R v Roberts[2012] QCA 82

SUPREME COURT OF QUEENSLAND

CHIEF JUSTICE:

Introduction

1. The appellants, together with Patrick Doyle, were tried for the murder of Kevin Brack at premises in Fortitude Valley on 17 February 2009.  After a three week trial, each of the appellants was convicted of murder, and Doyle was convicted of being an accessory after the fact to the offence of murder.

2. The appellant Roberts appeals on grounds that the trial Judge erred in not ordering that he be tried separately; that the verdict of guilty was unreasonable; and that the learned Judge failed to direct the jury properly in relation to evidence of consciousness of guilt.

3. The appellant Pearce appeals on grounds that a miscarriage of justice occurred because the Judge did not direct the jury that it must be satisfied “that the acts allegedly done (by Pearce) to aid the principal offender (Roberts) were done with the intention of assisting the principal offender”; and that the verdict of guilty was unreasonable.

Prosecution cases

4. The appellants admitted that the deceased died on 17 February 2009 at Flikkerz Foto and Dance Studio. On the prosecution evidence, Roberts caused his death by a sustained assault upon him, which involved punching and stabbing and possibly strangling with a towel. 

5. The prosecution case against Pearce relied on section 7(1)(c) of the Criminal Code:  that Pearce aided Roberts by his presence at the time of the commission of the offence; by then preventing the deceased from leaving; and by assaulting the deceased, and fetching and providing a knife at Roberts’ request, which Roberts then used to stab the deceased.

6. The case against Doyle, in relation to alleged murder, was that he aided Roberts by his voluntary and deliberate presence. Doyle was acquitted of murder.

7. Claudine Davis, who worked at the club, was a major witness for the prosecution. On her evidence, Roberts was a security officer at the door, and Pearce, who lived on the premises, was a cleaner. She witnessed Roberts accusing the deceased of “ripping him off” in a drugs transaction. There was evidence from other witnesses as well as from Ms Davis of drug dealing including the supply of amphetamines of allegedly poor quality by the deceased to Roberts.

8. Ms Davis said that in the morning of 17 February she witnessed the assault which preceded the death: Roberts punched the deceased around the face and stomach several times; Pearce held the deceased still; the appellants and Doyle wrestled with the deceased to prevent him from leaving; Roberts sat on top of the deceased on the floor and called for a knife; Pearce fetched a knife and gave it to Roberts, who stabbed the deceased in the shoulder as the deceased lay on his back on the floor.

9. Ms Davis then ran out to the back of the premises. Five to ten minutes later, Roberts went to her and told her that the deceased was dead (“idiot died”, “the bastard’s dead”).

10. The appellants later took a wheelie bin to the room where the deceased’s body lay, and yet later in the day carried it back downstairs. Ms Davis said that she and Pearce cleaned up some blood stains from the floor.

11. Under cross-examination, Ms Davis said that during the assault, one of the appellants had asked for a towel, and she threw it their way, and the towel may have been used on the deceased.

12. Ms Davis had seen Roberts stab a man in the shoulder with the same knife the previous night. Later she saw Pearce taunting that man with the knife, sticking the man’s finger into the wound, and telling him not to report the incident as he (Pearce) did not want trouble coming to the establishment. Ms Davis said that it was that same knife which Pearce fetched at Roberts’ request the following morning, and which Roberts used to stab the deceased.

13. Five months later, at a house at Warwick, police officers located the mobile phones of the deceased and Roberts.  Roberts’ phone contained the deceased’s SIM card.  The appellants admitted that Roberts’ SIM card was first used in the deceased’s phone on 17 February 2009 at 12.18 pm, and that the deceased’s SIM card was used in Roberts’ phone on 10 March 2009.

14. Interviewed by police officers on 16 July 2009 (five months after the offence), Roberts initially denied knowledge of any assault upon the deceased, although he admitted drug dealings with him. He admitted that his drug supplier had asked him to “teach (the deceased) a lesson”, and that he had subsequently punched the deceased hard once in the face. Pearce then took over, he said, brutally assaulting the deceased, whereupon Roberts left, returning after 20 minutes to find the deceased apparently dead. Roberts admitted helping wrap the deceased’s body in a sheet.  Roberts denied knowledge of any stabbing and denied having taken the deceased’s phone. 

15. Interviewed by police officers the following day (17 July 2009), Pearce said that Roberts seriously assaulted the deceased. (Pearce also observed that Roberts had a propensity for sudden violence.) Pearce said that he told Roberts to stop, because he (Pearce) did not want the deceased leaving in a state of disarray such as may attract adverse attention to the premises (they were subject to CCTV surveillance). Roberts flew at the deceased with a knife. The deceased tried to decamp, whereupon Pearce kicked him onto a lounge. When the deceased again tried to leave, Pearce tried to knock him out by hitting him in the face, to “keep him there”. Roberts then “lay into” the deceased with his hands and a towel, choking and strangling the deceased. Pearce said that he believed Roberts and Doyle were going to kill the deceased: Pearce said that he held that belief from the point where Roberts took possession of the knife.

16. (The feature that Roberts and Pearce blamed each other militated in favour of a joint trial, an issue subsequently addressed.)

17. In his interview with the police, Doyle said that Roberts strangled the deceased around the neck with the towel. He also spoke of Roberts’ propensity for violence, and expressed his view that Roberts intended to kill the deceased.

18. It remains to mention admissions by Pearce and Doyle, but not by Roberts, of what Denis Calnan, who could not be called as a witness, had said to the police. Calnan had referred to attending the club at about midday on 17 February, when he saw Roberts, Pearce and others present, and after about an hour he asked them to leave. Pearce left after Roberts and some of the others present had left. (This was said to be inconsistent with some statements by Roberts in his interview with the police.)

Appeal by Roberts

First ground:  separate trial

19. Counsel for Roberts first applied on the seventh day of the trial for an order that Roberts be tried separately from the others. That application was prompted by Ms Davis’s evidence about passing a towel to Roberts or Pearce.  That evidence was elicited through cross-examination by Counsel for the co-accused Pearce:  the Prosecutor had not opened it or led it in chief.

20. In their police interviews, not admissible against Roberts, Pearce and Doyle said that Roberts strangled the deceased with a towel.

21. The basis of the application that Roberts be tried separately from the others was that the evidence from Ms Davis about the towel was said to render it unreasonable to expect the jury to adhere to directions to ignore those contentions by Pearce and Doyle when considering the case against Roberts.

22. The learned Judge refused the application. Her Honour said that the evidence of Ms Davis about providing the towel, “for what it is worth”, did not diminish the likely effectiveness of the warning she would be giving as to the exclusion of the interview of the co-accused when considering the case against Roberts.

23. The admission subsequently made on behalf of Pearce and Doyle about the statement of Denis Calnan led to Counsel for Roberts renewing his application for a separate trial.  Her Honour also refused that renewed application.

24. Counsel for Roberts first submitted on appeal, in his written outline, that the evidence from Ms Davis and Roberts’s admissions “did not establish an assault of a nature likely to cause grievous bodily harm, let alone death, or describe an assault necessarily carrying with an intent … to cause death or grievous bodily harm”.  That was advanced as the foundation for a following contention that the risk of impermissible resort to the records of interview of the co-accused was simply too great.  But Ms Davis’s account was of a substantial brutal assault involving stabbing with the knife.  Her evidence, if accepted, established an assault upon the deceased of grave proportion.  There was criticism of the quality of Ms Davis’s evidence, based for example on her drug usage, but the jury was alive to that, and the assessment of its quality was quintessentially for them.

25. When Her Honour spoke of Ms Davis’s evidence about the towel “for what it is worth”, she presumably had in mind its limited extent (that is, “throwing” a towel into the affray, which “may” have been used on the deceased), and that the Prosecutor had not thought it significant enough to be opened or advanced as part of the prosecution case. Also, as pointed out for the respondent before us, the evidence would not have taken the defence by surprise, because what Ms Davis could say about the towel was apparent prior to the commencement of the trial, and it was defence counsel who chose to elicit it at the trial.

26. Especially acknowledging that limitation, in the quality and possible significance of Ms Davis’s evidence about the towel, it is improbable that the jury would have relied on that evidence, contrary to the learned Judge’s admonitions, by using against Roberts what Pearce and Doyle told the police about the use of the towel.

27. I say “especially acknowledging” in recognition of the more fundamental position: there is no reason to doubt that the jury would have adhered to the Judge’s repeated directions to use, in relation to an accused, only the evidence admissible against him, and in this situation, in assessing the case against Roberts, to exclude the contentions of the co-accused made during the police interviews.

28. As to the renewed application following the admissions formally made in relation to the statement of Mr Calnan, the point just made again applies, and even more strongly, because Mr Calnan did not implicate anybody, the matter of concern resting only in inconsistency in areas of detail between what he said and what Roberts said. That could not possibly give rise to the suggested miscarriage of justice.

29. At the hearing of the appeal, Counsel particularly relied on statements by Pearce and Doyle to the police about Roberts’s propensity for violence and as to the strangling with the towel, which if considered in the case against Roberts would obviously be highly prejudicial to his position. But the trial Judge’s directions covered their exclusion, and significantly, no particular direction was sought from the Judge in relation to those matters. There is, in the end, no reasonable basis for a fear that the jury would have departed from the Judge’s orthodox directions, and have used that material to the prejudice of Roberts.

30. It is unnecessary to spend time restating well established legal principle in relation to joint and separate trials, of which Her Honour was plainly cognizant, beyond affirming the strong desirability of trying joint offences together (Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30; R v Davidson [2000] QCA 39, para 12; R v Roughan & Jones [2007] QCA 443, para 49).

Second ground:  unreasonable verdict

31. The contention that the verdict of guilty of murder is unreasonable was based on the view that the “direct evidence admissible against Roberts” established an assault of only limited gravity. Giving proper play to the evidence of Ms Davis, of a substantial brutal attack involving the use of the knife, that contention is unsustainable, as covered above. 

32. A broad review of the evidence shows that a jury properly instructed could reasonably have concluded beyond reasonable doubt that Roberts was guilty of murder.

33. In summary, that evidence disclosed antipathy on the part of Roberts towards the deceased; that Roberts played the major role in the assault upon the deceased, on the evidence of Ms Davis; that Roberts’s aggression extended to his calling for and using a knife; and subsequent inculpatory circumstances – Roberts’s acknowledging the death to Ms Davis, Roberts’s seeking to cast responsibility on to Pearce, Roberts’s admitted participation in wrapping the corpse, and the circumstance that Roberts stole the deceased’s phone.

34. The verdict of guilty was amply justified.

Third ground:  direction as to consciousness of guilt

35. Counsel for Roberts submitted that in directing the jury as to any significance in Roberts’s concealing the corpse and cleaning up the scene, the Judge was unduly general. Such a direction must caution the jury as to the need to relate the acknowledgement of guilt to the offence in question, and none other. Mr Allen, for Roberts, submitted specific reference should have been made to the alternative count of manslaughter.

36. There is no need to add to the jurisprudence relevantly reflected by R v Mitchell [2008] 2 Qd R 142; [2007] QCA 267.

37. The learned Judge emphasized that Roberts must have acted because motivated only by “guilt of the offence charged, not some other misconduct”, meaning referably to murder, and not anything else, such as manslaughter.

38. Early in the summing up, Her Honour informed the jury that an accused person may tell lies for reasons not indicative of guilt. When later dealing with the drawing of inferences of guilt from the conduct of Roberts, she referred back to that earlier passage, and then cautioned the jury that they must find Roberts “so acted because he knew he was guilty of the offence charged, not for any other reason”. Her Honour then said that to advance the prosecution case, the conduct must have been “motivated by a consciousness of guilt on Mr Roberts’ part, but also that what was in his mind was guilt of the offence charged, not some other misconduct.”

39. The essence of Mitchell emerges from this passage in the reasons of Williams JA (para 31):

“…where, as here, murder is the offence charged and manslaughter is available as an alternative verdict, it is incumbent upon the trial Judge, if an Edwards direction is given, to indicate the element of the offence that is said to be admitted by the telling of the lie in question.  If that element is merely the implication of the accused in the killing then the jury should be instructed that the admission is so limited.  If the admission is said to establish the element of intent then the jury should be so instructed and they should be warned that they ought not simply infer from the fact that the accused was implicated in the killing that he had the requisite intention.”

40. In this case, the jury was instructed that unless they were satisfied that the only explanation for the conduct of Roberts was his realization that he was guilty of murder, they could not rely on that conduct adversely to Roberts. No re-direction was sought. The Judge thereby identified the elements of the offence said to be admitted by the conduct, that is, killing with the intent to kill or do grievous bodily harm, as previously explained in the summing up. The jury could rely on that conduct only if satisfied it was motivated by a realization of guilt of murder.

41. Further direction was considered necessary in Mitchell (“given the particular circumstances of this case”, per Williams JA, para 34) because the directions which were given elided the consciousness of guilt of the offence charged, which was murder, and unlawful killing, manslaughter.  The directions given did not make it clear that the lies in question there could be used to support a conviction for murder only if they betrayed a realization of guilt of murder.  The confusion arose because the directions referred to lies told because the truth “would implicate the accused in the killing…implicate the accused in the death…and the assaults…implicate him in the killing and the assaults”.  There was risk, therefore, that the jury might have used the lies to support a conviction for murder even though they reflected no more than a consciousness of guilt in relation to manslaughter…or assault.

42. In this case, as I have said, the Judge very plainly limited the jury’s recourse to the conduct to a situation where they were satisfied that it was motivated by consciousness of guilt of murder: “not some other misconduct”, “not for any other reason”.

43. In my view that satisfied the requirement as expressed in Mitchell by Keane JA (para 48), where His Honour said that:

“it is necessary for a trial judge to ensure that the jury clearly understand that they may use evidence of a lie by an accused as an indication of a consciousness of guilt of murder only if they are satisfied that the lie was not told out of the consciousness of guilt of some lesser offence, such as manslaughter, or, indeed, assaults occasioning bodily harm.”

44. The learned Judge’s direction was sufficiently clear. It was not necessary for Her Honour to go on to make specific reference to manslaughter or assault occasioning bodily harm: her directions were accurate, sufficient and above all clear. It is also significant, as I have suggested, that no re-direction on this aspect was sought.

45. Roberts’s appeal against conviction should be dismissed.

Appeal by Pearce

First ground:  aiding direction

46. The complaint is that the learned Judge did not direct the jury that they must be satisfied that in what he did, Pearce “intended” thereby to assist Roberts to kill the deceased.

47. The Judge told the jury at least twice that acts in aid must have been intentionally directed to the commission of the principal offence, and Mr Copley SC, for Pearce, accepted the accuracy of those formulations. Then later, the Judge said that Pearce must have done something “to” aid Roberts, which was criticized for the absence of further explanation, but plainly in context meant something intentionally done to further what Roberts had in mind, allowing especially for the earlier expressed, comprehensive statements of the requirements. The Judge added that Pearce, in assisting Roberts, must have known that Roberts intended to kill the deceased or do him grievous bodily harm.

48. The Judge recapitulated the requirements for aiding a further time, when giving a re-direction.

49. Read as a whole, the summing-up adequately and comprehensively covered the necessary direction on aiding.

50. There was also criticism of the Judge’s having possibly left the case in relation to Pearce’s aiding on the basis of mere presence, without a sufficiently robust direction about that, by contrast with the position taken in relation to Doyle. Unlike the case against Pearce, however, Doyle’s potential liability rested in presence and no more.

51. It is inconceivable that the jury would have found Pearce liable on the basis of mere presence. There was no sufficient reason why the jury, finding Pearce present, would have gone on to exclude evidence from Ms Davis of his active participation – assaulting the deceased, fetching the knife, giving it to Roberts, restraining the deceased etc. (Mr Copley SC raised the quality of Ms Davis’s evidence about the knife, but that was very much a jury question.) This position is reinforced by the content of Pearce’s interview by the police, where he acknowledged his broader participation.

Second ground:  reasonableness

52. The contention that the verdict of guilty is unreasonable turns on three points:

1. the jury could not reasonably have accepted Ms Davis’s evidence that Pearce obtained and provided the knife to Roberts;

2. the evidence of Pearce assisting the deceased could not establish murder, because his purpose was not to aid a murder, but to prevent the deceased’s leaving the premises; and

3. excluding those two matters, the mere presence of Pearce could not have justified a conviction for murder.

53. As to (a), the jury was informed as to the potential weaknesses in the evidence of Ms Davis. Her evidence was not so inherently weak or untenable that a reasonable jury should have rejected it.

54. As to (b), the jury acting reasonably was entitled to assess Pearce’s claims in the context of a situation in which he knew that Roberts was bent on murdering the deceased (as he acknowledged), including by using a knife. In that situation, Pearce chose forcibly to restrain the deceased’s departure from the scene, prior to the accomplishment of Roberts’s mission. The jury was entitled to reject Pearce’s arguably self-serving claim as to his particular purpose at that time.

55. As to (c), since there was reasonable scope for the operation of (a) and (b) it would be unreasonable to conclude that the jury likely relied simply on the presence of Pearce at the scene, and read in a composite way, it is not right to say that the case was left to the jury on anything but the broader basis – ie, that Pearce assaulted the deceased with his fists etc while in the company of Roberts who was also using the knife. Again, the content of Pearce’s police interview bears on this, in the manner mentioned in my treatment of the first ground of appeal.

56. There was ample evidence on which the jury could, acting reasonably, have convicted Pearce.

Orders

57. I would order that each appeal be dismissed.

58. WHITE JA: Ashley Roberts was charged jointly with Patrick Robert Doyle and Blaze Seaton Pearce with murdering Kevin Stanley Brack on 17 February 2009 in Brisbane.  In the alternative Doyle was charged with being an accessory after the fact of the murder of Brack.  They each pleaded not guilty at the commencement of their trial on 30 May 2011.  On Wednesday, 22 June 2011 the jury found Roberts and Pearce guilty of murder and Doyle not guilty of murder but guilty of being an accessory after the fact.

59. Brack, who was known by the name “Orca”, was assaulted by kicking, punching, stabbing and strangulation at the Flikkerz Foto and Dance Studio in Brunswick Street, Fortitude Valley.  All accused admitted that Brack died on 17 February 2009 at those premises.  His body was never found but a reasonable inference could be drawn from the evidence that he was killed at the premises, his body wrapped up and placed in a large plastic wheelie bin and taken away.

60. There was no dispute that Flikkerz Foto and Dance Studio (Flikkerz) was, as described by the prosecutor in his opening, a C-grade strip joint associated with prostitution and drug use, particularly methylamphetamine (speed).

61. The premises comprised, on the first floor of the building (which had other tenancies below) a reception area with a desk and several lounges and off that area six rooms some of which were used as “performance” rooms by the women who worked there. One of these rooms was described as “the front room” and another was a “spare room” near the back stairs which led down to a yard where the bins were located. Male and female toilet cubicles were behind the reception desk.

62. Police did not attend at Flikkerz until 18 June 2009.  Brack’s blood was found in various places within the premises showing evidence of attempts to remove it with a bleaching product.

63. The prosecution case against the three men was that all were present at the time of the killing – Roberts was said to be the principal offender under s 7(1)(a) of the Criminal Code, Pearce and Doyle as aiders under s 7(1)(b) and (c) – Doyle merely by his presence. 

64. The motive for the attack on Brack was said to be the purchase of poor quality drugs (speed) by Roberts from Brack sometime after midnight on 17 February.  Some drug transactions occurred at a house at Coopers Plains, possibly the one in question.  Brack, Roberts and Doyle travelled together from that address to Fortitude Valley to Flikkerz.  They were recorded on CCTV footage entering the premises at 10.22 am on 17 February.  Brack was not recorded as leaving thereafter.

65. None of the accused gave or called evidence. Each of the men engaged in a record of interview with police. Roberts implicated Pearce and Pearce implicated Roberts in the assaults which led to Brack’s death. It was common ground that each of the accused and other witnesses were drug affected on 17 February 2009.

66. Roberts and Pearce have appealed their convictions for murder.

Appeal by Roberts

67. At the commencement of the appeal Roberts was given leave to add a third ground of appeal. The grounds as argued were:

1. Failure to order a separate trial from the co-accused Pearce and Doyle.

2. The verdict of the jury was unreasonable on the admissible evidence against Roberts.

3. The trial judge erred in failing adequately to direct the jury as to the use they might make of evidence of consciousness of guilt (Edwards lies direction).

Evidence against Roberts

68. Roberts worked at Flikkerz as a doorman/security person. Pearce worked as the “unofficial” cleaner of the premises. Doyle frequented the premises from time to time. He had operated a security business in the past.

69. The principal prosecution witness was Claudine Davis who worked at Flikkerz as a stripper. It was essential for the jury to accept her evidence if Roberts (and Pearce) were to be found guilty of murder. She was a woman of 38 at the time of the trial. She knew Brack whom she described as aged about 40, five foot ten to five foot eleven in height and of slim build. Her evidence implicated both Pearce and Roberts in the assault on Brack and placed Doyle in the vicinity. She was challenged about the reliability of her memory due to the ingestion of drugs by Roberts’ counsel and, additionally, by Pearce’s counsel that she was protecting Roberts, her former (briefly) lover.

70. Although Flikkerz usually closed on Monday nights the premises were open on Monday, 16 February and Davis, two other working girls and Roberts and Pearce were there.  Davis described an incident between Roberts and Pearce and an unknown male that evening when Roberts stabbed the man in the shoulder to a depth of a couple of inches.  The knife used was from the kitchen and was approximately 30 centimetres in length from the tip of the blade to the end of the handle.  Davis saw Pearce “stick” his fingers in the wound and heard him taunting the man using the knife.  Pearce was attempting to persuade the man not to make a complaint about the assault.  The man left the premises and played no further part in the events the subject of the trial.

71. Davis gave the following evidence-in-chief.  She saw Roberts purchase drugs from a woman, Sharnee Kerr and her boyfriend, Adrian Jack Skinner, at about 1.00 am on 17 February.^[1]  Later she observed Roberts give money to Brack, who had been at the premises for some hours, to purchase drugs.  Brack left and returned with drugs which Roberts consumed.  Roberts accused Brack “of ripping him off” because of the poor quality of the drugs and demanded his money back.  Brack left the premises, then returned and went up to the reception area.  The only people then there were Davis, Belinda Tippo (known as Bell), Roberts, Pearce and Doyle.  Brack had the money for Roberts.  Davis was sitting in the reception area on a couch, drawing.  She saw Pearce holding Brack while Roberts punched him in the face and stomach several times.  Belinda Tippo tried to break up the assault; Davis told her to leave and she went out the back entrance.

72. Davis described the fight as progressing into a wrestle involving Brack, Roberts, Pearce and Doyle.  She said they were trying to stop Brack from leaving.  As they came closer to where she was sitting Davis jumped up and got out of the way.  She saw Roberts sitting astride Brack who was lying on his back.  She heard Roberts ask for a knife – the knife that was kept in the back kitchen area which had been used by Roberts earlier in the evening.  Pearce got the knife and gave it to Roberts who was still sitting across Brack with his hands on him.  Pearce was standing beside Roberts and Brack.  Doyle was moving in and out of the room.  Davis saw Roberts stab the deceased in the shoulder.  She then ran out onto the back landing and remained there for five to 10 minutes.  Roberts came out and told her that “Orca” was dead – “Idiot died.  The bastard’s dead.  He’s dead.”^[2]

73. Davis attempted to locate Belinda Tippo at Robert’s request without success.  When she returned Brack’s body was not in the reception area.  She was told it was in the front room but she did not investigate.  She joined in cleaning up the blood with Pearce, using a tea towel – “an old rag” – which was there.  Davis had left her jacket on the couch when she jumped out of the way of the fighting.  It had blood on it so she threw it away.  Her bed sheet was missing off her bed.

74. Roberts, Pearce and Doyle were sitting in the reception area talking. Davis left the premises to shower and change at a friend’s place nearby but before she could do so she was called by Jason^[3], “one of the bosses”, and asked to return.  When she did so the three men were still there but “the boss” had left.  Davis left again and returned later in the evening around 8.00 to 9.00 pm for work.  She saw Doyle and Roberts bring a wheelie bin up the back stairs, place it near the reception desk, and eventually take it into the front room and close the door.  Not long after they came out with the wheelie bin and carried it down the back stairs. 

75. In cross-examination by counsel for Doyle and Pearce, Davis gave additional evidence which further implicated Roberts in Brack’s death.  It was not submitted on appeal that this risk was a further basis for granting a separate trial for Roberts.  In cross-examination by counsel for Doyle, Davis agreed that when the physical scuffle commenced Brack started to run away from Roberts.  She recalled that a stool was kicked over but not that it was kicked between Brack and Roberts by Doyle.  She agreed that Roberts called out something like “Grab him” and that Pearce did so.  Brack was then brought back to the reception area and the scuffle broke out again, progressing to the end of the room where she was sitting.  She recalled speaking with Doyle a short distance away from the fighting exchanging sentiments that they wished they were not there.

76. Counsel for Doyle asked Davis:

“And do you also recall at some point someone asking for a towel?”^[4]

Davis responded that she did.  She was asked could she have retrieved the towel from the kitchen and thrown it to Roberts.  Davis answered that she thought she threw it to Pearce but was not sure; she did recall something like that.  Davis was not sure whether the knife was collected from the kitchen before someone had asked for the towel; she thought it was before.

77. Davis did not see Pearce grab Brack and push or trip him onto a couch as was suggested by his counsel in cross-examination but she saw Brack on the ground and he had been grabbed by Pearce.  She agreed that Roberts again began assaulting Brack.  She recalled Pearce yelling out to Roberts, “Don’t do that” or “Stop this” or similar words.  Davis confirmed that Roberts continued to punch Brack in the head and face while he was on his back on the ground. 

78. Davis was adamant that Pearce got the knife when Roberts asked for it.  She said that subsequently she and Bell agreed to get rid of the knife and it was Bell who actually did so.

79. On the issue of the towel Davis was asked by counsel for Pearce the purpose in throwing a towel to somebody.  She answered:

“I’m not sure.  I just – you know, to wipe something up, their hands, something horrid, no doubt.  I don’t know.”^[5]

Davis was cross-examined about her earlier evidence at committal that she did not recall getting anyone a towel that night.  She responded that she did not recall it then but at the “walk-through” she was reminded of it.  She was confident that she was asked for a towel but was not sure where she grabbed it from or to whom she gave it.  Davis said that when she saw Roberts stab Brack in the shoulder with the knife she left.

80. Davis was cross-examined by counsel for Pearce about her evidence at the committal that Brack had been “strangled to death on the floor”.  At the committal she had substituted the word “throttled” and said that she had seen Roberts with his hands around Brack’s neck.  She was asked whether that was the truth and answered:  “Yes, I did see him [Roberts] with his hand on his neck.”^[6]  Davis was reminded that she had made no mention in her evidence-in-chief of manual strangulation.  Counsel suggested that she was attempting to avoid implicating Roberts.  She responded:

“Why would I do that?  No one had asked me.  It happened so quick, all of these incidents happened in the space of a few minutes. … I recall seeing him, you know, the fight has ended up near me.  I recall seeing Ash [Roberts] on top of him.  Yes, I saw him with his hands around his throat at some stage there.  I’m not standing there paying attention.  That’s the last thing I’m doing is standing there watching exactly what everyone was doing.  I was trying to keep out of it and I couldn’t because it came close.  I took off that way.  I heard someone ask for, you know, a knife. Ash – I heard Ash ask for the knife.  I heard Blaze go get it.  … I saw him stab Orca in the shoulder with it.  It stared [sic] the living shit out of me and I took off out the back.  If I’ve thrown a towel or I’ve said that someone was strangling, yes, these all – all this happened in that space of a couple of minutes, if not less – 30 seconds even.  It’s – yeah, when I say torture that to me is torture, by stabbing someone, you know, in the shoulder like that, it is torturous, it’s not like he stabbed him to kill him; he stabbed him to hurt him.  You know, otherwise you wouldn’t stab someone in the shoulder.  I had seen him do that twice that night.  That was the second time.”^[7]

81. Davis’ cross-examination by Roberts’ counsel focussed particularly on her drug use and that she had been bingeing on a mixture of drugs for about three weeks prior to the killing.  Counsel referred to her relationship with Roberts and her attempts to contact him after the killings.  He asked:

“What I’m suggesting is you really don’t know what happened at Flikkerz this night because you were so drug affected you have little or no memory of anything?-- I have a long history of taking drugs, and I’ve taken lots of different drugs.  There’s not a drug that I’ve taken ever that’s let me see something that wasn’t real.  No amount of drugs changes simple facts – certain facts to me … I wasn’t legless.  I wasn’t unconscious.”^[8]

It was put to her that she had heard gossip about what had happened and that was the basis of her evidence.  She denied that she was hallucinating at the time and that she had not taken an hallucinogen in the 48 hours before the incident.

82. Davis had given three statements to police – one on 18 June 2009 in which she said she knew nothing of the events at Flikkerz on 17 February; the second over two days on 22 and 23 June which she said in evidence did not entirely represent what had happened, although was largely accurate; and a third on 14 July 2009 which was relatively brief, identifying CCTV footage.  She explained to counsel for Pearce why she had been less than frank in her statements:

“But I was still not – I was still thinking I was going to be charged and arrested and might lose my children and, you know, all this stuff at this stage.  Because as far as I understood, I had been an accessory just by not reporting it.  So I was – and he – yeah, I was under – yeah, I was – yeah, not feeling too safe about telling the truth.  I’m still not 100 per cent, but, you know, that’s life.”^[9]

83. The fact of an undertaking from the Attorney-General was raised with her but Davis said it was given after her statements were taken.  She had received the undertaking just before she gave evidence at the committal:

“Yes, which was a load off in that respect, so I was able to be more forthcoming with the truth without feeling I would get in trouble for it.”^[10]

After a strong cross-examination that Davis had neglected to give evidence about the knife on other occasions counsel for Pearce said:

“And that’s because, I suggest, Miss Davis, that you were never sure about who got a knife for Ash Roberts?”

Davis responded:

“I can understand how you think that.  But no, unfortunately for me I got to see some things, and that was one of them.”^[11]

84. The following day counsel conceded before the jury, that contrary to the vigour of his cross-examination the previous afternoon in which he virtually maintained to Davis that she had invented the evidence about the knife which implicated his client, that she had mentioned the knife to police in her statement.  This would, no doubt, have enhanced her credit with the jury.

85. Counsel for Pearce stressed that Davis’ recollection of the night would not be very clear due to her drug consumption, a proposition with which she agreed.  The following exchange occurred:

“That’s something that you made clear to the police a number of times?-- Yes. 

“I’m drug fucked”, was one of the words that you used to describe your memory at that time?-- Yeah, with the initial couple of statements, yes, it was.  Yeah, no amount of drugs or lack of sleep has changed what I saw, though, or what happened.”^[12]

86. Counsel for Pearce asked Davis if, when she gave her statement on 22 and 23 June 2009, she was “deeply anxious about [her] own position” to which she answered that she was.  He mentioned her children and her concern that she might be charged.  She answered:

“I don’t mind being charged.  I couldn’t care less, I don’t even mind doing time.  I have a problem because my children have nobody but me.  So if I go, they are left in the State’s care, et cetera.  So, that – that’s my fear.  … Otherwise I’m happy to be punished for any wrongdoing I’ve done.”^[13]

87. In re-examination the prosecutor read the terms of the Attorney-General’s undertaking^[14] which were, as customary, that Davis would not be charged as a consequence of any evidence she gave in the proceedings against Pearce, Roberts and Doyle other than proceedings for giving false evidence.

88. Jade Crawford worked next door to Flikkerz at the Cabaret Club at the relevant time. She recalled one evening in February calling in to Flikkerz to see people she knew. Roberts came out of the front room and asked her to come into that room with him. He closed the door. She saw blood in the right hand corner of the room approximately a metre by a metre. Roberts told her that it was from a fight the night before “from a guy trying to attack one of the girls”. Ms Crawford helped him clean the blood with rags and some bleach material.  While she was doing so she picked up a piece of matter which was like a blob of blood.  She put it back down.  Counsel for Roberts did not challenge her evidence. 

89. Adrian Jack Skinner’s evidence confirmed that he witnessed a transaction between Sharnee Kerr and Roberts at Flikkerz and that the quality was not good since he had consumed some of the same drug earlier in the evening.

90. Jessy Jimi Kaka was living in a house at Coopers Plains in February 2009 and recalled that Jack Skinner and Sharnee Kerr came to the house with “gear” and then returned with him to Flikkerz.  It was Kaka’s first visit to Flikkerz.  After some time he, Jack Skinner, Sharnee Kerr and Brack returned to Coopers Plains.  Jack and Sharnee were doing drug deals, “Orca” had some speed.  Later Kaka received a phone call from Roberts looking for the people who had ripped him off – Jack and Sharnee.  Roberts and “a mate” [Doyle] turned up later looking for more drugs.  Kaka told Roberts that Brack had some drugs and thought that Roberts had bought from him.  Kaka confirmed that the quality of the speed that he gave Brack which Brack had given to Roberts was “mediocre”.^[15] 

91. All accused made a number of formal admissions. Amongst those which specifically related to Roberts are the following:

“…

2. Police have spoken to Belinda TIPPO also known as Bell.  She has stated she cannot now recall any events in the relevant period as a result of her illegal drug abuse at that time.

…

6. On 10 July 2009 police seized the following items (which had been left there by Ashley ROBERTS) from the residence of Jennifer BRETT at … Warwick:

(i)ROBERTS’ mobile phone containing BRACK’s sim card; and

(ii)BRACK’s mobile phone without any sim card.

7. Computer Forensic examinations recovered the following images (attached) from BRACK’s mobile phone:

(i)Photograph of Jade CRAWFORD [which Jade Crawford said she had sent to Roberts] stored into the phone at 2:39 AM on 27 February 2009; and

(ii)Photograph of Ashley ROBERTS taken at 5:50 PM on 6 March 2009.

8. Telecommunications records show that BRACK’s sim card was first used in BRACK’s phone on 5 January 2009 at 17:30 and last used on 17 February 2009 at 10:42.

9. Telecommunications records show that ROBERTS’ sim card was first used in BRACK’s phone on 17 February 2009 at 12:18 and last used on 4 March 2009 at 13:25.

10. Telecommunications records show that BRACK’s sim card was used in ROBERTS’ phone on 10 March 2009 at 4:10.

…

23. Police have been unable to locate the witness Sharnee KERR for the purposes of giving evidence at trial.  At the Committal Hearing on 8 September 2010 Ms KERR gave evidence that:

a.While at Flikkerz, Kerr observed that Blaze Pearce was performing the role of doorman.  He was walking up and around Flikkerz and back down to the front door.  He sometimes brought a customer up.

b.The only conversation between Kerr and Pearce was to exchange ‘Hello’.  That whatever conversations took place between Kerr, Brack and Kaka, Blaze Pearce was not a party to them and had no other involvement with them in her presence.”^[16]

The admissions also included telecommunications records on 17 February 2009 and messages between Davis and Roberts after 17 February 2009.

92. Roberts participated in an interview with police on 16 July 2009 between 10:32 am and 5:41 pm.  There were various short breaks in the course of the day.  Initially Roberts denied any knowledge of any assault upon Brack.  He distanced himself from Brack whom he described as a heroin dealer.  When the large pooling of blood was described in the front room Roberts said it was the first he had heard of it.  Gradually when it was apparent that police had information, initially through the CCTV footage which they showed to Roberts, he revealed a little more knowledge of events involving Brack.  He agreed that he had been to a house at Acacia Ridge (near Coopers Plains) and was involved in transporting drugs from that address with Brack back to Flikkerz accompanied by Doyle.  Roberts maintained that he was giving Brack drugs to sell on the street in Fortitude Valley and Brack was returning with the money to Flikkerz.  He said that Brack had a large drug debt to “Kiwi” the person at “Acacia Ridge”. 

93. After a lengthy discussion about telephone calls between himself and others including Brack on 16/17 February, police suggested that Brack had been assaulted and Roberts answered, “Not physically by me, no”.^[17]  He then said that his drug supplier, through another person, had requested Roberts to teach Brack a lesson because of the poor quality of the drugs he had sold.^[18]  Brack was understood to owe his dealer “the Kiwi bloke” money for drugs.  Others were to “get done” as well.^[19]  He had told Pearce about this request to teach Brack a lesson.  He said:

“… it all started up there [at Flikkerz] and I’ve hit him once, right, teach him a lesson because he give me shit and then that was it, and then he’s tried running and Blaze [Pearce] has crash tackled him and I’ve just gone, oh fuck this. … I’m out the door.”^[20]

94. Roberts said:

“I’ve hit Orca back here [indicating]. … Right, when he’s sitting on, when he’s sitting on the chair, he’s got up and come over to the counter.  I’ve [INDISTINCT] hitting him, and then he started running, and I said, stop him, and then Blaze has jumped up off the couch and crash tackled him over there and they’ve ended up in a big scuffle at the back there.”^[21]

Roberts hit Brack in the face, describing the blow as a pretty hard straight punch.^[22]  Brack reacted:

“You know, stumbled and started shaking his head and then he started running.”^[23]

It was then, according to Roberts, that Brack was tackled by Pearce.  In response to a question whether he noticed any blood on Brack when he hit him, Roberts said:  “Oh, he was bleeding, yeah. ...’Cause there was blood all over that sofa.”^[24]  He agreed that he had called out to Pearce not to let Brack go.  Roberts then described Pearce:

“Punching him, kicking him, everything, like, so.^[25] … He was getting the living shit kicked out of him … All over.”^[26]

95. Roberts left the scene and was away for about 20 minutes.  When he returned Brack was unconscious, lying on the floor.  Roberts concluded that he was dead and dragged him into the front room.  Roberts said he wrapped him in a sheet (and/or carpet) and left him there.  He described Brack as not breathing, bleeding from the eyes, nose and mouth.^[27] 

96. Interviewing police asked Roberts whether he saw Pearce choking Brack “at all or anything like that”. To this Roberts answered, “to the extent that I actually seen it, no.” But he said that Pearce had said to him:

“It’s just the job’s done, I choked the cunt to death and then I crushed him and … Yep, choked him and crushed him, so whatever crushed was, whether he jumped on him, like, jumped on his head, his guts, stomach, chest, but yeah.”^[28]

When asked did Pearce outline how he choked Brack, Roberts said no but he did not think he would have used his hands.  He said there was nothing to choke him with when the police asked could he have used a belt or something like that.  Roberts then volunteered:

“There to see, like, he could’ve used the towel, could’ve used the sheet. … Could’ve used his shirt, I don’t know.”^[29]

97. Roberts denied taking possession of Brack’s phone. He said that Brack’s body, wrapped in the sheet, was left throughout the day, presumably in the front room. He said he was subsequently told by Denis Calnan (possibly a co-owner of Flikkerz) that he had discovered the body and had brought the wheelie bin up into the room, placed the body in it and taken it out the back. The inference from Roberts’ evidence was that the bin was left out for collection by the garbage truck. Roberts said that after Pearce had finished assaulting Brack and he was thought to be dead they stripped him of his clothes. Roberts denied seeing Brack stabbed. Roberts said he then went with Doyle to a place where he had clothes and showered and changed.

Evidence led in the prosecution cases against Doyle and Pearce not admissible against Roberts

98. Doyle participated in records of interview with police on 20 June and 7 July 2009 and a recorded “walk-through” of the Flikkerz premises on 8 July 2009.  Those interviews were played to the jury.  In many places in those interviews Doyle gave opinion evidence or reported hearsay accounts of Roberts’ propensity for violence.  For example in response to an observation by one of the interviewing police that he (the policeman) did not know Roberts, Doyle opined:  “Apparently he’s very violent.”^[30]  Later Doyle said:

“… I never met Ash before in my life, he’s just the one that’s sort of taken over from where I left.  And I know everywhere he goes he’s trouble.  He likes bashing women.”^[31]

Police asked how Brack had got involved in a fight with Roberts.  Doyle said:  “Oh well Ashley with his temper he’ll fuck, he’ll go off at anybody. …”^[32]  After a discussion about how the body had been disposed of Doyle said that he did not see how the deceased’s body got into the bin and that he was trying to get away from Flikkerz.  He said:

“I was frightened the shit out of my life, ‘cause I know what this fuckhead’s like. … He’s been up for assault, the whole lot, all the way through from Melbourne up to here.”^[33]

99. Doyle was asked to describe Roberts as a person. He said: “Scum but oh he knows how to manipulate people.” In response to the question, “What’s his level of violence?” Doyle replied: “Extreme”. Doyle was asked whether he thought that prior to the murder. He answered: “I hadn’t seen it, I’d heard of it”.^[34]  Doyle was aggrieved at Roberts because he had taken his car and said that when he retrieved it Roberts had left paperwork in there

“from all the police reports for assaults and everything. … But all he wanted to do was punch people.  Stand over them and oh you can’t do that and most of them were all small inconsequential young people having a good time, not doing anything wrong, he was just being a bully, and he kept overstepping his mark.”^[35]

100. Doyle described Roberts attacking Brack. He said he could hear it rather than see it and he heard “Oh gargles and everything”.^[36]  He said that Roberts was punching into Brack “like there was no tomorrow”.^[37]  Doyle said he could see blood coming out of Brack’s ears, mouth and nose when he was trying to get away.^[38]  Doyle said that he attempted to kick over a stool between Brack and Roberts to enable Brack to escape. 

101. Doyle explained to police that he had stayed back from the altercation but tried to explain further the noises that he heard. Doyle said:

“It’s a bit hard to explain it other than gurgling.  I’d say he was being chocked [sic] the life out of.”^[39]

He said that he could see Roberts standing over the top of Brack although he could not see Brack because he was on the floor.  Shortly afterwards when describing the assault by Roberts Doyle said:  “It was like he was choking him”.^[40]  When asked how he did that Doyle answered,

“Towel I’d say, ‘cause there was a towel somewhere there, there was a towel around Kevin’s neck.”^[41]

Doyle described the towel as “like a government towel, blue and white thing”.^[42]  He related that Roberts asked for a towel and Davis got the towel and gave it to him.  He admitted that he had not seen anyone get the towel and it could have been Pearce or Davis.  He described that it was around Brack’s throat “just to muffle him, stop him from screaming or whatever, squealing”.^[43]  Doyle then elaborated:

“Oh well it’s like he was, he had him um from what I can see being back here, it’s like he had him he was standing over him with the towel just like you do with a cat when you break it’s [sic] neck, same sort of thing.  That’s what it looked like, like he was breaking an animal’s neck.  Don’t know what the wet towel does though, it must make it easier.”^[44]

Doyle did not know if the towel was wet.  Doyle said that he was in and out all the time wishing to distance himself from the assault on Brack.  Doyle then described the towel as being rolled up and that Roberts was standing over Brack with the towel around his neck.  Brack was still twitching when Doyle returned to the room but ceased “after a while, I don’t know how long though”.^[45]

102. When asked by police if he got up close to Brack, Doyle responded that he was going to but there was nothing he could do:

“… by the time Ash and Blaze had got into him, even with my little try and, trick to try and get him out, it was too late.  Ash was determined to kill everything and anything in that room. … Oh, he was determined to kill everything in that room.”^[46]

103. Pearce was interviewed by police on 17 July 2009. He said in respect of the assault by Roberts on Brack that “he just lost control of himself, sometimes he goes like that. He just fucking, he’ll flip out, mate.”^[47]  Pearce described Roberts as attacking Brack:

“… before I knew it, Ashley comes flying out with a big fucking knife, fucking starts laying into him again.  And I went, what the fuck’s going on?  … He’s laying into him with a fucking knife and that, trying to fucking slit his throat and this shit …”^[48]

Pearce described Roberts as sitting on Brack who was on the floor on his back.  He described Roberts as having his hands around Brack’s throat using all his weight.^[49]  Pearce said that he moved away and then when he returned:

“… next minute he’s got a fucking towel around his fucking throat … A fucking towel on him.  I said, what, what are you doing with the towel, you know, just fucking leave him, I, just leave it now.  I was just saying, he’s dead … the way he had his hands and that, just around his throat.  That other cunt kept telling him how to do it and pointing like this and shit. …”^[50]

104. Doyle and Pearce but not Roberts made the following admissions:

“1.Police have been unable to locate the witness Denis Edward CALNAN for the purposes of giving evidence at the trial.

2. On 10 July 2009 Mr CALNAN provided a statement to police which stated in part:

a.It would have been about midday on 17 February 2009 when I got to Fortitude Valley, I remember it was quite a hot day, and I was feeling very hot and tired when I got there.  As I walked past the entrance to ‘Flikkerz’ I noticed the door was ajar.

b.I went upstairs and saw a number of people standing around the desk, I only really remember that Ash was one of them, and another bloke I know as Blaze was also there.  I know Blaze from hanging around the streets in Fortitude Valley, but had never known him to have any connection with ‘Flikkerz’.

c.For a period of time, possibly up to an hour, Jason [part owner] and I just sat on the lounge and talked about a few different things.

d.A short time later Jason got up to leave, and it was at this time I asked him whether he still wanted these other people to remain in the club.  I was referring to Ash, Blaze and a couple of others that were still there at that time.

e.I told them that it was time to leave.  I can remember that Ash and Blaze were definitely still there, and I think there were one or two other males as well, but as I said before, they were not people I recognised.

f.Ash and the others pretty much left straight away, but Blaze took a bit of time to pick up some bags and things he had with him, before he too eventually left.

g.Some time later I got up off the lounge and went and locked the back door before going down the stairs and pulling the front door shut behind me.  To my knowledge no one was left inside ‘Flikkerz’ at this time.”^[51]

105. Roberts complains that the contents of that admission are inconsistent with statements made by him in his police interview to the effect that Denis Calnan had told him that he (Calnan) had located the body the next day after Jason had left^[52] and that he (Calnan) had cleaned up the mess and thrown the body in the wheelie bin.^[53]

Applications by Roberts for a trial separate from Doyle and Pearce

106. Roberts made no application for a separate trial prior to the commencement of the trial. On day seven, on 7 June 2011, his counsel applied for a separate trial prior to Roberts’ interview with police being played to the jury. The basis for the application was Davis’ evidence that she provided a towel, having denied at committal that someone had asked for a towel.  It was conceded that the evidence that Roberts had used a towel to choke Brack to death was contained in the statements of Pearce and Doyle but that they were inadmissible against Roberts.  Counsel contended that it was unlikely that the jury could disregard the descriptions given by Pearce and Doyle of Roberts strangling Brack now that they had the supporting evidence of Davis that a towel was called for by someone.  Her Honour refused the application on the basis that any injustice to Roberts was protected by her Honour giving the usual directions in relation to the inadmissible evidence of the co-accused.^[54]

107. On day nine, on 9 June 2011, when it was proposed that certain admissions be made in respect of Denis Calnan, counsel for Roberts renewed his application for a separate trial on the basis that any directions to ignore those admissions would not be effective to prevent unfairness to Roberts.  Her Honour refused that request.^[55]

Ground 1 – Separate Trial

108. In Webb & Hay v The Queen^[56] Toohey J, with whom Mason CJ and McHugh J agreed, observed:

“King C.J. dealt with this ground [application for separate trial] by pointing out that there are “strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together.  That is particularly so where each seeks to cast the blame on the other.”  What King C.J. referred to as “strong reasons of principle and policy” were discussed by his Honour in Reg. v. Collie.  I respectfully agree with that discussion which emphasizes that when accused are charged with committing a crime jointly, prima facie there should be a joint trial.  There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others.  There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused.  That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused.”^[57]

His Honour observed:

“In the end the critical question before an appellate court in these circumstances is whether, by reason of the joint trial, there has been a substantial miscarriage of justice or, put another way, whether improper prejudice has been created against an accused.”^[58]

109. In this court in R v Davidson^[59] de Jersey CJ and Davies JA said:

“Generally there are strong reasons of principle and public policy why joint offences should be tried jointly and the mere fact that one result of joinder will be that evidence admissible against one but inadmissible against the other accused will be before the jury is not a reason for ordering separate trials.”^[60]

Keane JA, with whom Muir JA and McMurdo J agreed, referred to this passage in R v Roughan & Jones.^[61]His Honour added that the “strong reasons” for a joint trial “are strengthened rather than weakened where each of two accused deploy the “cut-throat” defence”.^[62]  His Honour referred to the following passage in Ali v The Queen^[63]per Callinan and Heydon JJ, with whom Gleeson CJ agreed:

“Section 597B of the Criminal Code [(Qld)] confers a discretion on the trial judge, at any time during the trial of two or more persons, as here, charged in the same indictment, that the persons charged be tried separately.  The events leading up the murder and dismemberment of the infant, and the guilt or innocence of the appellant and the co-accused, were closely interconnected.  Their relationship, their similar motives, their almost equal opportunity to commit the crimes, and their capacity, either separately or jointly to commit them, all argued very strongly in favour of a joint trial.  There were no special or other features of the case requiring that they be tried separately.  That one might seek to incriminate the other, as each accused here did, could provide no justification for a direction that the appellant and his co-accused be tried separately (R v Palmer [1969] 2 NSWR 13).  A joint trial of the appellant and the co-accused served to give the jury the means of obtaining a conspectus of the respective roles of each of them in the crimes with which they were charged.”^[64]

110. Counsel for Roberts accepted these statements of principle but contended that this was a case in which it would be difficult, if not impossible, for the jury to disregard the evidence of Pearce and Doyle that they had seen Roberts strangle Brack with a towel after Davis had given evidence that she had obtained a towel and passed it to someone.  Counsel for Roberts further contended that the admissions made by Doyle and Pearce in their cases about the evidence of Denis Calnan would be used against Roberts to contradict his statement that Calnan had told him that he had disposed of the body.  He further contended that statements made by Doyle and Pearce in their police interviews about Roberts’ propensity for sudden violence and Doyle’s opinion that Roberts had an intention to kill were prejudicial such that no directions could have obviated the prejudice to Roberts’ prospects of an acquittal. 

111. Counsel for Roberts further contended that the way in which the respective cases against each accused were left for the jury’s consideration tended to exacerbate the difficult task facing the jury of focussing only upon the admissible evidence against each. This was because the jury had to consider whether each of Doyle and Pearce had in some way assisted Roberts (or Pearce as an aider) in killing Brack pursuant to s 7(1)(b) and (c) as aiders.  Similarly, in considering whether Doyle in the alternative charge was an accessory after the fact of murder, it was necessary for the jury to consider whether Roberts was guilty of murder for the purpose of dealing with Doyle’s guilt and yet disregard Doyle’s evidence when considering Roberts’ guilt in Roberts’ case.

Summing-up on the use of inadmissible evidence against Roberts

112. The primary judge’s directions on the need to keep in mind the evidence admissible against each particular accused when considering the case against that accused are not the subject of criticism. The jury were provided with an aide-mémoire^[65] to remind them of what evidence was inadmissible in respect of each accused.  Her Honour explained to the jury:

“Although the defendants are being tried together, you must give the cases against and for each of them separate consideration.  Separately consider the evidence admitted in relation to each defendant. 

In respect of each charge, each defendant is entitled to have the case decided on the evidence and on the law that applies to him and as it relates to each particular charge, and so you must return separate verdicts in respects [sic] of each defendant and separate verdicts on each charge you consider.  Of course, as the evidence is different in the separate cases and in respect of the different offences, your verdicts need not be the same, whether in respect of the charges or the defendants.

As I mentioned, more than one defendant is on trial.  Although the defendants are being tried together, you must give the cases against and for each of them separate consideration, as I have mentioned.  That is critical to ensure that the defendants receive a fair trial.  There are, in effect, three trials.  Each defendant is entitled to have his trial decided solely on the evidence admissible in the trial against him.  Some of the evidence before you cannot be considered against all defendants. 

To ensure fair trials, you must strictly follow my directions in relation to what evidence may be used in the trial against each defendant.  In this regard, I direct you as a matter of law that as regards the admissions concerning Dennis Calnan, contained in Exhibit 37, those admissions are only made in the case against Doyle and Pearce.  So they are not admissible evidence in the case against Roberts, and you must not have any regard to them whatsoever when you come to consider the case against him.

The audio and videotapes of police interviews are only admissible and can only be considered in the case for and against the defendant giving the interview.  You must not consider that interview when you are deciding if the case has been proved against another defendant.  That is impermissible.

To assist you, I will give you an outline at the end of my summing-up to remind you of what I said as to the evidence which is inadmissible and cannot be used in the case of each defendant.

So you must reach your verdict on the evidence and only on the evidence admissible in the case for and against each defendant. …”^[66]

113. After dealing with the basis of the case against each accused under s 7 of the Criminal Code, her Honour directed the jury how to approach Davis’ evidence and against each accused.  Her Honour then referred the jury to the case against each of the accused separately.^[67]  The primary judge outlined the basis of the case against Doyle before turning to the case against Roberts.  Her Honour said:

“In relation to Mr Roberts, again, I remind you that the police interviews of Mr Doyle and Mr Pearce are not evidence in the case against Mr Roberts and so what they say in those interviews cannot be used at all when you are considering the case against Mr Roberts.  So, if they make reference to a towel, those statements [sic] is not evidence in the case against Mr Roberts and you must totally disregard those interviews. 

Nor, members of the jury, are the admissions concerning Mr Calnan’s evidence in Mr Roberts’ trial and, again, you simply must have no regard to that when you are considering separately the case against Mr Roberts.”^[68]

114. Her Honour then referred to Ms Davis’ evidence against Roberts as advanced by the prosecution and to the police interview with Mr Roberts and what might be gleaned from it. Her Honour directed the jury about Roberts’ evidence about the disposal of the body^[69] which will be discussed further under ground 3, and the role of motive in the assessment of the case against Roberts.  Her Honour then dealt with the defence submissions in relation to that body of evidence, particularly that of Davis.  Her Honour referred to counsel’s submission that the jury could not place any weight on Davis’ evidence about throwing a towel into the room.  Her Honour added:

“Moreover – and I gave you this very firm direction several times – whatever other defendants say in their interviews is entirely inadmissible in the case against Mr Roberts.”^[70]

Her Honour dealt with the defence contention that intoxication had infected Roberts’ capacity to form either of the relevant intentions; that Ms Crawford’s evidence that Roberts asked her to clean up did not prove involvement in a murder; nor did possession of Bracks’ mobile phone.

115. The primary judge concluded by reminding the jury that they could only find Roberts guilty of murder if they were satisfied beyond reasonable doubt that he assaulted Brack intending to kill him or to cause him grievous bodily harm and that he caused Brack’s death. The jury were told that they could return the alternative verdict of manslaughter if they were not satisfied beyond reasonable doubt that he had either of the requisite intentions.

116. After a short break the primary judge outlined the case against Pearce and prefaced her remarks by repeating what she had said consistently throughout, that the jury could not use the interviews with the other accused to consider the case against Pearce. Her Honour corrected a statement made by Pearce’s counsel that they could have regard to something said in Doyle’s interview to support his (Pearce’s) failure to intervene in the fatal fight. Her Honour firmly emphasised that such a process of reasoning was contrary to the directions that she had given and was “entirely prohibited”.^[71]

Discussion

117. Davis’ evidence that she threw a towel into the mêlée when Roberts was astride Brack took the evidence no further with respect to Roberts’ guilt.  Davis did not recall who asked for the towel or who caught it.  It could have been, as her evidence suggested, that it was for some cleaning up task given that Brack was seen to be bleeding profusely.  It is true that, if accepted by the jury, it could be assessed as supporting Doyle’s and Pearce’s contentions that Roberts had strangled Brack with a towel.  Davis had given evidence at committal that Roberts had his hands around Brack’s throat so that strangulation was before the jury from an admissible source.  The directions of the primary judge were very clear and repeated that there should be no impermissible reasoning and she particularly mentioned the evidence about the towel.  No impossible mental gymnastics were required to keep the three trials within one proceeding steadily in mind when dealing with Davis’ evidence about the towel. 

118. All that the admissions by Pearce and Doyle about Calnan’s evidence did was to challenge Roberts’ statement to police that Calnan had told him that he, Calnan, had disposed of the body. Since Davis contradicted Roberts’ evidence on this and Roberts’ own account to police of the events in and around that night were replete with admitted untruths, there was nothing about these admissions which unfairly prejudiced Roberts.  Furthermore, the primary judge was careful to direct the jury that they were not to take those admissions into account against Roberts. 

119. Perhaps of more concern were the comments by Pearce and Doyle of Roberts’ propensity for violence. It was unfortunate that those comments were not edited out of the records of interview. There was no application at the trial although it seems that some editing had taken place pre-trial.

120. There is no doubt that evidence of criminal propensity in a co-accused asserted by another accused may be such as to require a separate trial. Olsson J, with whom Malcolm CJ and Steytler J agreed, in Winning v The Queen^[72] said:

“In the event that an accused seeks to lead propensity evidence against a co-accused which, of its nature, is such that no directions of a trial Judge would be adequate to ensure that a jury could be expected to perform “the remarkable mental feats required of them”, the appropriate course is to direct a separate trial of the co-accused, however inconvenient that may be ... .”^[73]

121. R v Roughan & Jones^[74] was a case where the risk of an unfair trial led to an order for a re-trial when evidence was adduced by Jones to show that Roughan, his co-accused on a charge of a violent murder, was more prone to violence than he.  The facts in that case were quite different from the present.  Jones contended that he was of a less violent disposition than his co-accused Roughan; that he, Jones, had reason to fear Roughan because Roughan had been charged with a criminal offence after stabbing a friend; and that he ought more readily to be believed as a consequence.  Criticism was also levelled at the trial judge’s directions on how Jones’ evidence could be used by the jury.  As Keane JA observed, it was quite impossible to accept that Jones was of a less violent disposition than Roughan and not conclude, by virtue of that evidence, that Roughan was more violent and likely to have committed the offence.  There was the added prejudice of assuming guilt of the other stabbing charge when Roughan had only been charged and not found guilty.

122. The evidence here is not of that quality. The assertions, as set out above by Pearce and Doyle, about Roberts’ propensity for violence were vague and had a flavour of “gossip” about, at least, some of them. When the interviews of Pearce and Doyle are read as a whole those statements appear of little significance. This conclusion is confirmed by the failure of defence counsel, who was alert to take objections, to seek a direction in advance or a re-direction after her Honour had directed the jury on the topic. Furthermore, there was admissible evidence showing Roberts’ disposition for violence. Davis’ evidence of the stabbing earlier that evening on an unidentified male by Roberts was not challenged by Roberts’ counsel as untrue or mistaken in some way.  Roberts himself told police in his interview that he was prepared to assault Brack on direction and did so violently.

123. Finally, it was contended on behalf of Roberts that the jury’s task was rendered the more difficult by the way in which the case against each accused was left for consideration by the jury. In considering the case for murder against each of Doyle and Pearce the jury were required to consider, based upon the evidence admissible against each, which included their respective accounts of Roberts’ violent assault upon Brack, whether each had in some way assisted in the killing. In considering the alternative charge against Doyle of being an accessory after the fact of murder, the jury were required to consider the evidence admissible against Doyle including his description of Roberts killing Brack and deciding whether a murder had been committed and whether Doyle was an accessory to it afterwards. When the jury considered the case against Roberts they had to disregard the evidence that they considered in respect of each of Doyle and Pearce as to whether they were parties to a murder.

124. To consider this submission it is unnecessary to set out her Honour’s directions about accessorial liability. Atkinson J has done so in her reasons.  Those directions had been carefully canvassed with counsel in advance and all agreed with what was proposed.^[75] 

125. As a matter of logical progression it was likely that the jury considered the case against Roberts before considering the cases of aiding against Doyle and Pearce. Her Honour gave clear directions in respect of Doyle^[76] and Pearce.^[77]  To proceed in this way did not involve any extraordinary mental gymnastics.

126. In Gilbert v The Queen^[78] Gleeson CJ and Gummow J said:

“The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges.  It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice.”^[79]

Similarly, McHugh J said:

“The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge’s directions.  On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal.  If it was rejected or disregarded, no one – accused, trial judge or member of the public – could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial.  If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state.  Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials.  It is of course true that, if a jury persists in returning a verdict that is contrary to law, the trial judge must accept it.  But that only means in Lord Mansfield’s words that, although “[i]t is the duty of the Judge … to tell the jury how to do right … they have it in their power to do wrong”.”^[80]

127. The circumstances of this crime were such that, if at all possible, and consistently with each accused’s right to a fair trial, those accused should have been tried together. In light of the primary judge’s clear and firm directions to the jury about the body of evidence which the jury could consider against Roberts, her Honour’s discretion did not miscarry in refusing the several applications for a separate trial for Roberts.

Ground 3 – Consciousness of Guilt

128. It is convenient to consider this ground before ground 2 – unreasonableness of verdict.

129. Roberts contends that the primary judge did not adequately direct the jury about the use that may be made of post-offence conduct, that is, the evidence of Roberts’ involvement in concealing Brack’s body. Post-offence conduct other than lies may be capable of demonstrating consciousness of guilt and if it is relied on for that purpose will require an Edwards v The Queen^[81] direction.^[82]  Williams JA in R v SBB^[83] quoted from the judgment of Charles JA in R v Chang^[84] where his Honour, after considering statements in Dhanhoa v The Queen^[85], said:

“It has been recognised, however, particularly in relation to flight, that evidence of post-offence conduct may be highly ambiguous and susceptible to error. … As the court observed in White^[86] (1998) 125 CC (3rd) 385 at 398-9:

‘The danger exists that a jury may fail to take account of alternative explanations for the accused’s behaviour, and may mistakenly leap from such evidence to a conclusion of guilt.  In particular, a jury might impute a guilty consciousness to an accused who has fled or lied for an entirely innocent reason, such as panic, embarrassment or fear of false accusation.  Alternatively, the jury might determine that the conduct of the accused arose from a feeling of guilt, but might fail to consider whether that guilt relates specifically to the crime at issue, rather than to some other culpable act.”^[87]

130. The primary judge directed on this issue as follows:

“There is also the matter which the Crown points to concerning the statements made by Mr Roberts in his police interview that relate to his involvement in concealing Mr Brack’s body which the Crown asks you to use to draw inferences of guilt and in this regard, you will recall the evidence that the prosecutor referred to concerning what Mr Roberts said about wrapping up Mr Brack’s body in the carpet and also stripping his body.

However, before you could use that as indicative of guilt, you would first, as I have explained previously, have to find that the defendant so acted because he knew he was guilty of the offence charged, not for any other reason, and you must remember that people do not always act rationally and that there might be some explanation for the conduct which indicates that the conduct should not be used to draw inferences of guilt.

Moreover, before that evidence can assist the prosecution, you would have to find not only that it was motivated by a consciousness of guilt on Mr Roberts’ part, but also that what was in his mind was guilt of the offence charged, not some other misconduct.  If, and only if, you reach the conclusion that there is no other explanation you are entitled to use that as a circumstance pointing to the guilt of Mr Roberts and it’s to be considered with all the evidence admissible in the case against Mr Roberts.  Of course, standing by itself, it could not prove guilt.”^[88]

131. Mr J Allen, counsel for Roberts on this appeal, referred to the following passage in R v Mitchell^[89] where Williams JA stated:

“It follows, in my view, that where, as here, murder is the offence charged and manslaughter is available as an alternative verdict, it is incumbent upon the trial judge, if an Edwards direction is given, to indicate the element of the offence that is said to be admitted by the telling of the lie in question.  If that element is merely the implication of the accused in the killing then the jury should be instructed that the admission is so limited.  If the admission is said to establish the element of intent then the jury should be so instructed and they should be warned that they ought not simply infer from the fact that the accused was implicated in the killing that he had the requisite intention.”

132. The circumstances here were quite different from those in Mitchell.  The directions in Mitchell clouded the distinction between murder and manslaughter: 

“You could draw an inference of guilt more readily … because he believed the truth about what happened … would implicate him in the killing … .”^[90]

There was a real risk that the jury used the lies told by the accused to support a conviction for murder when the consciousness of guilt related to “the killing”, that is, manslaughter.  Here the jury had been fully directed on the elements of murder and that was the offence with which Roberts was charged.  While the directions might have been more specific, in the circumstances they were adequate and her Honour was careful to observe that even if concealing and disposing of the body pointed to a realisation of guilt “of the offence charged” (which was murder), by itself it proved nothing.

Ground 2 – Unreasonable Verdict

133. As set out, there was a considerable body of admissible evidence on which the jury could draw to find Roberts guilty of the murder of Brack. The attack on Brack was not irrational. Roberts himself said in his police interview that he had been “ripped off” and that Brack owed a drug debt to his supplier who had directed Roberts to teach him a lesson. Roberts had admitted to a violent initial attack upon Brack. Davis’ evidence was very important.  There is no complaint about the warnings which the primary judge gave to the jury about her evidence.  Davis’ evidence, in so far as it implicated Roberts, was believable and, to the extent that a “tone” can be discerned from the written transcript, there was a certain frankness and coherence about her explanation for her inconsistent earlier statements to police.  While Davis did not see Brack’s final minutes of life, her evidence of Roberts’ violent assault; his hands around Brack’s neck; and that Roberts called for a knife and was seen to stab Brack was consistent with an intention to cause grievous bodily harm even if that blow was not the fatal one.  Roberts told Davis almost immediately after Brack died that he was dead. 

134. There were other matters which closely implicated Roberts in the death even though, standing alone, they would not have been sufficient to convict.  For example, dragging the body into the front room immediately following death and wrapping it up; and immediately taking possession of Brack’s phone and using it.  There was also his account to police which was infected by his initial attempts to distance himself from any involvement in the attack; his gradual acceptance of responsibility, at least for an assault of some violence; returning after 20 minutes, on his account, and dragging the body away.  It made no sense, it might be thought, to accept Roberts’ departure from the scene in the heat of the assault when he was the person, on his account, who had the grievance and/or who had been asked to teach Brack a lesson.  It was also inconsistent with his attempt to keep Brack from leaving Flikkerz. 

135. There was a sufficient body of evidence for the jury to conclude that Roberts caused or was materially implicated in causing Brack’s death and that he had either of the requisite intentions. The verdict was not unreasonable.

Appeal by Pearce

136. I have had the advantage of reading Atkinson J’s reasons for allowing Pearce’s appeal and agree with those reasons.

Orders

137. The orders which I would propose are:

1. Dismiss Roberts’ appeal against conviction.

2. Allow Pearce’s appeal against conviction and order a new trial.

138. ATKINSON J: I have had the advantage of reading the reasons of White JA.  I agree with the orders proposed by White JA and with her Honour’s reasons.  My reasons for allowing the appeal by Pearce are as follows.

Appeal by Pearce

First ground: aiding direction

139. The relevant ground of appeal, added by leave on appeal, was:

“That a miscarriage of justice was occasioned by the failure to adequately instruct the jury that before a verdict of guilty of murder could be returned the jury had to be satisfied that the acts allegedly done to aid the principal offender were done with the intention of aiding the principal offender.”

140. This ground of appeal arises from the summing up and the redirections. To understand the appellant’s submissions it is necessary to set out the evidence led against Pearce and detail the judge’s directions and redirections about Pearce’s liability as a party to the offence of murder.

Evidence against Pearce

141. Evidence in the case against Pearce was given by Claudine Davis who worked as a stripper at Flikkerz Foto and Dance Studio (“Flikkerz”), the venue where the events occurred on 17 February 2009. Her evidence was that Pearce held Brack (also known as Orca) while he was assaulted by Ashley Roberts. Pearce (and others) wrestled, punched and kicked the deceased to stop him from leaving. She said she saw Roberts sitting on top of the deceased. Roberts called for someone to get the utility knife that was left in the back area and Pearce “went and got that for him and gave it to him”. She then saw Roberts stab the deceased with that knife. She went to the back landing and about five or ten minutes later, Roberts came out and told her Brack had died. She repeated that Pearce was more involved with Roberts than Doyle was because “he went and got the knife for him, things like that.”

142. When cross-examined by counsel for Doyle, Ms Davis accepted that Brack tried to run away from Roberts, a stool was kicked over by Doyle between Roberts and Brack. Roberts called out something like, “Grab him” and then Pearce grabbed Brack. She recalled that someone asked for a towel and she thought she threw it to Pearce. She said she was not sure but she did recall “something like that”. She later said she “vaguely remember[ed] throwing the kitchen towel”.

143. When cross-examined by counsel for Pearce, Ms Davis gave evidence that she saw Pearce assault another man who had been stabbed by Roberts. She said she heard Pearce trying to talk that man out of reporting to the police what had happened. She gave a detailed explanation of her initial reluctance to give a true and full account of what she had seen, but was adamant that she had seen Pearce give Roberts the knife with which Roberts stabbed Brack. She agreed that she was not sure to whom she gave the towel.

144. The other significant evidence against Pearce was found in the interview which he undertook with police officers, Detective Senior Constable Craig Valentine and Detective Senior Constable Kent Farmer on 17 July 2009. Pearce told the police that Brack had been to Flikkerz once and then came back about half an hour later. The first time he came, there had been an argument between Roberts and Brack about a drug deal.  Pearce told Brack to leave.  Brack returned to pay Roberts back but Roberts was still not happy.  Pearce referred to his interaction with Brack and what then happened as follows:

“And then fucking, I was telling Orca or something, like, what, are you fucking stupid or something, you know, fucking, just fuck off and go h-, go home and fucking, you fucking done enough last night, going on rounding people up here, and so you know, that fucking, you hardly even come up here and that, you know I mean, fucking, I don’t know what the fuck was wrong with him.

‘Cause of whatever had to do with them two, Ashley and, and Orca, fucking, I don’t know, Ashley was, sort of, taking advantage of fucking that situation of, of me being a bit upset with, uh, Orca with the way he was carrying on and shit and, he’s taken advantage of that and he’s fucking started laying into him.  I don’t know what, if he, he was thinking that I was fucking happy to see that, or fucking, or whatever or giving him permission to fucking, um, do harm to Orca, I don’t know, he just went, Ashley’s like, he just snaps and he just doesn’t fucking listen and he just fucking goes off his - -

…

You know, he’s just a stupid little shit, you know what I mean, and Orca’s not fucking, he’s not a big man or nothing, he’s fucking just skin and bones, really, but he’ll stand up for himself.  [INDISTINCT] and that, and Ashley started laying into him, and that … .”

145. He said that he tried to calm the situation down. Pearce said he told Roberts “look, fucking, just, just leave it, that’ll do, fucking leave him alone, you know, just leave it.” He said to Brack “just calm down, I don’t want you walking out here like that and people fucking thinking there’s fucking trouble up here.” He said the argument suddenly flared up again and he saw Roberts with a big knife “laying into him again”. He said Roberts was being egged on by Doyle.

146. Pearce said that Roberts was trying to slit Brack’s throat and Pearce ran over and grabbed Roberts and told him to calm down. He said he pulled Roberts off Brack and told Brack to clean himself up as Pearce did not want him running out of the premises “like that”. He said,

“And, um, Orca wouldn’t listen, he’s trying to run and that and someone said stop him, grab him and fuck, I fucking ran up, I kicked him into the lounge and I said, fucking stay there, just stay there and calm down, it’s alright, just fucking snap out of it, you’re not going out like that, ‘cause he had blood everywhere on him and fucking, you know what I mean, running out the door like that wouldn’t be, it just wouldn’t have looked good.”

147. Pearce said that these actions were why he had blood all over the white jeans he was wearing. He said Brack would not listen to him:

“Was just real weird and I’ve hit him, I said fuck, I tried to knock him out, sort of, just to fucking keep him there.”

148. Pearce said that Brack “just wouldn’t listen, he’s rah-rah-rah, rah-rah, like, like that. Just fucking every time he got up, he just started like running in slow motion and shit.” Pearce said that he hit him in the face to keep him there.

149. Pearce said he then saw Roberts lying on top of Brack with a towel in his hands. He would not let go of him. Doyle was telling Roberts how to strangle Brack. He said he walked away.

150. When the police then asked Pearce to go through the events in detail he said he did not know where Roberts got the knife from. He said, “But I think someone’s fucking handed him the knife or something”. He said that Roberts and Doyle took Brack to the bathroom to clean him up after Pearce told them to clean him up and then “Orca’s fucking ran from the bathroom … Fucking, fucking carrying on and screaming and shit, and blood everywhere and fucking I’ve, I’ve ran after him. I kicked him into the couch here, ‘cause he’s trying to run downstairs and I wouldn’t let him fucking go out there like that.”

151. Pearce said he told Brack to stay there but he would not listen. Pearce said Brack was being hysterical so he hit him. Pearce said he did not want Brack to leave:

“Just because he fucking, um, just carrying on too much and that, you know what I mean, fucking and what them two were doing - -

I’m thinking in the back of my mind, if I let him go and that, then fucking, or whatever and that, these two cunts might fucking turn on me and the girls, you know what I mean, that’s what I kept thinking.”

152. Later in the interview, Pearce described what happened after Brack came “flying out of the bathroom” “screaming and yelling”. He said:

“I didn’t want him going downstairs like that, fucking in that state, fucking, you know what I mean.  There’s cameras all over the front and that, coppers would’ve been th-, there, you know what I’m saying, fucking, I was trying to handle it myself.

…

I was running after him.  Ashley said, he’s getting away, quick, fucking stop him and I was, what the fuck’s going on now?  And I’ve fucking, I still had the bong in my hand, I’ve run after him and fucking, I kicked him into, into the couch here, just - -

…

Trying to stop him from fucking going down there, fucking running outside or wherever the fuck he was going.  And, um, I fucking, I said, Ashley, just leave it, I’ll fucking talk to him, he’s right, I’ll, and they’ve come over and fucking still trying, he’s trying to fucking, he’s screaming and yelling and I said, just calm down, Orca, calm down.  I said, Ashley, just leave him now, fucking he will fucking calm down.  And he’s, you know what I mean.

…

Yeah, I just wanted him to calm down and shit and, you know what I mean, there was still blood all over him and shit - -

…

Just try and calm him down myself and that, you know what I mean.

…

So, I was more concerned about them women and Orca too, but I, I just could not talk to Orca or fucking Ash. [INDISTINCT] they weren’t listening at all, so fucking.

…

Calm, he wouldn’t sit down.  He kept trying to fucking run and he’s fucking screaming and that, and I just, I, I whacked him.  I said, fucking stay there.

…

Fucking calm down.

…

And you can go then.”

Summing up

153. The first part of the summing up on the question of criminal responsibility as a party under s 7(1)(a), (b) and (c) of the Criminal Code was in general terms. It provided:

“Now, members of the jury, the defendants are each charged with the murder of Mr Brack on 17 February 2009, as I mentioned, and it is not only the person who actually does a criminal act who may be found guilty of it, that is the principal offender, anyone who aids, that is, assists, or helps, or encourages that person to do it may also be guilty of the offence.

The provisions of the Criminal Code extend criminal responsibility to any person who is a party to an offence.  So, the Criminal Code makes each of the following persons guilty of an offence:

(a)The person or persons who actually do the act which constitute the offence;

(b)each person who does an act for the purpose of aiding another to commit the offence; and

(c)each person who aids another to commit the offence.

So, one basis for the charge of murder is that a defendant is a principal offender; that is, unlawfully assaulted Mr Brack with intent to cause death or cause him grievous bodily harm, thereby causing or substantially contributing to his death.  This is the primary basis on which the Crown pursues the case against Mr Roberts.

An alternative basis for the charge of murder against a defendant is as a party to the offence; that is, that the defendant assisted in the murder of Mr Brack.  That is, that the defendant enabled, aided, or encouraged another, knowing that the other had an intent to cause the death of Mr Brack, or cause him grievous bodily harm.

The case against Mr Doyle in respect of a charge of murder proceeds solely on the basis that he was a party to the offence of murder.”

154. Her Honour then set out the elements of which the jury were required to be satisfied beyond reasonable doubt before they could find a defendant guilty of murder as a principal offender. She then returned to the question of criminal responsibility as a party.

“Now, as I mentioned, a further basis for the charge of murder is that a defendant aided the perpetrator of that offence to commit it.

Proof of aiding involves proof of acts and omissions intentionally directed towards the commission of the principal offence by the perpetrator, and proof that defendant was aware of at least the essential matters constituting the crime in contemplation.

The prosecution must prove that the defendant knew that the type of offence which was in fact committed was intended.  It is not enough if the prosecution prove the defendant knew only of the possibility that the offence might be committed.

It is enough if the prosecution proves not necessarily the identity of the perpetrator, but that there was a principal offender or perpetrator, and proof of the commission of an offence by that someone, and that the defendant aided that person to commit it.  The prosecution must prove that that other perpetrator was guilty of committing the offence by evidence which is admissible against the defendant.

So, for the prosecution to establish criminal responsibility for murder against a defendant as being a party by aiding, it is necessary for it to prove that the defendant committed his act to enable or aid another to kill, or do grievous bodily harm to the victim, knowing that that other intended to kill or inflict grievous bodily harm upon the victim. 

It is not necessary to prove that the defendant, himself had such an intention.  It is sufficient, and necessary, that the defendant knew that the other had it, and that, knowing this, did an act to aid or enable that other to kill or to do grievous bodily harm.  Therefore, you may find a defendant guilty of the murder of Mr Brack as a party, only if you are satisfied beyond reasonable doubt of three things. 

The first is that an identified or unidentified perpetrator committed the offence, that is the offence of murder. 

The second is that the defendant in some way assisted the perpetrator to commit that offence.

The third is that when he assisted the perpetrator to do so, the defendant knew that the perpetrator intended to kill or cause grievous bodily harm to Mr Brack. 

...

Members of the jury, to aid means to assist or help.  A defendant may assist, or aid another, by giving actual physical assistance in the commission of an offence, but it is not necessary for the Crown to show actual physical assistance.

Wilful encouragement may be enough, certainly if the defendant intended that the perpetrator should have an expectation of aid from the defendant in the commission of the offence.

Where the prosecution alleges aiding by encouragement, such as from the presence of the person charged at the commission of the offence, the prosecution must prove both.  That the person charged as an aider did actually encourage the perpetrator in the commission of the offence, such as by presence at the scene; and also that the person charged intended to encourage the commission of that offence by his presence.

Voluntary and deliberate presence during the commission of a crime without opposition, or real [dissent], may be evidence of wilful encouragement or aiding.”

155. On the following day, her Honour reiterated to the jury the elements of the charge of murder and that that was the only basis for the case against Roberts. She then dealt with liability as a party:

“An alternative basis for the charge of murder against a defendant is as a party to the offence, that is, that the defendant assisted in the murder of Mr Brack. That is, that the defendant enabled, aided, or encouraged another knowing that the other had an intent to cause the death of Mr Brack, or cause him grievous bodily harm.”

156. The learned judge reiterated that the case against Doyle proceeded solely on that basis and told the jury that “the case against Mr Pearce also only proceeds on the basis that he was a party to the offence of murder.”

157. Her Honour dealt with other matters and then gave detailed directions as to the prosecution case against Doyle which was of aiding the murder by encouragement and in the alternative of being an accessory after the fact to murder or manslaughter.

158. In summing up the case against Pearce, her Honour said:

“Now, as I mentioned, it is not only the person who actually does a criminal act who may be found guilty of it, anyone who aids -  that is, assists or helps or encourages - that person to do it may also be guilty of the offence.  As I said before, the criminal law extends criminal responsibility to any person who is a party to an offence and makes not only the person who actually did the act which constitutes the offence liable for that offence, but each person who does an act for the purpose of aiding another to commit the offence, and each person who aids another in committing the offence.

So, you may find Mr Pearce guilty of murder on this basis only if you are satisfied beyond reasonable doubt of three things: Mr Brack was murdered by Mr Roberts; that is, that he was killed by him, intending to cause his death, or at least do grievous bodily harm; Mr Pearce assisted Mr Roberts in some way to commit the murder; when he assisted Mr Roberts, Mr Pearce knew that Mr Roberts intended to kill Mr Brack or cause him grievous bodily harm.  If you are not satisfied on those matters beyond reasonable doubt, you cannot find Mr Pearce guilty of murder.

The Crown case against Mr Pearce is that he enabled, aided or encouraged Mr Roberts by:

one, his presence at the premises of Flikkerz at the time of the commission of the offence;

two, preventing Mr Brack from leaving the premises;

three, participating in an unlawful assault on Mr Brack;

four, obtaining or providing a knife used in the commission of the offence.”

159. After they retired, the jury sent a note asking, “can we rehear the transcript in relation to the Judge’s summary of the charges against Blaze Pearce?”

160. Her Honour redirected them as follows:

“Now, in relation to Mr Pearce you will recall that I said in my summing-up to you that, it is not only the person who actually does a criminal act who may be found guilty of it.  Anyone who aids -  that is, assists, or helps, or encourages that person to do it - may also be guilty of the offence and as you recall I explained that the criminal law extends criminal responsibility to any person who is a party to an offence and makes not only the person who actually did the act, which constitutes the offence, liable for that offence but each person who does an act for the purpose of enabling another to commit the offence and each person who aids another to commit the offence.

Now proof of aiding involves proof of acts and omissions intentionally directed towards the commission of the principal offence by the perpetrator and proof that the defendant was aware of at least the essential matters constituting the crime in contemplation and when I refer to the perpetrator, it is a reference in this context to Mr Roberts.

The prosecution must prove that the defendant knew that the type of offence which was in fact committed was intended.  It is not enough if the prosecution prove that the defendant knew only of the possibility that the offence might be committed.

You may find Mr Pearce guilty of murder on this basis, that is as being a party, only if you are satisfied beyond reasonable doubt of three things, Mr Brack was murdered by Mr Roberts, that is that he killed him intending to cause his death or at least grievous bodily harm.  Mr Pearce assisted Mr Roberts in some way to commit the murder.  When he assisted Mr Roberts, he – that is Mr Pearce - knew that Mr Roberts intended to kill Mr Brack or cause him grievous bodily harm.

If you are not satisfied on those matters beyond reasonable doubt, you cannot find Mr Pearce guilty of murder.  The case alleged by the Crown in relation to Mr Pearce, enabling, aiding or encouraging Mr Roberts, was by presence at the premises at the time of the offence by preventing Mr Brack from leaving, participating – by participating in the unlawful assault and by obtaining or providing a knife used in the commission of the offence.  So those are the matters that are relied upon in that regard.

Now, so as I explained, before you can find Mr Pearce guilty of murder, you must find beyond reasonable doubt that he knowingly aided in the commission of the offence of murder, that is that when he aided Mr Roberts he knew of Mr Roberts’ intention to kill or do grievous bodily harm to the deceased in assaulting him.

If you are not satisfied beyond reasonable doubt that Mr Pearce knowingly aided Mr Roberts in the commission of the offence of murder, but find that Mr Pearce aided in the killing of Mr Brack, but not knowing that Mr Roberts intended to kill or cause grievous bodily harm, then you may find Mr Pearce guilty of the offence of manslaughter.”

161. The prosecution case against Pearce was put on two alternative bases. The first was that, in accordance with Davis’s evidence, Pearce gave Roberts the knife which was used to inflict the fatal wound on Brack.  The second basis was that, on the version he gave in his interview with police, he kicked Brack and then hit him in the face to prevent him from leaving.

Appellant’s submissions

162. On appeal, counsel for Pearce submitted that the guilty verdict might therefore have been returned on the basis that he assaulted Brack rather than on the basis that he provided the knife. If the verdict were based on the jury’s being satisfied beyond reasonable doubt that Pearce provided the knife to Roberts then it could only be regarded as an act done for the purpose of aiding. If, however, the jury were not satisfied beyond reasonable doubt that he provided the knife to Roberts, but rather based their verdict guilty on Pearce’s assault of Brack, that raised the issue of his state of mind. Pearce gave an explanation as to why he assaulted Brack. That explanation raised an issue, not to do with the effect of this action, but rather the purpose for which he did it. Whilst his action in assaulting Brack may have had the effect of aiding Roberts, his explanation was that that was not his purpose in assaulting Brack which was to prevent him running outside where he could be observed covered in blood.

163. At common law, the mens rea required is both knowledge of the essential circumstances which made the act done a crime and an intention to help, encourage or induce the principal offender to bring about the forbidden result.  Gibbs CJ summarised the relevant law in Giorganni v The Queen (1985) 156 CLR 473 at 482 as:

“both knowledge of the circumstances and intention to aid, abet, counsel or procure are necessary to render a person liable as a secondary party.”^[91]

164. The application of those principles to s 7 of the Criminal Code is found in the judgment of McPherson JA in R v Jeffrey [2003] 2 Qd R 306 at 310-311:

“In relying on s. 7(1)(b) or s. 7(1)(c) to establish the guilt of a person as a secondary offender, it is not incumbent on the prosecution to prove that any act on the part of that person caused the death or even significantly contributed to it, or to prove on the part of that person a specific intention to kill or do grievous bodily harm to the victim.  Proof of those matters would tend to show that that person was not merely a secondary offender under s. 7(1)(b) or s. 7(1)(c), but the actual perpetrator of the offence under s. 7(1)(a).  In the prosecution case against the secondary offender, the prosecution is, of course, bound to prove all the elements of the principal offence to which the secondary offender is alleged to have been a party; but, when that is done, all that is necessary to establish the criminal responsibility of such an offender is that, with the requisite knowledge or state of mind, he did an act for the purpose of aiding or assisting another person or persons to commit that offence.” [emphasis added]

Respondent’s submissions

165. The prosecution submitted that the directions given by the learned trial judge were sufficient when her Honour said:

“Proof of aiding involves proof of acts and omissions intentionally directed towards the commission of the principal offence by the perpetrator, and proof that the defendant was aware of at least the essential matters constituting the crime in contemplation.”

This direction was reiterated in different forms.

Discussion

166. The principles in Giorgianni were applied to an accessory who had been charged with the offence on the basis of aiding and abetting by the New South Wales Court of Criminal Appeal in R v Stokes & Difford (1990) 51 A Crim R 25 at 37-38:

“To establish that an accused is an accessory to the commission of a crime by another person (whether or not he is a co-accused) by aiding and abetting him the Crown must establish:

(1) the commission of that crime by the principal offender, and

(2)that the accused was present at the time when the crime was committed, and

(3)that (subject to an exception which I discuss later) the accused knew all the essential facts or circumstances which must be established by the Crown in order to show that the crime was committed by the principal offender (whether or not the accused knew that they amounted to a crime), and

(4)that, with that knowledge, he intentionally assisted or encouraged the principal offender to commit that crime.

The accessory’s intention to assist or encourage the principal offender must be based upon that knowledge.  Those propositions were authoritatively stated in Giorgianni v The Queen (1985) 156 CLR 473 at 487-488, 494, 500, 504-505, 506-507; see also Yorke v Lucas (1985) 158 CLR 661 at 667.

…

The exception to which I have referred in the third proposition is discussed in Giorgianni at 502-503; 184.  The required intention and knowledge of the accessory does not extend to the consequences of the principal offender’s act.”

167. Those elements were also held to apply to the provision of the Criminal Code Act 1995 (Cth) (“the Commonwealth Code”) dealing with extension of criminal responsibility for complicity in Re Pong Su (2005) 159 A Crim R 300.  That case dealt with recklessness, which is not here relevant.  Kellam J held the Commonwealth Code excluded recklessness as a fault element for complicity.  With that exclusion dealt with, his Honour held:^[92]

“it follows that the prosecution must establish that the alleged accomplice meant to aid, abet or counsel the principal, or to procure the commission of an offence.  This is in accordance with the common law view of the essential fault element in complicity.” [emphasis added]

It follows that the prosecution must prove, inter alia, that that was the intention of a defendant charged as a party to enable or aid another to commit an offence.

168. The common law as explained in Giorgianni was followed in Queensland in R v Jeffrey.

169. In this case there was, on one scenario on which the jury was told that they could convict Pearce of murder, that is on the version he gave in his records of interview, a real question as to his intention.  It was necessary for the jury to resolve that question before they could find him guilty.  In the summing up the jury were told:

“you may find Mr Pearce guilty of the murder on this basis only if you are satisfied beyond reasonable doubt of three things: Mr Brack was murdered by Mr Roberts; that is, that he was killed by him, intending to cause his death, or at least do grievous bodily harm; Mr Pearce assisted Mr Roberts in some way to commit the murder; when he assisted Mr Roberts, Mr Pearce knew that Mr Roberts intended to kill Mr Brack or cause him grievous bodily harm.  If you are not satisfied on those matters beyond reasonable doubt, you cannot find Mr Pearce guilty of murder.”

170. In addition in order to find Pearce guilty of murder under s 7(1)(b) or (c) of the Criminal Code, the jury had to be satisfied beyond reasonable doubt in the circumstances of this case that, when he did the act or acts the prosecution relied on as assisting Roberts, he did that act or those acts intending that it or they would assist Roberts.  The listing of three matters of which the jury had to satisfied beyond reasonable doubt may have led them to believe that they were sufficient.

171. The learned trial judge should therefore have instructed the jury that they could convict Pearce of murder only if they were satisfied beyond reasonable doubt of four things. The three were as set down in the directions. The fourth is set out above. Without the fourth, the jury might have been misled into a conclusion that they could convict Pearce of the murder of Brack if they were satisfied of the three elements set out by her Honour and neglected to consider, as it was necessary for them to do, that they must be satisfied beyond reasonable doubt that, when Pearce did the act or acts which assisted Roberts, he did that act or those acts intending that the act or acts would assist Roberts.

172. The appropriate direction was not sought at first instance. Nevertheless, the failure to give such a direction deprived the appellant of the reasonable possibility of a verdict of acquittal.  Accordingly, it could not be said that no substantial miscarriage of justice occurred and the appeal against Pearce’s conviction should be allowed.  A retrial should be ordered.