SUPREME COURT OF QUEENSLAND

[1]  MUIR JA:  Introduction  The appellants, Malakai Lui and Dustin Johnston, appeal against their convictions on 8 October 2010 for the murder of Daniel Dwyer on or about 6 August 2008.  The appellants were charged on the indictment with one David Galloway.  He was acquitted.  Before identifying and discussing the grounds of appeal, it is useful to give an account of the facts before the jury.

The evidence

[2] The jury had before it the following evidence which it was entitled to accept.  Lui and Johnston formed a plan to rob the deceased, who was known to them as a drug dealer, in the deceased’s home.  Part of their plan involved the tying up of the deceased.  Alerted by a telephone call at about 6:30 pm on 8 October 2010, police officers went to the deceased’s residence at Back Street, Biggera Waters, where they found the deceased lying face down in his lounge room.  His face was covered with a black mat secured around his head by “silver gaffer tape”.  His feet and hands were tied behind him.  An elastic rope (described as an “octopus” or “occy” strap) secured around his neck and extending the length of his back to his ankles, around which it was also secured, pulled his head back towards his feet and exerted pressure on his neck.  There were also zip ties around the deceased’s hands. 

[3] Dr Milne, a specialist forensic pathologist who conducted a post mortem on the deceased on 10 August 2008, gave the following evidence.  The silver tape bound tightly “across the lip region … blocked off the lower parts of the [deceased’s] nostrils, which would have impaired breathing ability.”  The tape “tightly, pressed the upper lip against the mouth” decreasing the deceased’s ability to breath through his mouth.[1]  The tape also partly obstructed the nostrils and would have impaired breathing,[2] although the blockage of the lower part of the nostrils by the tape was only minor in its effect.[3]

[4] The deceased’s ability to breath was also restricted by the fact that he was lying face down.  Pressure from the octopus strap on his neck, which could be released only by his pulling his head back and his feet up, contributed to his breathing difficulties.  The cloth round his head reduced the amount of oxygen available to his nose and mouth. 

[5] There was mild scarring of the deceased’s heart linked with narrowing of his arteries.  There was, however, no evidence of old or recent heart attacks.[4]  The cause of death was “multifactorial” asphyxia.  The most significant of the factors which contributed to the deceased’s death was the pressure on the front of the neck exerted by the octopus strap.  If no one came to his aid he would have inevitably died in that position.  The binding of the head and the taping of the nose and mouth area “would have contributed to the asphyxia”.  Mucus in the deceased’s nose “would have made breathing more difficult as well” and “the binding might have made it more difficult to clear that mucus.”  Additionally, the deceased’s face down position decreased his “ability to expand the chest and fill the lungs with oxygen.” 

[6] With the deceased’s severe “degree of coronary arthrosclerosis, he could have had angina, or chest pain, or unconsciousness, or sudden death at any time”.  The risk of a heart attack would have been increased by a struggle.  Although a heart attack was a possible “mechanism of death”, asphyxia was more likely.[5]  If the deceased did have a heart attack, “as the mechanism of death … it would be secondary to all the other events”,[6] namely being involved in an altercation and being under restraint with breathing difficulties which placed additional strain on the heart and caused psychological stress.

[7] Although death by a “cardiac event” could not be ruled out,[7]  if the deceased was still breathing when his assailants departed, a heart attack was an “extremely unlikely” cause of death.  Asked in re-examination if it was reasonable to presume that the deceased had a heart attack out of the blue, Dr Milne responded, “It is something I can’t exclude.  I think it is unlikely but I can’t test for it either.”  If the deceased had a heart attack after being restrained and after being attacked, the heart attack, in Dr Milne’s opinion, would have been “secondary”.

[8] Dr Milne noticed the following injuries on the body which he considered to be consistent with the deceased’s having been involved in a physical altercation:  a laceration to the left eyebrow; bruising to the back, pelvis and nose; injuries to the knuckles; abrasions to the forearm and lower limbs. 

[9] Johnston admitted to police that when Lui held the deceased down whilst taping his hands he, Johnston, tied the deceased’s legs.  He admitted that it was his idea to tie the deceased up and that he had put the tape over the deceased’s mouth and taped the mat to cover his face.  He said that the deceased had resisted and that Lui had sat on his back as well as hitting the deceased several times causing the deceased to soil himself. 

[10]  Both Johnston and Lui denied any knowledge of the octopus strap.  They claimed that a telephone cord had been used for securing the deceased.  Although a telephone cord was found on the body, it was not secured to either the deceased’s neck or legs.  Lui admitted participating with Johnston and Galloway in planning the robbery and said that his role was to overcome the deceased once entry to the deceased’s dwelling was obtained, bring the deceased to the ground and restrain him.  He further admitted attempting to tie the deceased’s hands with cable ties, unsuccessfully, and to restraining the deceased as Johnston used tape to bind the deceased’s hands and feet. 

[11]  Lui told police that Johnston sat on top of the deceased as Lui and Galloway searched through the unit.  He admitted assisting Johnston to move the deceased into the hallway and said that when the deceased was moved he was still “kicking around”.  Both appellants made statements to the effect that the deceased was still alive when they left the deceased’s dwelling.

The alleged change in the prosecution case

[12]  Both appellants argue that the trial judge erred in permitting the prosecution to mount an alternative case, first raised in the prosecutor’s address, that the cause of death of the deceased may have been a heart attack.  The prosecution case was originally particularised as follows:

“1.The case against all three accused is based on Section 302(1)(b) – felony murder. The unlawful purpose was robbery. The act “likely to endanger human life” was the restraining of the victim Daniel Thomas Dwyer.

2.Each accused was a party to the offence either under Section 7 or Section 8 or both.

3.The evidence against each accused comes principally from their individual interviews with police and admissions made to others and in the case of Johnston, admissions recorded on a listening device.

4.It is the prosecution case that each accused confesses to participation in the plan to rob the victim. Each admits to being party to the restraining of the victim either by doing the restraining or in the case of Galloway knowing it was done (and not withdrawing from such a plan). Each admits to leaving [the victim’s] home knowing [he] was restrained.

5.Dwyer died from asphyxiation caused by being restrained in the manner that he was restrained which included (a) having his hands bound behind his back with cable ties and duct tape, (b) having his legs taped together with duct tape, (c) having his mouth covered with duct tape, (d) having a mat taped around his head, (e) having an octopus strap around his neck and connected to his legs behind his back and (f) being left lying face down. The door to the unit was left closed.

… ”

[13]  In the course of his address, the prosecutor submitted that if defence counsel submitted that the cause of death was a heart attack, the jury should ignore the submission.  He explained that if the deceased did die of a heart attack, it would have occurred after the appellants had left and it would have been caused by what the appellants had done to him.  In argument in the absence of the jury, defence counsel submitted that the prosecution case was based on death by asphyxiation and that to permit the prosecution to rely on death by restraint, however caused, would have the result of unfairly extending the prosecution case to the prejudice of the appellants.  That was because, it was argued, cross-examinations could have been conducted differently had the prosecution case been enlarged from the outset.[8] 

[14]  The trial judge relevantly summed up as follows:

“The prosecution case is also that Mr Dwyer died from asphyxiation caused by being restrained in the manner that he was restrained which included: (a) having his hands bound behind his back with cable ties and duct tape; (b) having his legs taped together with duct tape; (c) having his mouth covered with duct tape; (d) having a mat taped around – taped on his head; (e) having an octopus strap and (sic) his neck and connected to his legs behind his back, and; (f) being left lying face down with the door to the unit being left closed.”[9]

[15]  His Honour identified the defence cases as follows:

“The defence cases for Mr Lui and Mr Galloway appear to be that the restraining anticipated by them did not include the use of the octopus strap, that what each did individually was not an act of such a nature as to be likely to endanger human life, and that the prosecution has not established that they were parties to the offence committed by Mr Johnston. 

Mr Johnston’s case appears to be that the restraining of Mr Dwyer with the octopus strap was the act of such a nature as to be likely to endanger human life and not the general restraint relied on by the prosecution, that the prosecution has not established that the use of that strap caused Mr Dwyer’s death, and that the prosecution has also not disproved the possibility that a realistic cause of death was a heart attack brought on by the struggle rather than asphyxiation brought on by the general restraint of Mr Dwyer, and that his client is therefore not guilty of murder, but guilty of manslaughter, because the struggle of itself was not an act likely to endanger human life.”

[16]  The trial judge then dealt with the change in the prosecution case as follows:

“The prosecution response to the latter argument is that even if Mr Dwyer died as a result of a heart attack brought on by the struggle it arose out of the restraining of him which in the circumstances was likely to endanger human life so that Mr Johnston remains guilty of murder.

If you are satisfied that the actions of the accused caused the death of Daniel Dwyer by means of a heart attack, but you are not satisfied that the heart attack occurred after he was restrained in a way that endangered human life, in this case, the attachment of the octopus strap to the neck and legs, then you would convict him of manslaughter.”

[17]  Dealing with the question of causation, the trial judge directed:

“Do you think that the act of restraining Mr Dwyer in the manner described was something that was likely to endanger human life? If you are satisfied beyond reasonable doubt that it was and that each defendant was a party to that conduct, then you may find that the defendants murdered Mr Dwyer. That is so even though the defendants did not mean to kill or to hurt him at all. If you are left with a doubt about the answer to that question, then you must find the relevant defendant or defendants not guilty of murder.

On the other hand, if you are satisfied beyond reasonable doubt that an ordinary person would have realised that there was a real risk that Mr Dwyer would be killed if he was left tied up in those circumstances, then it is open to you to find the defendants guilty of murdering him if it did in fact cause his death. I shall deal further with the prosecution and defence arguments about these issues later.”  (emphasis added)

[18]  In dealing with the prosecution case, the primary judge said:

“The prosecution case is also that each accused has confessed to participation in the plan to rob the victim, that each admits to being a party to the restraining of the victim either by doing the restraining, or, in the case of Mr Galloway, knowing it was done and not withdrawing from such a plan, and that each admits to leaving Dwyer’s home knowing Dwyer was restrained.

The prosecution case is also that Mr Dwyer died from asphyxiation caused by being restrained in the manner that he was restrained which included: (a) having his hands bound behind his back with cable ties and duct tape, (b) having his legs taped together with duct tape, (c) having his mouth covered with duct tape, (d) having a mat taped to his head, (e) having an octopus strap around his neck and connected to his legs behind his back, and (f) being left face down with (g) the door to the unit being left closed.

It’s a matter for you to decide what the act is which is of such a nature as to be likely to endanger human life, but you may well decide on facts such as this that it’s unrealistic to isolate one element of the restraining of the deceased as the only act which is of such a nature as to endanger human life when the evidence is, as Dr Milne said, that the deceased died because of multifactorial asphyxia. In other words, you may well think that the prosecution case based on the whole of the restraint is what you need to consider. 

The prosecution response to the argument put by Mr Wilson for Mr Johnston is that even if Mr Dwyer died as a result of a heart attack brought on by the struggle it arose out of the restraining of him which, in the circumstances, was likely to endanger human life so that Mr Johnston remains guilty of murder. 

If you were satisfied that the actions of the accused caused the death of Daniel Dwyer by means of a heart attack, but you were not satisfied that the heart attack occurred after he was restrained in a way that endangered human life, in this case the attachment of the octopus strap to the neck and legs, then the prosecution says you would be able to convict him of manslaughter.” (emphasis added)

[19]  After addressing other aspects of the defence cases, the trial judge said:

“From those arguments there are several questions for you to consider. The first is, what was the plan the defendants entered into, and was the killing of Mr Dwyer the kind of offence likely to be committed as the result of carrying out that plan? The next question is, what act was of such a nature as to endanger human life? Was it the restraining of him generally, or with the addition of the restraining of him with the octopus strap? Who restrained him with the octopus strap? Was it Dustin Johnston or Malakai Lui? Were Dustin Johnston, Malakai Lui and David Galloway parties to the restraining of him generally and to the restraining of him with the octopus strap? What caused his death, multifactorial asphyxia, the octopus strap, or heart attack brought on by the restraining of him?”  (emphasis added)

[20]  It was contended by counsel for each appellant, in effect, that once it was established by Dr Milne’s evidence that cardiac arrest rather than asphyxiation was a realistic possible cause of death, defence counsel had achieved their objective, on the prosecution case as particularised, of showing that death by asphyxiation could not be established beyond reasonable doubt.  It was claimed that any broadening of the case to include death by heart attack, meant that the cross-examinations conducted by defence counsel were inadequate as the link between the cardiac arrest and the violent struggle and stress were left unexplored.  It followed, so it was said, that the appellants were thus unfairly prejudiced by the broadening of the particulars. 

[21]  In my respectful opinion, there was no prejudice to either appellant resulting from the broadening of the prosecution case.  The trial judge left the case to the jury on the basis that for there to be a conviction for murder, the jury had to find that the restraint was of such a nature as to endanger human life and that the deceased’s death resulted either from a heart attack brought on by his having been restrained in a way that endangered human life or asphyxiation resulting from the restraint.  The only other possible cause of death open on the evidence was a heart attack which was unconnected with the restraint or resulting from the violence and stress inflicted on the deceased prior to his being restrained.  Dr Milne’s evidence, not surprisingly, was to the effect that the violence perpetrated on the deceased when he was attacked and trussed up, his bondage and consequent oxygen deprivation and the obvious accompanying stress would all have contributed to his heart attack if he had suffered one.

[22]  When there is no single cause of death “… if the accused’s conduct is a substantial or significant cause of death that will be sufficient, given the requisite intent, to sustain a conviction for murder.  It is for the jury to determine whether the connexion between the conduct of the accused and the death of the deceased was sufficient to attribute causal responsibility to the accused.”[10]  In Royall v The Queen,[11] Mason CJ,[12] Deane and Dawson JJ,[13] Toohey and Gaudron JJ[14] referred with approval to the following observations of Burt CJ in Campbell v R:[15]

“It would seem to me to be enough if juries were told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them they appreciating that the purpose of the enquiry is to attribute legal responsibility in a criminal matter.”

[23]  Both on the expert evidence of Dr Milne, which was effectively unchallenged on the point, and as a matter of common sense, the acts particularised by the prosecution were a “substantial or significant” cause of the deceased’s death.  That is so whether the deceased died from asphyxiation, as Dr Milne thought, or from a heart attack.

[24]  The evidence-in-chief of Dr Milne raised the mere possibility of death by heart attack.  He found no evidence of a heart attack, whether old or new.  Defence counsel cross-examined with a view to establishing that, having regard to the deceased’s physical condition, death from a heart attack was a distinct possibility rather than mere speculation.  Whether the deceased died from a heart attack or from asphyxiation then became an issue in the case.

[25]  After counsel for Lui had questioned Dr Milne in relation to the degree of narrowing of the deceased’s arteries, this exchanged occurred:

“And that’s a significant pre-existing disease, is it not?-- Yes.

And I take it that’s why you’ve conceded that a struggle, for example, could bring on a heart attack?-- Yes.

Because of the level of that disease?-- Yes.

For example, with a normal healthy person without such a level of disease, a struggle would not necessarily bring on a heart attack?-- That’s right.

But because of the level of disease in this man, it is more likely that a struggle might bring on a heart attack?-- Yes.

And I think you have said in your evidence that there is no test we can do to work out whether or not a heart attack has taken place?-- That’s correct. It can’t be determined.

That’s why we can’t be certain, I suppose?-- Yes.

But, certainly, a heart attack in a man with this level of narrowing could occur spontaneously?-- Yes.

I mean, just sitting down watching TV or any normal activity----- ?-- Yes.

-----or during such a struggle?-- Yes.”

[26]  Asked, in effect, why defence counsel would have seen any point in taking this cross-examination further, counsel for Lui responded:

“Well, I’ll readily concede that this isn’t my best point but – and it’s difficult perhaps in the context of the way that the trial unfolded to know what more cross-examination would have taken place, but had – had the defence been alerted to the more broad particularity that the Crown then ultimately relied upon, a more fulsome cross-examination could have further explored that realm of possibility to extract from – extract from the doctor that these spontaneous scenarios or a heart attack resulting from simply the strain or the stress of the earlier events was more likely or was likely, so – so as to further exclude from the realm of the criminal – satisfying the criminal standard the possibility that the heart attack resulted from the restraint.”

[27]  Lui’s counsel later submitted, in effect, that there could have been a fuller exploration with Dr Milne of whether the heart attack was connected with the restraint.

[28]  Counsel for Johnston said in relation to this issue:

“Like my learned friend I concede that the issue was canvassed in cross-examination by Mr Wilson who appeared for my client but nonetheless had the attention of the parties been focused at an early state upon the contention that a heart attack was an alternative cause of death and that that heart attack was caused by an act or acts likely to endanger life then it’s likely that it would have received further attention.

It’s very difficult with the benefit of hindsight to say precisely how that might have been done but, as your Honours would be aware, during the course of a trial, being perhaps an organic creature, it’s very much a case of the way in which the evidence is given and the way in which the points or the concessions are extracted in cross-examination.”

[29]  In my view, the claims that the defence suffered prejudice as a result of the change in the particulars have not been made good.  Any cross-examination of Dr Milne about what may or may not have caused the heart attack, of which Dr Milne said there was no evidence, involved a discussion of the largely hypothetical.  Given the condition of the deceased and having regard to Dr Milne’s evidence-in-chief, it was abundantly apparent that a cross-examiner would have had no difficulty in obtaining from the doctor answers of the nature of those set out in paragraph [25] hereof.

[30]  The possibility that counsel could have elicited from Dr Milne a concession to the effect that, assuming that the deceased died of a heart attack, the way in which the deceased was restrained was not a substantial or significant cause of it may be thought singularly remote.  Of course, Dr Milne had never resiled from his evidence that if the deceased was still breathing when his assailants departed, a heart attack was an “extremely unlikely” cause of death.  His opinion was also clear that, if the deceased had a heart attack after being restrained and after being attacked, the heart attack would have been “secondary” to all the other events.

[31]  It follows from the foregoing that the primary judge did not err in permitting the prosecution to expand its particulars to enable it to rely, in the alternative, on a heart attack arising from the deceased’s restraint.

The unsafe and unsatisfactory ground

[32]  Counsel for Johnston argued that his client could be convicted of murder only by operation of s 302(1)(b) of the Criminal Code.  Under that provision, Johnston would have been guilty of murder only “if death [was] caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life.”  He argued that as the deceased suffered from coronary atherosclerosis there was a realistic possibility that he died as a result of a spontaneous heart attack or a heart attack brought on by the increased stress associated with the struggle and physical altercation.  In neither case, it was submitted, would Johnston be liable to a conviction for murder.  Rather, it was contended, Johnston could be convicted of murder only if the prosecution proved beyond reasonable doubt that the deceased died from asphyxiation resulting from the use of the octopus strap or from a heart attack caused by the added stress on the deceased occasioned by the octopus trap. 

[33]  It may be said immediately that this submission overly confines the prosecution case.  That case, as particularised and as presented, was that the deceased died from asphyxiation caused by his being restrained in a particular manner and in a particular position in circumstances which reduced the possibility of the early detection of his restrained condition.  The argument which focused on the octopus strap to the exclusion of the other matters particularised by the prosecution must be rejected.

[34]  It was submitted by the counsel for both appellants that the upshot of Dr Milne’s evidence was that the possible causes of death included:

(a)spontaneous heart attack; and

(b)heart attack precipitated by the increased stress resulting from the actions of the appellants and others in the struggle with the deceased and the events surrounding robbery.

[35]  It was submitted that having regard to those matters, the prosecution could not have excluded the possibility that the deceased was left alive, restrained in a dangerous manner, but otherwise able to breath and bide his time awaiting the arrival of someone to assist him, and that either spontaneously or as a result of the stress of the struggle and the robbery (none of which was, of itself, likely to endanger human life), he suffered a fatal heart attack.

[36]  As has already been pointed out, the attributing of a possible heart attack to events unconnected with conduct which significantly increased the risk of a heart attack may be rejected as fanciful.  Also, the proposition that, if the deceased did die of a heart attack, the very considerable stresses imposed on him by his bondage, his discomfort and pronounced difficulty in breathing were not to be regarded as a substantial or significant cause of the heart attack, and thus the death is also fanciful. 

[37]  The following discussion by McPherson J in R v Summers[16] is germane to the present discussion:

“…What is required of the prosecution in discharging the onus of proof of guilt is not that every possibility of innocence be excluded by the evidence but only that every reasonable possibility be excluded.  It is only if the jury ‘think there is that reasonable possibility’ of innocence that ‘it is one which to the jury would raise a reasonable doubt as to the guilt of the accused’:  R. v. McKenna (1964) 81 W.N. (Pt 1) (N.S.W.) 330, 334 per McFarlane J.  The existence of an admitted possibility but one that is assessed by experts in the field as being ‘extremely unlikely’, or ‘very remote’, or the result of a ‘very rare coincidence’ is not sufficient to introduce a reasonable doubt precluding the jury from being satisfied to the requisite standard of the proof of guilt.

It is therefore plain that the jury were not in law bound to reach a verdict of not guilty in the present case.  That leads on to the second of the two answers to the appellant’s proposition in this case.  It is that one should not confuse a proper regard for the requirements of complete scientific accuracy with the rule of law that guilt should be proved beyond reasonable doubt.  Scientific proof, says Phipson, ‘may require certainty.  To require it of legal proof would be to produce absurdity’:  Phipson on Evidence, 13th ed., para. 4–31, at 62.  The example offered in that text is R. v. Bracewell (1978) 68 Cr.App.R. 44, where, in ascribing death to manual strangulation, the pathologist who testified at a trial for murder conceded that he could not, with absolute certainty, rule out the possibility that there had been partial strangulation, recovery and then a fatal heart attack.  In approving the direction given to the jury in that case, Ormrod L.J. said (68 Cr.App.R 44, 49):

‘That direction, in our judgment, correctly draws the distinction between what might be described as scientific proof on the one hand and legal proof on the other.  It is, with respect, an admirably lucid and succinct way of dealing with a problem which often arises in connection with scientific evidence.  It is, of course, part of cross-examining counsel’s duty to invite expert witnesses to consider alternative hypotheses and, after examining them in detail, to conclude by asking “Can you exclude the possibility?”  The available data may be inadequate to prove scientifically that the alternative hypothesis is false, so the scientific witness will answer “No, I cannot exclude it,” though the effect of his evidence as a whole can be expressed in terms such as “But for all practical purposes (including the jury’s), it is so unlikely that it can safely be ignored”.  This is in substance what Dr. Green said.’

In relation to the standard of proof, the direction given in that case used language which, although acceptable at the time in England, has been rejected in Australia:  See Thomas v. The Queen (1960) 102 C.L.R. 584, 593; Dawson v. The Queen (1961) 106 C.L.R. 1, 18.  Subject only to that qualification, what was said in R. v. Bracewell is plainly correct and applies with equal force to the evidence and circumstances in this case.”

[38]  Macrossan CJ also addressed the difference between scientific certainty and the concept of reasonable doubt.  His Honour said:[17]

“The advocate’s opportunity to invite the jury to feel and act upon a doubt will always exist but the jury should always form its judgment using its own common sense and jurors may or may not accept the advocate’s invitation.  The scientific and legal standards are different.  The former has only a notional existence and the latter is a working test to be applied by juries in the real world after appropriate directions from trial judges.  To say this is not to provide positive encouragement to juries to ignore any contrary possibilities which may arise or which can be suggested when they are called on to deliberate and say whether or not all reasonable doubt is in the end eliminated.  It merely places matters in proper perspective.

It has been said by one commentator that if absolute certainty in the theoretical sense were insisted upon, then circumstantial evidence could not be accepted as sufficient proof; Kenny’s Outlines of Criminal Law (1952 ed.) at 417–418.”

[39]  Clearly, this was not a case in which the jury was bound to reach a verdict of not guilty.  Dr Milne could not, with absolute certainty, rule out the possibility that there had been a fatal heart attack arising solely from the deceased’s atherosclerosis or from the attack preceding his being restrained.  However, the effect of his evidence was that, for all practical purposes, the possibility that the deceased died of a heart attack of which the restraint was not a substantial or significant cause could be ignored safely.

Was the summing up defective in its treatment of the cause of death?

[40]  At the conclusion of the hearing of the appeal, counsel were given leave to make further written submissions, if they so desired, concerning the way in which the summing up had dealt with the cause of death of the deceased.  Counsel for Lui’s written submissions concluded as follows:

“[18]Whilst in the general directions it can be said that the standard of proof was clearly stated, and in reference to the elements, including the element of causation, the learned trial judge thereafter failed to direct the jury as to the need to be satisfied of that element of the offence beyond a reasonable doubt when dealing with the evidence as it related to the questions for the determination of the jury and in summarising the essential questions for their determination – that is, in turning their minds to the crucial questions for their determination.

[19]The effect of this is that there is a risk that the jury did not appreciate the need to resolve the question raised in the evidence of Dr Milne as to the role of the heart attack by reference to that standard of proof, particularly, that before convicting, the Crown must exclude heart attack independent of the dangerous act beyond a reasonable doubt.

…

[21]In order to avoid the real possibility of confusion in relation to this issue the jury ought to have been told in a clear way that:

‘if the deceased died after he was restrained, you have to be satisfied beyond a reasonable doubt that his death was caused by his being restrained by a method which included the octopus strap.  If the Crown cannot exclude beyond a reasonable doubt that he had a spontaneous heart attack as a result of his heart disease then the defendants are not guilty; if the Crown cannot exclude beyond a reasonable doubt that he had a heart attack brought on by the stress of the struggle and the altercation, but not the restraining of him with the octopus strap, then they are not guilty of murder but you may then consider manslaughter.  Only if you are satisfied beyond a reasonable doubt that his death was caused, either by asphyxiation or by heart attack, caused by his being restrained in a manner which included the octopus strap are they guilty of murder (assuming the jury found the other elements are satisfied similarly)’.”

[41]  The summing up was replete with instructions to the jury that the onus of proof rested on the prosecution and that the standard of proof was beyond reasonable doubt.  Near the commencement of the summing up, the primary judge, referring to the charge of murder, said:

“Before the defendants can be found guilty of that charge therefore you need to be satisfied beyond reasonable doubt of five things. First, that Daniel Dwyer is dead. Secondly, that the killing was unlawful. Thirdly, that each of the defendants did an act by means of which his death was caused. Fourthly, that each defendant’s act was of such a nature as to be likely to endanger human life. In this case the act alleged by the prosecution against each accused is the restraining of the victim, Daniel Dwyer. Fifthly, that each did that act in carrying out the purpose of robbing the deceased.”  (emphasis added)

[42]  This direction was repeated later.[18]

[43]  The primary judge maintained appropriate focus on causation, instructing the jury:

“For this purpose, therefore, you need to concern yourselves with the question whether any of the defendants intended to kill or harm Mr Dwyer – sorry, you need not concern yourselves with the question whether any of the defendants intended to kill or harm Mr Dwyer. It’s enough if you are satisfied that: first, the particular defendant did an act by means of which the death of Mr Dwyer was caused; secondly, that the defendant’s act was of such a nature as to be likely to endanger human life, and; thirdly, that he did that act in carrying out the purpose of robbing Mr Dwyer.”  (emphasis added)

[44]  The onus and standard of proof were later the subject of specific directions.[19]  The jury was instructed that they had to be satisfied beyond reasonable doubt of every element of the offence.  In a discussion of circumstantial evidence the trial judge directed:

“If there is any reasonable possibility consistent with innocence, it is your duty to find the defendant not guilty. This follows from the requirement that guilt must be established beyond reasonable doubt. Thus, in this case, unless you are satisfied that the prosecution have proved that each defendant did an act by means of which Mr Dwyer's death was caused, and that that act was of such a nature as to be likely to endanger human life, then you would find the accused not guilty of murder.”

[45]  The primary judge discussed the respective defence cases concluding with the contention that the prosecution had not disproved the possibility that a realistic cause of death was a heart attack brought on by the struggle between the deceased and his assailants rather than asphyxiation brought on by “the general restraint” of the deceased and that Johnston could not be guilty of murder as the struggle was not an act likely to endanger human life.  His Honour then said:

“The prosecution response to the latter argument is that even if Mr Dwyer died as a result of a heart attack brought on by the struggle it arose out of the restraining of him which in the circumstances was likely to endanger human life so that Mr Johnston remains guilty of murder.

If you are satisfied that the actions of the accused caused the death of Daniel Dwyer by means of a heart attack, but you are not satisfied that the heart attack occurred after he was restrained in a way that endangered human life, in this case, the attachment of the octopus strap to the neck and legs, then you would convict him of manslaughter.”

[46]  In this direction the primary judge should not be regarded as having contradicted his earlier and clear directions that a conviction for murder can result only where the defendant in question “did an act by means of which the death of [the deceased] was caused”.  The primary judge fairly and comprehensively summarised the defence and prosecution cases and dealt at some length with the competing arguments about the cause of death.  There was no suggestion in this part of the summing up that the prosecution did not need to prove that it was the restraint, in the broad sense, which caused the deceased’s death whether by heart attack or by asphyxiation before the jury could convict. 

[47]  The primary judge made a similar point later when discussing the parties’ competing contentions concerning the cause of death:

“The prosecution response to the argument put by Mr Wilson for Mr Johnston is that even if Mr Dwyer died as a result of a heart attack brought on by the struggle it arose out of the restraining of him which, in the circumstances, was likely to endanger human life so that Mr Johnston remains guilty of murder.

If you were satisfied that the actions of the accused caused the death of Daniel Dwyer by means of a heart attack, but you were not satisfied that the heart attack occurred after he was restrained in a way that endangered human life, in this case the attachment of the octopus strap to the neck and legs, then the prosecution says you would be able to convict him of manslaughter.

Mr Johnston's case is that the restraining of Mr Dwyer with the octopus strap was the act of such a nature as to be likely to endanger human life and not the general restraint relied on by the prosecution. The argument goes on that the prosecution has not established that the use of that strap caused Mr Dwyer's death, and that the prosecution has also not disproved the possibility that a realistic cause of death was a heart attack brought on by the struggle rather than asphyxiation brought on by the general restraint of Mr Dwyer, and that his client is therefore not guilty of murder but guilty of manslaughter.”

[48]  After concluding his discussion of the prosecution and defence cases, his Honour said:

“From those arguments there are several questions for you to consider. The first is, what was the plan the defendants entered into, and was the killing of Mr Dwyer the kind of offence likely to be committed as the result of carrying out that plan? The next question is, what act was of such a nature as to endanger human life? Was it the restraining of him generally, or with the addition of the restraining of him with the octopus strap? Who restrained him with the octopus strap? Was it Dustin Johnston or Malakai Lui? Were Dustin Johnston, Malakai Lui and David Galloway parties to the restraining of him generally and to the restraining of him with the octopus strap? What caused his death, multifactorial asphyxia, the octopus strap, or heart attack brought on by the restraining of him?” (emphasis added)

[49]  The jury also had the benefit of extensive and logically presented written materials.  The elements of the offence of murder contained in this material were in accordance with the primary judge’s oral directions and thus required proof beyond reasonable doubt that the relevant defendant “did an act by means of which the death was caused”.  The written direction on the elements of the offence of murder dealing with s 302(1)(b) of the Criminal Code directed that:

“Elements of the Offence

Murder

• Criminal Code s 302(1)(b)
• ‘A person who unlawfully kills another under any of the following circumstances, that is to say:
• …
• if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life; … is guilty of murder.’”

[50]  Unless the summing up is considered with undue focus on isolated passages, it is abundantly apparent that the jury would have understood that, in order to convict, they had to find beyond reasonable doubt that the restraint was an act of such a nature as to be likely to endanger human life and that it was the restraining of the defendant, using the word “restraining” in its broad sense, which caused the death of the deceased either by asphyxiation or heart attack.

[51]  Accordingly, no appellable error has been shown in the primary judge’s summing up.

Conclusion

[52]  For the above reasons, I would order that the appeals be dismissed.

[53]  FRASER JA:  I agree with the reasons for judgment of Muir JA and with the orders proposed by his Honour.

[54]  McMURDO J:

The prosecution case  The prosecution case was brought upon the basis of s 302(1)(b) of the Criminal Code (Qld) which provides as follows:

“302(1)Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say –

(a)…

(b)if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;

…

is guilty of murder.”

[55]  The prosecution had to establish that the deceased was murdered by someone, according to that provision.  Then, against each defendant, it had to prove that he was a party to that offence.  It sought to do so by reference to s 7 and s 8 of the Code.  But it is that first question, whether the victim was murdered, which is the subject of these appeals.

[56]  According to s 302(1)(b), the prosecution had to prove that there was an act which had two relevant characteristics.  The first was that it was an act done in the prosecution of an unlawful purpose.  This presented no difficulty because anything which was done to the deceased had been done for the unlawful purpose of robbing him.  The second was that the act was of such a nature as to be likely to endanger human life.  This required more precision in the identification of the relevant act, because not everything which was done to the victim was of that nature. 

[57]  Throughout the trial, and upon this appeal, the prosecution identified the relevant act as “the restraining of the victim”.  It particularised that restraint by alleging that the victim was:

“… restrained in the manner that he was restrained which included (a) having his hands bound behind his back with cable ties and duct tape, (b) having his legs taped together with duct tape, (c) having his mouth covered with duct tape, (d) having a mat taped around his head, (e) having an octopus strap around his neck and connected to his legs behind his back and (f) being left lying face down.  The door to the unit was left closed.”

[58]  It can be seen that the prosecution case identified not one but several acts, in the sense of several things done to the victim.  Each resulted in some restraint of the victim, save for the last of them.  The description of the relevant act as “the restraining of the victim” was more a statement of the position in which the victim had been left than an identification of a relevant act or acts.  But in the prosecutor’s opening, the case was clearly enough explained.  The case focussed upon the act of the application of the octopus strap, in the context of the victim having been restrained in those other ways.  The prosecutor said this in his opening:

“The octopus strap is put around the legs – hooked back on itself is the nature of using an Occy strap – passes up his back and put around his neck and hooked back on itself.

Now, what this means is that his legs are up in the air. … The natural tendency – you know this, but Dr Milne will talk about it – is that you have to control – you have to be conscious to control your legs and keep them up, because if you relax and they go out, it tightens the strap, and Dr Milne says that’s what killed him.  Ultimately he couldn’t keep his legs up and he asphyxiated because his windpipe was cut off.  Anyone with any knowledge of the human body, anyone with an iota of common sense would know that that was dangerous, an act likely to endanger human life.”[20]

[59]  If the relevant act could be appropriately identified as “the restraining of the victim”, it was the particular restraint of the victim, of which the application of the octopus strap was an essential element.  The better way of describing the prosecution case was that the relevant act was the application of the octopus strap, in the circumstances as described in the particulars which included the other forms of restraint which had been applied.

[60]  It was necessary for the prosecution to identify the relevant act in seeking to prove that such an act was of a nature which was likely to endanger human life.  This was also necessary for a consideration of the operation of s 7(1)(a) and s 7(1)(b), because it was far from apparent that everything which was done to the victim was done by the same person.  And a precise identification of the relevant act was necessary for the issue of causation.  It was not sufficient for the prosecution to prove that a dangerous act was done in pursuing an unlawful purpose, and that in the pursuit of that purpose death was caused.  It was necessary to prove that it was the inherently dangerous act which caused the victim’s death. 

[61]  In Ryan v The Queen,[21] this necessity for the identification of the act which caused the death was discussed in the context of s 18 of the Crimes Act 1900 (NSW), which provided that murder should be taken to have been committed where the act of the accused (or an omission by him) which caused the death was done with a certain state of mind or in certain circumstances.[22]  Barwick CJ there said:

“Ordinarily, the identification of the act causing death gives no difficulty, a circumstance which may tend to obscure the logical and practical necessity to isolate that act, for it is of it, and it alone, that one or more of the several specified conditions or concomitants must be predicated if the terms of s 18 are to be satisfied.”[23]

The evidence

[62]  I gratefully adopt the summary of the evidence provided by Muir JA in paragraphs [2] to [11] of his judgment.  I will need to discuss further the evidence of Dr Milne.

[63]  The prosecution called Dr Milne on the fourth day of the trial.  At that point there was no indication that it would depart from the case which it had particularised and opened, which was that death was by asphyxiation.  In his evidence in chief, Dr Milne described each of the ways in which the victim had been restrained and how that would or would not have impaired breathing.  He concluded that the cause of death was asphyxia which was “multifactorial”, meaning that several things contributed to it.  The most significant thing was the octopus strap, placing pressure on the front of his neck.  He said that:

“… to reduce that pressure he would have to maintain muscular control, probably lifting his head up and lifting his feet up.  So he was going to have to be conscious to do that, and if no-one comes to his aid, inevitably he is going to die if he is in that position.”

But the other contributing factors were “the binding of the head … before taping the nose and mouth area”, the mucus in the victim’s nose and his being left in the face-down position.  Whilst he identified those several contributors to the asphyxiation, he did not say that any of them, operating alone or in combination but absent the octopus strap, was of such a nature as to be likely to endanger human life. 

[64]  Also in examination in chief, he described what had been the heart condition of the victim and his particular susceptibility to a heart attack.  The victim had severe narrowing of two of the three arteries of his heart.  Dr Milne said:

“And with his degree of coronary arthrosclerosis, he could have had angina, or chest pain, or unconsciousness, or sudden death at any time, and without me being able to show evidence of that.  Is that a cause – is that – it is possibly a mechanism of death in this case.  I think it is more likely it is asphyxia, but I can’t exclude that he had a heart attack of either of those types.”[24]

There were then these questions and answers:

“By description from interviews there is a struggle by the deceased - again, knocked to the ground, then he is being restrained and he is struggling, able to bite someone and because he continued to struggle, there is more restraints put on him?-- Okay.

If that’s correct, then what do you say about the likelihood of a heart attack?  And if there were one what would have been its cause?--  If there was - well, I assume the death itself hasn’t been witnessed?

No?--  Okay.  Well, if you had a heart attack, he probably didn’t have it then, he could have had the heart attack afterwards.  The likelihood – I mean, I said before he could have had a heart attack at any time.  So he could be sitting at home, he could be sleeping, he could be doing anything.  You are more likely to have a heart attack at times when the heart is under added strain or stress, and that would include being involved in an altercation.  So the blood pressure is going to be up, you are going to have adrenalin in the body putting extra stress on the heart.  Similarly, once he’s placed into the restraints, having difficulty breathing, again he is going to put additional strain on the heart.  So if he did have a heart attack as the mechanism of death, I think it would be secondary to all the other events.”[25]

[65]  There are several things to be noted about that evidence.  The first is that the possibility of a heart attack in this man’s case was more than simply theoretical.  The second is that the likelihood of a heart attack was increased because of what was done to him.  There were two points there:  a heart attack was more likely with the “added strain or stress” of “being involved in an altercation” and also, there would be an additional strain on the heart by his having difficulty breathing by “the restraints”.  Dr Milne was referring to all of those circumstances when he expressed the view that if the mechanism of death was a heart attack, it would be “secondary to all the other events”.  Importantly, he did not confine the range of events and circumstances, which made a heart attack more likely, to the particular restraint by the octopus strap.

[66]  Dr Milne was then cross-examined by counsel for the appellant Johnston.  He was asked to (again) identify “The things that potentially contributed to the asphyxia”.[26]  The first factor was the “compression of the neck by the octopus strap”.[27]  The second factor was “the binding of the head, which partially blocked the nostrils”.  As to that, Dr Milne agreed that “the binding of the head, with the tape, the mat and so on, was very unlikely of itself to cause his death”.[28]  Thirdly, there was his being left in the “face-down” position and again he agreed that this factor alone was very unlikely to have caused his death.[29]  Fourthly, there was “The possible pressure on his back, again limiting the expansion of the chest” which he agreed was “very unlikely to have caused his death unless it was quite a heavy pressure sustained for minutes”.[30]  Fifthly, he agreed that he did not “exclude the possibility that [the victim] had a ligature applied to his neck prior to being bound”, although he thought that this was quite “unlikely because the mark you have got exactly matches the octopus strap in its place.”[31]

[67]  The cross-examiner then explored the possibility of a heart attack.  Dr Milne confirmed that the victim’s coronary atherosclerosis was “severe” as distinct from “mild” or “moderate”.  He explained that “when I call it severe, it’s bad enough that he could die at any time”.  He agreed that in the absence of evidence of ligatures and injuries, this heart condition would have been a sufficient explanation for the death.

[68]  Dr Milne was then asked about the potential for any of the things done to the victim to have caused a fatal heart attack.  He gave this evidence:

“Now, you say that even if he died from this mechanism, it’s the stress of the asphyxia or being bound or the physical altercation he was involved in which caused it, in any event?--  Yes.

Given its proximity to those things?--  Yes.

So, you say that even if he died from coronary atherosclerosis, it was some of or all of these multifactorial features that contributed to it?--  Yes, and also the fact of being in an altercation itself, the psychological stress, I suppose, as well as a physical asphyxia.

Yes.  I was going to come that.  The physical altercation alone could have elevated the stress levels in this man’s heart, such that the coronary atherosclerosis would have been the cause of death?--  Yes.

Without, for example, the ligature to the throat and so on?--  yes.

Any one of these five factors that you have mentioned could have caused this coronary atherosclerosis?--  Yes.

And you cannot rule out, you cannot exclude that that is what occurred, that the cardiac event is what, in fact, killed this man?--  That’s right.

What you do say is whether or not that happened, even an ordinary person would have eventually died from the application of this ligature, the occy strap?--  Yes.

You can’t say whether that, in fact, was the cause here or not, though you consider it to be the most significant feature?--  Yes.”

[69]  In that passage, the “five factors” were those which had just been canvassed with Dr Milne as contributors to asphyxiation.  Importantly, Dr Milne said that any one of them could have caused a “cardiac event” [which] in fact killed this man.  Again, the act or acts which might well have caused a fatal heart attack were not limited to those which the prosecution identified as the act of such a nature as to be likely to endanger human life. 

[70]  Dr Milne was then cross-examined by counsel for the appellant Lui.  He was asked to confirm whether the victim’s existing heart disease made it more likely that a struggle could bring on a heart attack, and he did so.[32]  He also confirmed that “a heart attack in a man with this level of narrowing [of the arteries] could occur spontaneously”.[33]  But this cross-examiner did not explore whether any form of restraint of the victim could have contributed to the prospect of a heart attack, and in particular, whether some form of restraint but without the use of the octopus strap could have done so. 

[71]  In re-examination there was this exchange:

“Now, if the evidence is from admissions that he was still breathing when he was left and he was left in the position that he is found, that is lying pretty much as you have seen him on the – in the morgue as he was presented at the morgue---?--  Okay.

---if he is breathing at that time, can he be breathing after he has had a fatal heart attack?--  No, if he is breathing at that time, I think a heart attack is extremely unlikely.  He could still have had a heart attack following that period.”

It is important to note that what was “extremely unlikely” was not a fatal heart attack, but only one which had occurred before the victim was left in the position in which he was found.  And that was on the assumption that statements by the defendants, that he was alive when they left him, were correct.

[72]  The prosecutor sought to lead the witness, by referring to the bruising on the victim’s neck and suggesting that that was due to the octopus strap.  Dr Milne was then asked this question:

“So if he is straining against it for a long time, then that could cause the injury that then produces the bruising?”

To which he answered:

“Yes, that’s possible?”[34]

[73]  Dr Milne’s evidence concluded with this passage:

“What’s the ultimate cause of death?--  I think it is multifactorial asphyxia.

Right.  And what’s the principal cause?--  The octopus strap.

And in relation to the heart attack, is there any sign that - I mean, in the circumstances, is it reasonable to presume he had one out of the blue?--  It is something I can’t exclude.  I think it is unlikely but I can’t test for it either.

Okay.  And - but given the depth of that ligature impression - is an independent heart attack a realistic proposition?--  Anyone with that degree of coronary atherosclerosis, a heart attack is a realistic consideration, in that he could have a heart attack any time.

Right?--  So it is something - if it is present, it is a consideration.  I think in the context with all else that’s going on, particularly the octopus strap, it is an unlikely cause of death.

And if he is still breathing when he is left?--  Well, he still could have had a heart attack following that, a fatal heart attack.

Yes.  But if it is after that, what would you put it down to, its cause?‑‑  If he has had a heart attack at any time around these events, I think it is secondary to not just the asphyxia, but also any physical altercation and any psychological stress as a result of all the events.”

[74]  In that passage, Dr Milne addressed two possibilities.  One was that of a heart attack “out of the blue”, or what counsel also called an “independent” heart attack.  This, he said, was “an unlikely cause of death” although it was still “a realistic consideration”.  The second matter was the possibility of a heart attack which was not “independent”, about which Dr Milne said that it would be “secondary to not just the asphyxia, but also any physical altercation and any psychological stress as a result of all the events”.  Importantly, he did not confine those events to any of the acts of restraint of the victim, and more particularly, to a restraint involving the octopus strap. 

The new case

[75]  No further particulars were provided after Dr Milne gave his evidence.  Many days later the prosecution closed its case.  None of the defendants gave or called evidence. 

[76]  In the prosecutor’s address to the jury, he discussed the possibility of a heart attack.  He said this:

“Now obviously if he’s alive when they leave, he can’t have had a fatal heart attack.  He would be dead.  He can’t breathe if he’s dead.  He can’t hum if he’s dead.  Stands to reason.  He’s alive when they leave.  They leave him bound up.  That’s important, because if there is a possibility of a heart attack, which must be after that time, a fatal heart attack, which Dr Milne discounts as unlikely, then he says it’s because of what’s happened to him.  The stress of being attacked, being tied up, straining to save your life, if there’s a heart attack, he says, which he says is unlikely, then it’s secondary to those things; so causation is proved.

It may be suggested to you by the defence – I would suggest to you it’s clutching at straws – that out of the blue he’s had a heart attack.  It wasn’t out of the blue if he had one; it’s because of what they did to him.  And he can’t have had it beforehand.  He can’t have just had one as they arrived or as they are tying him up, because he’s alive.  They are very clear on that.  And they are very clear on making that point.  They want the police to believe this, because they are saying we didn’t kill him, because he was still alive when we left.  It’s beside the point, because what they have done to him causes his death.

So when – if any of my learned friends tries to suggest to you that you can’t be satisfied beyond reasonable doubt that they caused his death, that he had a heart attack, well, ignore it.  Because even if he did, it’s after they leave.  And if it’s after they leave, as Dr Milne says, it’s caused by what’s been done to him.  There’s a pre-existing condition that makes him susceptible to that, but that doesn’t matter.  You take your victim as you find them.  And they all know that he’s fairly frail.”

[77]  At least three things must be noted about that passage.  The first thing is that the prosecutor there raised a new and alternative case, which was that the mechanism of death was a heart attack.  This was inconsistent with the particulars.  The second thing is that the possible heart attack was not attributed to what the prosecution had particularised as the relevant act for the purposes of s 302(1)(b).  Rather, it was attributed to “what they have done to him” or “what’s happened to him”.  Now the jury may have understood this as a reference to the defendants “leaving him bound up”.  But he also referred to “the stress of being attacked”.  Dr Milne had referred to a number of things which had been inflicted upon the victim as likely contributors to a heart attack.  Dr Milne had not said that if the victim was alive when the defendants left him, the combined effect of what he had endured to that point could not have increased what was, in his case, already a significant possibility of a heart attack.

[78]  The third thing concerns the prosecutor’s reference to taking “your victim as you find [him]” and the defendants’ knowledge that the victim was fairly frail.  There was no evidence that any of the defendants was aware of the victim’s heart disease; indeed Dr Milne said that the victim himself may have been unaware of it.  But in any case, what was said to the jury was inconsistent with authority.  In Stuart v The Queen, Gibbs J (as he then was) said of this provision of the Code:

“Secondly, the death must have been caused by an act of such a nature as to be likely to endanger human life. … To constitute the second element it is enough that the act which caused the death was in fact likely to endanger human life, whether or not the offender knew that it was dangerous.  Section 302(2) speaks of the nature of the act, not of the knowledge of the offender, and it was rightly said in Reg. v Gould and Barnes ([1960] Qd R 283 at 298), that the test which it requires to be applied is ‘purely objective’.”[35]

The summing up

[79]  The evidence in this trial was extensive.  And the case was complicated by many things, such as the need to distinguish between the evidence admissible against one defendant from that admissible against another.  It was also complicated, perhaps to some extent unnecessarily, by the prosecution’s reliance upon s 7 as well as s 8 of the Code. 

[80]  Each of the appellants had made out of court statements, saying various things about their participation or otherwise in this attack.  Their accounts were inconsistent with each other and, at least in some ways, internally inconsistent.  Neither had admitted that he had applied the octopus strap.  An apparently logical basis for arguing that each was responsible for the killing was by s 8.  The prosecution also suggested that if a defendant had not performed the critical act, he had become a party to the offence under s 7(1)(b) or (c).  That argument made relevant the state of a defendant’s mind.  In particular, it required the prosecution to prove that a defendant actually knew “all the essential facts which made what was done a crime”, as Gibbs CJ said in Giorgianni v The Queen.[36]  In the same case, Wilson, Deane and Dawson JJ described this as a knowledge of “the facts which went to make up the offence”.[37]  This is necessary even for an offence of strict liability, because a person cannot aid, abet, counsel or procure the commission of any offence without having an intention to do so in the light of knowledge of the facts.[38]  Those statements have been applied in the application of s 7 of the Code.[39]  No point is taken by the appellants about the application of s 7 to this case, although a conviction on the basis of that section would have required proof that the appellants each knew not only that the victim was being restrained as he was, but that it involved an act which was likely to endanger human life.  The existence or otherwise of that knowledge was not discussed during the trial.  But I mention the s 7 case as an example of the level of complexity of this case overall.  That complexity made it yet more difficult for the jury, in considering whether a hypothesis as to causation, which was consistent with innocence, had been excluded by the prosecution case.

[81]  Relatively early in the summing up, the trial judge read to the jury s 302(1)(b) and identified the elements of the offence.  His Honour correctly identified the need for the proof of an act which caused the death and for that act to have been of such a nature as to be likely to endanger human life.  At that point, his Honour said:  “In this case the act alleged by the prosecution against each accused is the restraining of the victim”.  He added that the prosecution case was that the victim had died from asphyxiation caused by being restrained in the various ways which were set out in the particulars. 

[82]  At that same point in the summing up, his Honour referred to the respective cases of the defendants.  He said that the case of the appellant Johnston was that the relevant act was the restraint of the victim with the octopus strap “and not the general restraint relied on by the prosecution” so that the prosecution had not established that the use of that strap caused the death.  He referred also to that defendant’s argument that the prosecution had not excluded “the possibility that a realistic cause of death was a heart attack brought on by the struggle rather than asphyxiation brought on by the general restraint …”.  The trial judge then added:

“The prosecution response to the latter argument is that even if Mr Dwyer died as a result of a heart attack brought on by the struggle it arose out of the restraining of him which in the circumstances was likely to endanger human life so that Mr Johnston remains guilty of murder.”

As I have discussed, the prosecution had said that the cause of any heart attack would have been not just “the restraining of him” but everything which had happened to him.

[83]  Immediately after that, the trial judge said:

“If you are satisfied that the actions of the accused caused the death of Daniel Dwyer by means of a heart attack, but you were not satisfied that the heart attack occurred after he was restrained in a way that endangered human life, in this case, the attachment of the octopus strap to the neck and legs, then you would convict him of manslaughter.”

[84]  With respect, that sentence was correct in itself, but it may have led to some misunderstanding.  It may have suggested to the jurors that if they were satisfied that the heart attack occurred after he was restrained with the octopus strap, then the relevant act had caused the death.  That was not the case, because in that circumstance there would be two possibilities to be excluded.  One was that of the so-called “independent” heart attack.  Dr Milne had not described this possibility as “extremely unlikely”.  He had given that description to the possibility of the heart attack occurring before the restraint, upon the premise that the victim was alive when the defendants left him.  The second possibility was a heart attack which occurred after the restraint with the octopus strap, but not relevantly caused by it.  In particular, there was the possibility that the stress, both physical and psychological, of the preceding struggle brought on the heart attack.  There was also the possibility that it was caused by any one of the five factors for which Mr Johnston’s counsel had canvassed in his cross-examination of Dr Milne, to which I have referred at [66] above.  The effect of Dr Milne’s evidence was that neither of those two possibilities was purely or little more than a theoretical one.  He described each as unlikely, in the sense that a more probable mechanism of death was asphyxiation.  Of course, a possibility which was consistent with innocence had to be excluded beyond reasonable doubt.

[85]  The trial judge gave directions as to s 7 and s 8.  After discussing those provisions in the abstract, he referred to the prosecution case as to the participation of each defendant.  In the course of explaining the prosecution case in those respects, the trial judge said:

“Mr Dwyer’s death was caused, on the evidence, by multi-factorial asphyxiation related principally to the presence of the octopus strap.  It was possible that he could have suffered a heart attack independently of the treatment he received but not probable that it would have occurred without that treatment. 

If you are satisfied that those things happened, then it is open to you to find that Mr Dwyer’s death was caused by means of an act done by the defendants in carrying out the robbery.

Do you think the act of restraining Mr Dwyer in the manner described was something that was likely to endanger human life?  If you are satisfied beyond reasonable doubt that it was and that each defendant was a party to that conduct, then you may find that the defendants murdered Mr Dwyer.”

At least in the first part of that passage, the trial judge was referring to the prosecution argument.  That explains the absence of a reference to the second of the possibilities which I have just mentioned, which was a heart attack which was not unrelated to what had been done to the victim but which was not caused by the restraint involving the octopus strap. 

[86]  On the following day the summing up continued.  His Honour returned to the subject of the cause of death.  He summarised Dr Milne’s evidence as to the likely cause of death being asphyxia, but added this:

“In that context he said that he could not exclude a heart attack as possibly having happened but said that asphyxia was the underlying cause and that if he had a heart attack it would most likely have arisen from the stress of any altercation or struggle he had before his death.  He expected that any probable explanation for a heart attack would have been that it was secondary to the other events.”

He added:

“In re-examination he was asked whether, if the deceased was humming after he had been attacked, what effect that evidence would have on the possibility that he had a heart attack.  He said that if he were humming he could have had a heart attack beforehand, but he thought that was an unlikely possibility, but one which he could not exclude.  He said that the octopus strap could have caused all the area of bruising on the left side of the neck and adhered to his opinion that the cause of death was multifactorial asphyxia with the prime cause being the octopus strap.  He could not exclude a heart attack out of the blue but thought that it was unlikely.”

[87]  After referring to other matters, his Honour summarised the rival contentions.  In referring to the prosecutor’s address, his Honour said that:

“He then relied upon Dr Milne’s evidence to argue that it was unlikely that a heart attack had occurred but that if it did occur after they left, it was because of the stress that had happened to the deceased.  Accordingly, he submitted to you that the causation of the deceased’s death because of the actions of the defendants had been proved.”

Again this illustrated the flaw in the prosecutor’s alternative argument, which was that he did not seek to prove that it was the relevant act which had caused the death. 

[88]  In summarising the argument for the defendant Lui, his Honour referred to Dr Milne’s evidence that “Mr Dwyer could have died at any time and that the struggle he engaged in could have precipitated a heart attack”.  He also referred to Mr Lui’s argument that he had not been involved at all in the application of the octopus strap. 

[89]  In summarising the argument for the defendant Johnston, his Honour correctly reminded the jury “that the prosecution needed to prove that the restraint caused the death beyond reasonable doubt for his client to be guilty of murder” and that if Mr Johnston “simply caused the death, but not by those acts, or if you are left in a reasonable doubt about that, then the verdict should be one of unlawful killing or manslaughter only”. 

[90]  A little later, his Honour referred to the argument for Mr Johnston that “the use of the occy strap was the act likely to endanger human life rather than the overall restraining of the deceased relied upon by the prosecution, and that you might find that the use of the occy strap did not cause the deceased’s death because the prosecution has not excluded the possibility that he died from a heart attack not caused by the occy strap, and that the restraining was not itself likely to endanger human life”. 

[91]  Then the trial judge provided a further summary of each party’s case, in the course which his Honour repeated something which he had said on the previous day, as set out above at [82] and [83].

[92]  At the very end of his summing up, his Honour said that there were several questions for the jury to consider.  As to causation, he described those questions in these terms:

“What caused his death, multifactorial asphyxia, the octopus strap, or heart attack brought on by the restraining of him?”

With respect, that may have induced the jury to determine the most likely cause of death, rather than determining whether any cause of death, which was a reasonable possibility, could be excluded.

The heart attack possibility

[93]  In this appeal, it was submitted for the respondent that “the heart attack hypothesis was always a red herring in the context of this trial”.[40]  It was said that in a homicide case, it is insufficient to raise a reasonable doubt for the defence to point to some “pre-existing frailty [that] may have caused death independent of anything done by the accused”.  The submission went further, with the contention that if arguments by defendants of the present kind were to be accepted, it would be “practically impossible” to convict anyone of the homicide of a person with a pre-existing frailty.

[94]  It is preferable to discuss the evidence in this case, rather than to generalise about threats to the operation of the criminal law.  In the case of the deceased, there was a severe and immediately life threatening heart condition, coupled with an increase in this risk of a heart attack from the physical and psychological stress of those events.  Therefore, the possibility of a heart attack, especially one which was not “independent”, was neither “very remote” nor “extremely unlikely”.  It was a reasonable possibility, to use the words of McPherson J in R v Summers in the passage upon which counsel for the respondent relied.[41] 

[95]  The jury did not have to be persuaded that the dangerous act was the cause of death.  They had to be persuaded that it was a significant[42] or substantial[43] cause of death.  If the jury was able to and did exclude a heart attack as the mechanism of death, the question of causation would not have been difficult:  clearly the death would have been caused by the relevant act.  But if a heart attack could not be excluded as a possibility, then the causative effect of that act was far from clear.

Unreasonable verdicts

[96]  Upon Dr Milne’s evidence (there being no other relevant evidence on the question), the possibility that the mechanism of death was a heart attack could not have been excluded.  He said that death by asphyxiation was more likely.  But in the context of the whole of his evidence, that should have been understood as an assessment that asphyxiation was the more probable mechanism of death.

[97]  The next question was whether the jury could have excluded the possibility of a heart attack which was not caused (in the required sense) by the relevant act.  There could have been many contributing factors to such a heart attack.  The inherent danger from the application of the octopus strap was in its potential for causing death by asphyxiation.  Dr Milne did not single it out as having a particular danger for bringing on a heart attack.  The jury had to be satisfied that in the context of many other factors, the effect of this act was sufficient to attribute legal responsibility for it in a criminal matter.[44]  It is unlikely that the jury did consider this question, having regard to the course of the trial as I have described.  In particular, the jury was told by the prosecutor that causation would be proved if there was a heart attack and it had been caused by everything which had been done to the deceased.  However, the way in which this issue should have been presented to the jury, required an assessment of the contribution or otherwise made by the application of the octopus strap, in the context of the other restraints which had already been applied. 

[98]  In my conclusion, it was not open to the jury to conclude that the relevant act was a cause of death.  The jury could not reasonably have excluded the possibility of a heart attack, caused by the stress of the attack and by the victim being otherwise restrained.  Dr Milne did not identify the octopus strap as a substantial cause of a heart attack (if it occurred).  The act of applying the strap was inherently dangerous to life because, if the victim was left unattended, it would have eventually caused death by asphyxiation.  The strap could have been a significant contribution to a heart attack.  But that was not proved beyond a reasonable doubt.  It follows that each of the appellants should not have been convicted of murder. 

Alternative ground of appeal

[99]  Each appellant also argued that the prosecution should not have been permitted to raise the alternative argument that there was a murder if the death was by a heart attack.  It was submitted that this denied them a fair trial, because their conduct of the case throughout the entirety of the evidence was in response to the allegation that the death was by asphyxiation.  It was submitted that the course of the evidence might have been different had this alternative case been flagged from the outset. 

100. I am in general agreement with Muir JA on that question.  This was undoubtedly a very substantial and late amendment to the prosecution case.  But as it happened, the only relevant evidence on the question was that of Dr Milne and counsel for the defendant Johnston conducted a cross-examination which demonstrated his anticipation of what would ultimately be part of the prosecution case.  Counsel for the defendant Lui did not cross-examine Dr Milne to the same extent; but his client had the benefit of the evidence which had already been given. 

Orders

101. Counsel for the appellant Johnston had told the jury that they should convict him of manslaughter.  His counsel had asked for a conviction of manslaughter to be substituted in his case. 

102. The appellant Lui has not made the same concession.  In his case, it was conceded that he was a party to a common intention to prosecute an unlawful purpose, in the course of which the victim would be assaulted and physically restrained.  In particular, it was conceded on this appeal that the treatment of the victim in a life threatening manner was a probable consequence of the plan.  But for Mr Lui it was submitted that there was also a reasonable possibility of an “independent” heart attack as the cause of death.  In my view, it was open to the jury to exclude that possibility.  However, the concern is that they did so upon a misunderstanding of the standard of proof as to this particular issue. 

103. Although the jury was given the usual and general directions about the standard of proof, at some points in the summing up an indication may have been given that this issue should be approached by considering what was more probable.  I refer here to the passages which I have set out at [86] and also to the passage at the very end of the summing up which I have set out at [92]. 

104. Accordingly, I would not substitute a verdict of manslaughter in either of these cases.  If the appellant Johnston maintains his present instructions, then he would plead guilty to a charge of manslaughter and receive whatever should be the benefit of his admission of that offence during this trial.

105. In each case then, I would quash the conviction of murder and substitute an acquittal upon that charge.  I would order a retrial of each appellant upon the charge of manslaughter.