R v Spencer

This case considered whether the trial judge ought to have given the jury an extended unanimity direction where the prosecution relied on alternative bases of criminal responsibility under ss 7 and 8 of the Criminal Code. The Chief Justice (with whom Morrison JA and Crow J agreed) held that it was not necessary for the trial judge to have given an extended unanimity direction in the circumstances of this case after extensive consideration of the relevant authorities. Whilst each case will turn on its own facts an extended unanimity direction is not necessary where the prosecution relies on alternative bases of criminal responsibility arising from substantially the same facts. The appeal was dismissed.

Bowskill CJ and Morrison JA and Crow J

31 October 2023

Background

The deceased was killed on 23 August 2016. [1]. The cause of his death was extensive blood loss caused by a combination of wounds inflicted by multiple “bladed weapons”. [1]. Five individuals were charged in connection with his death including the appellant. [2]. The prosecution only proceeded against three individuals: MC, SC and the appellant. [2]. MC entered a plea of guilty to murder. [2]. SC and the appellant entered pleas of not guilty and proceeded to trial. [2]. SC was acquitted of murder and manslaughter, however, the appellant was convicted of murder. [2]. The appellant successfully appealed against his conviction and a retrial was ordered: see R v Spencer [2020] QCA 265 (per Fraser, McMurdo and Mullins JJA). [2]. The appellant was convicted again in his retrial. [4]. The prosecutor had left the case to the jury on the following alternative bases:

• the appellant caused the death of the deceased by inflicting wounds to him with a weapon with the requisite intent to kill, or cause grievous bodily harm to, the deceased: see s 7(1)(a) Criminal Code (Basis A);
• the appellant enabled, aided or encouraged MC to cause the death of the deceased by travelling with MC to assist him, assaulting the deceased whilst armed with a weapon and/or by his deliberate presence at the scene whilst armed: see s 7(1)(b) Criminal Code (Basis B);
• the appellant was a party to a common unlawful purpose with MC to assault the deceased whilst armed, and it was a probable consequence of carrying out the unlawful common purpose that the deceased would be murdered: see s 8 Criminal Code (Basis C). [3].

Whether the trial judge erred by failing to give an extended unanimity direction

It was argued that the jury were required to be unanimous as to whether the appellant was guilty either on Basis A (as principal) or on Bases B or C (as accessory). [83]. The Chief Justice (with whom Morrison JA and Crow J agreed) rejected this argument after extensive consideration of the relevant authorities. [83]–[120], [161]–[162]. There were two categories of case: first, where alternative legal bases of guilt are relied on by the prosecution which depend substantially upon the same facts; and second, where the prosecution charges a single offence, however, more than one discrete act is relied upon, any of which, would entitle the jury to convict: R v Walsh (2002) 131 A Crim R 299. [102]–[105]. Extended unanimity is generally not required in the first category of case, however, it may be required in the second category of case. [102]–[105].

The Chief Justice referred to, inter alia, the following cases which her Honour considered fell within the second category of case: Lane v The Queen [2018] HCA 28; (2018) 265 CLR 196; and R v Koko [2022] QCA 216. [111]–[114]. The present case only involved a single episode of violence, rather than a number of discrete acts relied on in the alternative (Lane) or a hypothesis involving a killing at one of two possible places (Koko). [113]–[114]. The present case fits “squarely into the first category from Walsh… where alternative legal bases of guilt are proposed by the [prosecution] depending substantially upon the same facts”. [113]–[114], [119]. The authorities acknowledge that the effect of ss 7 and 8 Criminal Code is that the distinction between principal and accessory is “legally irrelevant” and extended unanimity as to the legal pathway to the verdict is not required. [85], [116].

The Chief Justice (with whom Morrison JA and Crow J agreed) observed that it was possible that some members of the jury were satisfied that the appellant was guilty on Basis A, others may have been satisfied of Basis B and some may have only been satisfied of Basis C. [116]. The jury was required to consider the same body of evidence when deciding whether they were satisfied to the requisite standard that the appellant was criminally responsible for the murder of the deceased. [117]. Whilst it was necessary for the jury to be unanimous in their verdict on at least one of the three possible pathways it was not necessary for them to agree on which legal pathway they took to get there. [117]. The alternate bases of criminal responsibility relied on by the prosecution did not involve materially different issues or consequences. [118]. There was no miscarriage of justice. [120].

Disposition

In the result, the appeal was dismissed. [160]–[162].

D Kerr