R v Emelio[2012] QCA 111

[1] MARGARET McMURDO P:  I agree with Dalton J's reasons for dismissing the appeal against conviction.  I also agree with her Honour's reasons for granting leave to appeal against sentence and allowing the appeal by setting aside the sentence of five years imprisonment imposed for assault occasioning bodily harm whilst armed and in company and substituting a sentence of 18 months imprisonment.  The options for sentencing this 17 year old first offender for this concerning and serious assault were limited by his six year sentence for manslaughter.  For that reason, the sentence imposed for the assault may be of limited use as a comparable sentence for other youthful first offenders convicted of a similar assault.

[2] I agree with the orders proposed by Dalton J.

[3] MUIR JA:  I agree with the reasons of Dalton J and with the orders she proposes.

[4] DALTON J:  The appellant was convicted after a 31 day trial of one count of manslaughter (as an alternative verdict to murder) and one count of assault occasioning bodily harm whilst armed in company.  He appeals the manslaughter conviction and the sentence on the assault charge.

[5] The appellant was 17 years old at the time of the offending.  In the early hours of the morning he was driving home with a group of friends of similar age.  One of that group had a brother aged 15 who was also making his way home, on foot, with a group of schoolboys aged about 15.  The younger boys walked through a park on Ewing Road, Woodridge.  There was a group in the park who had been drinking.  Two or three members of this group approached the group of 15 year-old schoolboys and subjected them to a verbal and physical assault.  The younger boys contacted the older boys and asked the older boys to come down to the park to seek revenge on the assailants.  The group of older boys, including the appellant, arrived at the park to assist.  The appellant carried a spanner in his left hand and a fence paling in his right hand.  Another 17 year old boy carried a hammer, and others carried fence palings.  In total there were nine schoolboys.  The two or three men, who had attacked the group of 15 year olds earlier, ran away soon after the group of nine approached.  The group of schoolboys then attacked three men who remained near a picnic shelter in the park.

[6] The group attacked a man named Bond.  The group then attacked a man named Willis.  The third man attacked was Mr Saunders, who later died from his injuries.  After the assault on Mr Saunders, three of the schoolboys, including the appellant, went back to the car they had arrived in.  They remained there.  The other schoolboys pursued those men who had initially left the area when the schoolboys approached.  They were unsuccessful in finding them.  They returned to the picnic shelter and Mr Willis was assaulted a second time.  Then all the boys left the park.

[7] The appellant was convicted of the assault on Mr Bond, and on his own admission he participated in that assault.  The Crown entered a nolle prosequi on the charge of assaulting Mr Willis on the occasion of the first assault.  The appellant was convicted of the manslaughter of Mr Saunders.  The only rational basis for that conviction was pursuant to s 8 of the Criminal Code 1899 (Qld).  The appellant was acquitted of the assault on Mr Willis on the second occasion on which he was assaulted.  The Crown case against the appellant in relation to the second assault on Mr Willis was based on s 8.

[8] Section 8 of the Criminal Code provides:

“8Offences committed in prosecution of common purpose

When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”

[9] The appellant gave a long record of interview to police after the night in question.  He admitted participating in the assault on Mr Bond but said that after that, he tried to encourage the rest of the schoolboy group to stop assaulting the remaining men and leave the park.  The learned trial judge gave a direction leaving it to the jury to decide as a matter of fact whether or not, after the assault on Mr Bond, the appellant withdrew so that there was no longer a common intention to prosecute an unlawful purpose (involving the appellant) within the meaning of s 8 of the Criminal Code.  The jury must have accepted that, by the time of the second assault on Mr Willis, the appellant had so withdrawn.  The point raised by the appellant is that the only evidence as to his withdrawal from the common purpose was in his record of interview and, on that version of events, withdrawal from the common purpose occurred prior to both the assault on Mr Saunders and the second assault on Mr Willis.  It was argued therefore that the verdict of manslaughter was irreconcilably inconsistent with the acquittal in relation to the second assault on Mr Willis: if the jury accepted that the appellant withdrew, that withdrawal was before the assault on Mr Saunders, or at least before the occurrence of the act which caused Mr Saunders’ death.

[10] The timing of the events which took place after the group of nine schoolboys arrived at the park is crucial to assessing the strength of the appellant’s argument.  The group of nine boys walked from the street into the park.  As they approached the men in the park, stubbies were thrown at them.  Then some of the men in the park ran away.  The appellant told police that the man who was identified as Mr Bond ran straight up to  [A].  [A] punched him.  The appellant hit Mr Bond, first with the fence paling (AB 2660, l 25), and then twice with his fist (AB 2652 ll 30‑50).  He hurt his fist doing so.  He then moved to the back of the fray and the boys who were behind him went into the fray (AB 2652, l 40).  After the appellant punched Mr Bond and withdrew to the back of the fray, he thought others punched Mr Bond, although he was not sure (AB 2666, l 25 and AB 2267,l 1).

[11] The appellant said in his record of interview that after the other boys came into the fray, they “just went and do their own things.  Like I was just basically by myself and I ran here, and I was like hurry up let’s go, let’s go, let’s go” (AB 2661, ll 10-20).  He said, “those guys … spread out and it was just me and [B] and then [B] spread out and it was just me and then I ran here, and I told ’em to hurry up, let’s go, let’s go” (AB 2666, ll 30-35).

[12] The assault on Mr Bond and the first assault on Mr Willis occurred in front of a picnic shelter, around the letters marked “C” and “E” on a photograph which is at AB 2691.  The appellant having withdrawn to the back of this fray, then moved to the area marked with an “F” on that photograph.  This was where Mr Saunders was found unconscious by paramedics.  When the appellant moved to the area marked “F”, he saw [C], [D], [A] and [B] assaulting a man on the ground, who is accepted to be Mr Saunders.  They were “fighting” him, “doing stuff on him” and “punching” him (AB 2669, l 30 – AB 2671, l 10).  The appellant says he did not really know what they were doing, as he was looking out for the other boys (AB 2671, l 20).  He says, “I was basically by myself trying to tell all the boys just come back, let’s go oh, let’s go home” (AB 2671, l 35).

[13] The appellant was four or five metres away from the group who were attacking Mr Saunders (AB 2670, l 10).  He was pretty sure that [B] was part of the group fighting Mr Saunders (AB 2669, ll 40‑50 and AB 2671, ll 10-20).  The boys did not listen to his advice to hurry up and leave.  He said: “And then I walked up here and tried tell the boys to come, let’s go.  But then these guys finish and just all ran, just yeah, they all ran to chase the other fellows.  I said let’s go home, hurry up let’s go but no one listened” (AB 2672, ll 10-20).  Further, “I told ’em to all come back but they didn’t listen so me and [B] and [E] went to the car” (AB 2673, l 40).

[14] There was some limited CCTV footage which showed events generally consistent with what the appellant told police.  It is helpful in establishing the timing of some events.  At 1:01.07 am a person is first seen on a pathway on his back.  It is accepted that this was Mr Bond after he was assaulted.  At 1:01.51 am, someone, and it was accepted this was [B], throws a cask of wine at Mr Bond.  At 1:02.50 am the appellant, [B] and [E] are shown walking away and it is accepted that they are walking back towards the car.  At 1:04.20 am, Mr Willis is shown checking on Mr Bond, who is still lying on the ground.  At 1:07.39 am activity recommences in the vicinity of the picnic shelter and it is accepted that around this time the second assault on Mr Willis takes place.  The attack on Mr Saunders is not caught on the CCTV footage.

[15] There is not a great deal of authority on the topic of what an accused must show if he contends that a common purpose pursuant to s 8 of the Criminal Code has ended because he has withdrawn from that purpose.  Withdrawal is not a defence as such under the Code.[1]In my view the question of what it is necessary to show when s 8 of the Code is relied upon by the Crown ought to be viewed as distinct from what an accused must show when s 7 of the Criminal Code is relied upon by the Crown.[2]  The relevance of withdrawal to a case made pursuant to s 8 of the Code is to show that the common purpose has come to an end before the commission of an offence.  In R v Saylor[3] Philp J considered a case not factually dissimilar to the present.  Saylor contended that he had withdrawn from a joint assault prior to its ending.  Philp J said:

“In my view the law applicable to the instant case is that Saylor was guilty of the offence charged unless there was evidence fit to be considered by a jury that before the final kicking by Mam, Saylor had not only withdrawn from the prosecution of their common purpose but had also communicated that fact to Mam in such circumstances that any subsequent criminal act by Mam was Mam’s separate act.”[4]

[16] Philp J relied upon the Canadian case of R v Whitehouse.[5]He cited from that case to this effect:

“… before a prior abandonment of the common enterprise may be found by a jury there must be, in my view, in the absence of exceptional circumstances, something more than a mere mental change of intention and physical change of place by those associates who wish to dissociate themselves from the consequences attendant upon their willing assistance up to the moment of the actual commission of that crime. … What is ‘timely communication’ must be determined by the facts of each case but where practicable and reasonable it ought to be such communication, verbal or otherwise, that will serve unequivocal notice upon the other party to the common unlawful cause that if he proceeds upon it he does so without the further aid and assistance of those who withdraw.  The unlawful purpose of him who continues alone is then his own and not one in common with those who are no longer parties to it nor liable to its full and final consequences.”[6]

[17] The Court of Criminal Appeal considered this question in R v Menniti.[7]Connolly J thought that Philp J’s statement extracted above was a correct statement of the law,[8] as did Thomas J, who said:

“Cases of participation in a common purpose will normally be readily susceptible to withdrawal.  This is because the destruction (by countermand or otherwise) of the common purpose may mean that the eventual crime was not committed in the prosecution of that common purpose, and hence criminal liability on the part of the accessory may be avoided.”[9]

[18] The appellant accepts that the jury were properly instructed as to withdrawal.  In my view it was open to the jury to find that the appellant had not effectively withdrawn from the common enterprise before the assault on Mr Saunders which caused his death.  On the appellant’s version of events, the assault on Mr Saunders occurred relatively quickly, and relatively closely in time to the assault on Mr Bond and the first assault on Mr Willis.  From the CCTV footage it can be seen that it is some minutes after the appellant leaves the picnic shelter area that the second assault on Mr Willis occurs.  On the appellant’s version, the physical withdrawal to the car happens after the assault on Mr Saunders, as: (a)the appellant puts [B] as having participated in the assault on Mr Saunders; (b)it appears from the appellant’s description that the assault on Mr Saunders finished; then all the assailants but [B] ran off, then the appellant, [B] and [E] ran to the car.  It seems from the appellant’s version of events that he did not call upon his fellows to desist and leave until after the assault on Mr Saunders had begun.  There was a real question on the evidence as to whether or not he properly communicated his withdrawal before the assault on Mr Saunders finished.  It was open to the jury to find that the appellant had not withdrawn unequivocally, or alternatively had not been able to unequivocally communicate that withdrawal, from the unlawful enterprise, to those attacking Mr Saunders, before the attack on Mr Saunders finished, or before the fatal blow, or blows, were delivered to Mr Saunders.

[19] On the other hand, there was clear evidence, supported by the CCTV footage that, before the second attack on Mr Willis, the appellant, together with [B] and [E], had withdrawn to the car.  This was a much more distinct action than his earlier making entreaties to the others to desist and leave.  Further, it was open to the jury to find that only at this stage had his decision to withdraw been effectively communicated, having regard to [B] and [E] deciding to retreat, apparently at his urging.  In these circumstances, there is no inconsistency between the verdicts of guilty on the manslaughter charge in relation to Mr Saunders and the not guilty verdict on the second assault charge on Mr Willis.  In fact, having regard to the timing of all the relevant events, there is a logical and nuanced train of reasoning which would explain both verdicts.

[20] In my view the appeal against conviction ought to be dismissed.

Sentence

[21] The primary judge sentenced the appellant to five years’ imprisonment in relation to the assault on Mr Bond.  The charge was assault occasioning bodily harm whilst armed and in company.  The maximum penalty for this offence is 10 years’ imprisonment.  As noted above, the appellant admitted hitting Mr Bond once with a fence paling and punching him twice in the face.  The punches were sufficient to hurt the appellant’s hand and the appellant expressed some surprise in the record of interview that Mr Bond remained standing after the second of the punches.  That is, it is to be inferred that the punches were powerful.  Having delivered these three blows, the appellant withdrew from attacking Mr Bond and others took over.  Eventually Mr Bond was felled and remained lying on a pathway motionless for some time.

[22] It is right in sentencing the appellant to have regard to the fact that he was armed and was in company with others who were armed.  But it is also right to recognise that the injury to Mr Bond was not caused by the appellant alone, but by the appellant as well as those who attacked Mr Bond after him.

[23] The appellant was 17 years old at the time of the offences.  He had no criminal convictions.  At the time of the trial, some two years and five months later, the appellant had not re-offended.  He voluntarily co-operated in providing a very full record of interview with police two days after the offending.  The Crown says that his co-operation with police was marked by initial hesitancy in providing details, particularly of the assault on Mr Saunders.  It is true that more details emerged as the interview progressed, but I think it is right to regard the appellant as having co‑operated very fully with police as to his involvement.  He did initially refuse to name his co-offenders, but fairly early on in the interview said that he felt bad about that refusal and did name them.

[24] It is true that the appellant ran the matter to trial, rather than enter a plea to any of the charges.  Perhaps that was understandable to some extent, given that in relation to Mr Saunders the charge against him was murder, and that in relation to Mr Willis, events have shown that there was little evidence to connect him with the offending.

[25] The appellant went armed into the park, intent on revenge by physical violence.  He carried a spanner in his left hand and a fence paling in his right.  He used the fence paling once and it fell from his hand when he attempted to use it a second time.  There is no evidence that he used the spanner.  The attack against the three men (Mr Bond, Mr Willis and Mr Saunders) was an attack on men who were older than the group of schoolboys and less physically able.  The three men were also outnumbered by the group of schoolboys.  In my opinion a head sentence of 18 months, to serve six months was appropriate on the assault charge, having regard to the appellant’s youth and co-operation.

[26] In summary, I would dismiss the appeal against conviction; grant leave to appeal against sentence, and reduce the sentence on the charge of assault occasioning bodily harm whilst armed and in company to one of 18 months imprisonment, that sentence to be concurrent with the sentence for manslaughter.