards lie” and noted that the prosecutor had indicated that she only intended to lead the evidence on the basis of lies going to credit, not to guilt.  The prosecutor subsequently confirmed that the doctor’s opinion was said to be admissible “as a credit lie on her part”.  In the prosecutor’s address she relied upon the evidence of Dr Fisher only as a reason why the jury should discount Ms Alliston’s evidence as “nothing but a pack of lies.”  The prosecutor did not seek to rely upon Dr Fisher’s evidence to justify an allegation that Ms Alliston had lied because she knew that telling the truth would implicate her in the commission of the offence. 

[52] After the trial judge gave the directions I have quoted, which did invite the jury to consider whether the lie “was told because [Ms Alliston] knew that the truth of the matter would implicate her in the commission of an offence”, her counsel submitted that such a direction should not have been given.  In response to a question by the trial judge the prosecutor confirmed that it was always her intention to rely upon the alleged lies told by Ms Alliston as “lies going only to her credit.”  The trial judge did not give any redirection on the point. 

[53] The respondent conceded that the prosecutor only relied upon lies as going to credit, but argued that the course taken by the trial judge in giving the Edwards direction was prudent and appropriate in circumstances in which his Honour considered that the lie also went to an issue.  The respondent argued that this was so because the lie could be seen as part of a “wider lie of alleging sexual assault by the complainant” upon Ms Alliston. 

[54] The High Court has laid it down that:

“As a general rule … an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards, ‘the accused knew that the truth … would implicate him in [the commission of] the offence’ and if, in fact, the lie in question is capable of bearing that character.”[11]  (citation omitted)

[55] Their Honours pointed out earlier in the same reasons that there may be cases where a trial judge should give such a direction notwithstanding that the prosecutor does not rely upon a lie as being told out of consciousness of guilt, but this was not such a case.  The trial judge had in mind the possibility that Ms Alliston lied about the cause of the bruises as part of a broader lie that Mr Plozza had attacked her, and that this broader lie indicated a consciousness that she was guilty of the offence with which she was charged.  However the prosecutor did not mount such a case, and in any event, the direction as given was inadequate because it did not refer to the obvious explanation for the lie that the bruises were attributable to Ms Alliston’s discreditable drug use.

[56] In my respectful opinion the trial judge should not have given the Edwards direction in the face of the prosecutor disclaiming any reliance upon the alleged lie otherwise than as going to credit, and where the only evidence said to prove the alleged lie itself demonstrated that the truth involved discreditable conduct other than the commission of the offence charged.  His Honour instead should have given a direction of the kind articulated in the plurality judgment in Zoneff v The Queen,[12] to the effect that the jury should not reason that “just because a person is shown to have told a lie about something, that is evidence of guilt.”

[57] The respondent conceded that if, as I have concluded, the Edwards direction should not have been given, it was a material misdirection which could not be cured by application of the proviso.  That error, together with the insufficiency of the directions about s 7, required that the conviction be set aside.  It is therefore not necessary to discuss ground 2 of Ms Alliston’s appeal, and nothing would be served by doing so.

[58] An order for retrial was then appropriate unless there was substance in ground 1 or ground 3 of Ms Alliston’s appeal.  The argument in support of both grounds was based upon the proposition that the evidence fell short of establishing a case of robbery, as distinct from mere stealing, particularly because there was no evidence that Ms Alliston knew that a robbery was intended.  The critical element which was submitted to be missing was evidence that Ms Alliston knew that there was, or was to be, a link between the violence used by Mr Graham and the alleged stealing of Mr Plozza’s money.  My reasons in relation to the application of s 7 of the Criminal Code in Mr Graham’s appeal explain why I did not accept that argument.

[59] There was a case fit to go to the jury.  A conviction by a properly directed jury would not be unreasonable on the whole of the evidence.  It was therefore appropriate to order a retrial.

[60] CHESTERMAN JA:  I agree with Fraser JA’s reasons for the orders made by the Court on 1 June 2011.

[61] JONES J: I have read the reasons of Fraser JA. I respectfully agree with those reasons.