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King v R [1986] HCA 59; (1986) 161 CLR 423 (21 October 1986)

CATCHWORDS

HEARING

DECISION

MASON J.: For the reasons given by Mr Justice Deane I would grant special leave to appeal and allow the appeal.

MURPHY J.: I agree with Mr Justice Deane.

2. I wish to make some general observations.

Particulars in a criminal trial

3. It is the right of every accused person to know, with particularity, the case which the prosecution wishes to prove at trial. As a direct consequence of this right, a prosecutor "clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge" Johnson v. Miller [1937] HCA 77; [1937] HCA 77; (1937) 59 CLR 467, 489 per Justice Dixon).

4. In Giorgianni v. The Queen [1985] HCA 29; (1985) 156 CLR 473, the framing of indictments in the way adopted in this case was said to be "an undesirable practice because it does not make clear the real nature of the case against the accused" and further that "it was plainly preferable, in order to avoid the possible confusion of the jury, to have added sufficient particulars to indicate how it was that the appellant was charged with the offences alleged against him" (p.497).

5. The importance of particulars, not only to the accused, was recently highlighted by the Privy Council in Tsang Ping-nam v. The Queen (1981) 1 WLR 1462 where the charge could have been proved in a number of ways by the prosecution. At trial, it became clear that the prosecution could only prove the charge in the alternative: either the accused committed perjury or he lied to investigating officers. The Judicial Committee held this form of proof unacceptable and in the process commented that "had particulars been sought and ordered, the Crown's dilemma must at once have emerged" (p.1465).

Duty of prosecutor

6. The duty of a prosecutor is to present the case against the accused fairly and honestly; not to use any tactical manoeuvre legally available in order to secure a conviction. In this regard, I adopt the words of Justice Maxwell in R. v. Bathgate (1946) 46 SR(NSW) 281, 284-285:

"It cannot be too strongly impressed that the
obligations of the Crown Prosecutor arise not
merely by reference to the attitude adopted by the
defence. 'Counsel for the prosecution ... are to
regard themselves as ministers of justice, and not
to struggle for a conviction, as in a case at Nisi
Prius - nor to be betrayed by feelings of
professional rivalry - to regard the question at
issue as one of professional superiority, and a
contest for skill and pre-eminence' : Regina v.
Puddick [1865] EngR 61; ((1865) 176 ER 662, 663). 'But it must
be remembered that the whole policy of English
criminal law has been to see that as against the
prisoner every rule in his favour is observed and
that no rule is broken so as to prejudice the
chance of the jury fairly trying the true issue.
The sanction for the observance of the rules of
evidence in criminal cases is that, if they are
broken in any case, the conviction may be quashed':
Maxwell v. Director of Public Prosecutions
((1935) AC 309, 323); and Sugarman's case ((1935)
25 Cr App R 109, 115)."

7. Under s.8(1) of the Criminal Appeal Act 1912 (NSW), a new trial should only be ordered where it would more adequately remedy the miscarriage of justice than any other order the court is empowered to make.

8. A new trial is not the inevitable result of a successful appeal against conviction. The onus rests squarely with the prosecution to show the court that a new trial is the most appropriate remedy. In Cheatley v. The Queen (1981) Tas. R 123, the correct approach is clearly spelled out by Justice Everett:

"My conclusion is that there is no presumption in
favour of a second trial being ordered when an
appeal succeeds, and that the discretion of the
court must be exercised on a consideration of all
the relevant facts and circumstances. The accused
should be accorded neither more nor less personal
consideration than the overall justice of the case
requires in recognition of the public interest in
the fair and impartial administration of criminal
justice. I do not accept the counter argument on
behalf of the prosecution that 'the ordinary course
should apply'. I do not consider, for reasons I
have expressed, that there should be any 'ordinary'
course. Each case is individual and should be
determined on the basis of the facts and all
relevant considerations which apply to it - not to
a different case. It is a negation of the wide
discretion vested by statute in the Tasmanian
Court of Criminal Appeal to suppose that a common
mould exists and that all cases should be judged
within its framework" (pp.137-138).

9. Where there was insufficient evidence at the original trial to warrant a conviction or if the evidence that will be available at any new trial is insufficient then it would be contrary to the interests of justice to order a new trial. The appellant is entitled to an acquittal as of right. (Reid v. The Queen (1980) AC 343, 349-350; R v. Wilkes [1948] HCA 22; (1948) 77 CLR 511, 518; Andrews v. The Queen [1968] HCA 84; (1968) 126 CLR 198, 211; Gerakiteys v. The Queen [1984] HCA 8; [1984] HCA 8; (1984) 153 CLR 317, 321, 322, 331; Director of Public Prosecutions (Nauru) v. Fowler [1984] HCA 48; (1984) 154 CLR 627, 630; Cheatley, 138.)

10. Apart from such a case, the appeal court must weigh the competing considerations in deciding whether or not a new trial should be ordered. The following cases set out some of the considerations which should be applied: Reid, 350; Cheatley, 128, 130, 134-138; Fowler, 630-631; Ward (1980) 3 A Crim R 171, 179, 195-196; Ridgeway (1983) 9 A Crim R 43, 52-53.

11. Special leave should be granted, the appeal allowed, the order for a new trial set aside, and a judgment of acquittal entered.

WILSON J.: I agree with Dawson J. Special leave to appeal should be refused.

BRENNAN J.: I agree with Mr Justice Dawson. I would refuse special leave to appeal.

DEANE J.: The background facts and issues raised by this application for special leave to appeal are set out in the judgment of Dawson J. While I am conscious of the force of the considerations which have led Dawson J. to conclude that the Court of Criminal Appeal was not in error in ordering a new trial, I have ultimately come to the contrary conclusion. Since the views expressed by Dawson J. represent the views of a majority of the Court, I shall confine myself to a brief statement of why it seems to me that the appropriate order to remedy the miscarriage of justice which occurred on the trial of the applicant was an order directing that a verdict of acquittal be entered.

2. The charge upon which the applicant stood indicted and on which he was tried was an unqualified charge of murder. Under that charge, it was open to the Crown to prove guilt in a variety of capacities. In fact, by its conduct of the trial, the Crown made it clear that it sought to prove that the applicant was guilty of murder only on the basis that he was an accessary before the fact to the killing of his (the applicant's) wife by his co-accused, Matthews. It was on that basis that both the prosecution and defence cases at the trial were presented and conducted during the course of evidence. It was on that basis that both the Crown Prosecutor and the counsel who appeared for the applicant at the trial addressed the jury. It was on that basis that the learned trial judge approached his summing-up.

3. When the Crown Prosecutor requested the learned trial judge, after an overnight adjournment of the summing-up, to put a quite different case to the jury, involving the allegation that, even if Matthews was not the killer, the applicant was nonetheless guilty as an accessary to the killing by some unidentified person, his Honour should have refused so to do. If, in the event of such a refusal by the trial judge, the Crown had then sought a discharge of the jury so that the Crown could try again, his Honour should, in the absence of consent, have refused the application on the ground that it was made much too late. Likewise, if the Crown had then sought an amendment of the indictment so that in the event of an acquittal, the Crown could charge the applicant with the murder of his wife in some other capacity (such as accessary before the fact to murder by a person other than Matthews), his Honour should, in the absence of consent, have refused that application on the same ground. Because the Crown had adopted the undesirable approach of framing its indictment in the broadest terms it had subjected the applicant to the wide jeopardy of a trial on that indictment. But once the Crown elected at the trial to confine its case against the applicant with the result that the trial was conducted on that basis, it could not legitimately expect that it could, after evidence and addresses had been completed, seek, through the trial judge's summing-up, to obtain a conviction on some other basis if it became apprehensive that the case which it had presented might be rejected by the jury.

4. In these circumstances, it becomes necessary to ascertain the implications, from the point of view of the case against the applicant, of the jury's finding of not guilty in the case of Matthews. It was common ground at the trial that the applicant's wife had been murdered. On the question whether Matthews was the person who had killed her, there was, as Dawson J. points out, only one significant difference between the evidence admissible against Matthews and the evidence admissible against the applicant. That was the alleged confessional statement of Matthews himself which was admissible only against him. In that context, whatever may be the theoretical possibilities, it is inconceivable that the jury, acting reasonably, concluded that the evidence admissible against the applicant established that Matthews was the killer when it found that the evidence admissible against Matthews himself was inadequate for that purpose. Indeed, to resolve the present application on the basis of the theoretical possibility that the difference between the jury's verdicts is to be so explained would be to disregard common sense and practical reality. In the context of the evidence about the applicant's efforts to procure, through the agency of another, someone to kill his wife, the verdict of not guilty in the case of Matthews and guilty in the case of the applicant plainly indicates that the jury convicted the applicant on the basis of the case which the learned trial judge left to them but which the Crown had not sought to make against him and which he had no proper opportunity of meeting.

5. To order a new trial in these circumstances would be to give the Crown a second chance to secure a conviction of the applicant for the murder of his wife, after its election to present its case in a particular way at the trial should have led to an acquittal. The Crown could not have challenged such an acquittal by seeking to re-try the applicant and present its case in a different way. It should not be permitted now to achieve a similar result when the first trial would have resulted in an acquittal, had it not been for the Crown's wrongful conduct in persuading the trial judge to leave a different case to the jury. Put differently, the jury's verdict of guilty against the applicant on the basis of a Crown case which was not raised against him until the evidence had been completed, addresses had been made and the summing-up was in progress was a miscarriage of justice. That miscarriage of justice occurred because the learned trial judge wrongly acceded to the Crown's request to leave to the jury a case that had never been made against the applicant and that he had had no proper opportunity of answering. But for it, the applicant would have been finally acquitted of the charge of murder. It would be to compound that miscarriage of justice to treat the verdict of guilty which was wrongfully obtained as the basis for subjecting the applicant to a new trial on that charge.

6. I would grant special leave to appeal and allow the appeal.

DAWSON J.: The applicant, Leslie Maurice King, was charged on indictment, together with a man named Matthews, with the murder of his wife. The indictment also contained two counts of conspiracy to murder which were severed by the trial judge. The trial proceeded upon the count of murder alone.

2. The main witness for the Crown was a man named Siemsen, who had been given an indemnity against prosecution in relation to the murder, save as a principal in the first degree. Siemsen gave evidence that he was asked by King whether he, Siemsen, knew anyone who would be willing to kill King's wife. Siemsen, according to his evidence, subsequently engaged his brother upon the basis that he would be paid a total sum of $15,000 with a deposit of $5,000. The balance was to be paid from the proceeds of an insurance policy upon the wife's life. Subsequently, according to Siemsen, his brother attempted to inject King's wife with potassium cyanide by means of a syringe, but the needle bent and the attempt was unsuccessful. Shortly afterwards the brother died and Siemsen said that he told King that he, Siemsen, would finish the job. He gave evidence that he went to the wife's house armed with a sawn-off .22 rifle and broke in, but was unable to bring himself to kill her. He said that afterwards King spoke to him again and that he told King that Matthews might do it.

3. Siemsen's evidence was that King helped him to trace Matthews and that he, Siemsen, asked Matthews "if he knew anyone that would be willing to do a job on someone and he said he would check around for me". Subsequently, Siemsen contacted Matthews and Matthews said that he had found someone but that it would cost "(a)bout 15 thou., and they want at least a third up front". Siemsen said that he told King that someone had been found and that he needed a further deposit of $5,000. Again, the balance was to be paid from the proceeds of the insurance policy upon the wife's life. According to Siemsen, King handed the further deposit to him at a hospital in which King was a patient at the time. Previously Siemsen had been to the St. George Building Society to withdraw some money on King's behalf. He subsequently handed to Matthews the money which King had given him.

4. Siemsen said that he provided Matthews with a sawn-off rifle fitted with a silencer and that before he took it away Siemsen and Matthews tested the weapon by firing it a number of times into the ground. Matthews also requested Siemsen to obtain duplicate keys to the wife's car and Siemsen said that he obtained a set from King and handed them to Matthews. Over a period of some months Matthews kept in contact with Siemsen by telephone, mostly reversing the charges. Then, according to Siemsen, Matthews rang him at 3.00 a.m. one morning and said "I done it. Three low, one high". Matthews then asked for the balance of the money which, however, was not subsequently paid by Siemsen.

5. It was not in doubt that Mrs King had been murdered by someone. She had been shot four times by bullets from a .22 calibre rifle while she was at her home during the night. At the trial the Crown case was presented upon the basis that it was Matthews who actually killed the deceased. It was not suggested, either in the course of the trial or in the Crown prosecutor's address to the jury, that it was Siemsen himself or any other person who did so. Having regard to the form of indemnity given to Siemsen it was hardly to be expected that the Crown would contend that he was a principal in the first degree. On the first day of his summing up the trial judge directed the jury, in effect, that it was not open to them to bring in different verdicts in relation to King and Matthews: either they were both guilty or they were both not guilty upon the charge of murder. Notwithstanding the way in which the Crown case had been presented, the Crown prosecutor objected to this direction and submitted that it was open to the jury to be satisfied beyond reasonable doubt that there was an agreement between Siemsen and King to find someone to kill King's wife and that Siemsen did find someone who carried out the killing, but that they might fail to be satisfied that it was Matthews. The trial judge accepted the prosecutor's submission and on the second day of his summing up, amended the direction he had given the jury. He did so in the following terms:

"You remember yesterday I said to you that the
Crown case was such that in the case against King,
if you were not satisfied that it was Matthews who
did the killing and you thought it was somebody
else or it was a reasonable possibility that it was
somebody else, then King has to be acquitted. I
withdraw that. As a matter of law the position is
this, that if you are satisfied, firstly, that King
was a party to an agreement that his wife should be
killed by some other person and, secondly, that
that agreement did result in fact in the murder of
the deceased, whether at the hands of Matthews,
Siemsen or indeed any other person, then King is
liable to be convicted. I do not want to say
anything more about it."

6. The jury brought in a verdict of guilty against King but acquitted Matthews. King appealed to the New South Wales Court of Criminal Appeal, which allowed his appeal upon the basis that the trial had miscarried when, at the instance of the Crown, the trial judge had introduced for the first time in his summing up the possibility that some person other than Matthews had killed the deceased. The element of surprise involved in this course was held to have resulted in possible prejudice to King's case, his counsel having cross-examined Siemsen and addressed the jury in reliance upon the presentation of a case by the Crown that the person who killed the deceased was Matthews. Had King's counsel known that alternatively Siemsen or some other person unknown to the Crown was alleged to be the actual murderer, he may well have cross-examined or addressed in a different way.

7. No exception was taken before us to the finding of an irregularity or the quashing of the conviction. Indeed, it may be said that the direction given by the trial judge at the behest of the Crown involved such a change in the course of the trial at such a late stage that inevitably the conviction could not be allowed to stand. See Reg. v. Laird (1893) 14 NSWR 354; R. v. Thompson and Gamble (1925) 42 WN(N.S.W.) 71; McManamy v. Fleming (1889) 15 VLR 337; Gregory (1981) 77 Cr App R 41, at p 47; Falconer-Atlee (1973) 58 Cr App R 348, at pp 355-356; Cross and Channon (1971) 55 Cr App R 540, at pp.545-546. The submission made to us on behalf of the applicant was that the Court of Criminal Appeal erred in ordering that King be retried and that it should, instead, have directed that a verdict of acquittal be entered.

8. The power to order a new trial is contained in s.8(1) of the Criminal Appeal Act 1912 (N.S.W.) and is as follows:

"On an appeal against a conviction on indictment,
the court may, either of its own motion, or on the
application of the appellant, order a new trial in
such manner as it thinks fit, if the court
considers that a miscarriage of justice has
occurred, and, that having regard to all the
circumstances, such miscarriage of justice can be
more adequately remedied by an order for a new
trial than by any other order which the court is
empowered to make."

9. It is well established that the discretion to order a new trial should not be exercised when the evidence in the court below was not sufficiently cogent to justify a conviction or to allow the Crown to supplement a case which has proved to be defective. In particular, the Crown should not be given an opportunity to make a new case which was not made at the first trial: R. v. Wilkes [1948] HCA 22; (1948) 77 CLR 511, at p 518. If the verdict against King in this case was inconsistent with the verdict in favour of Matthews, then the Crown could properly succeed against King upon a retrial only by putting a new case. It certainly ought not be allowed to proceed in any retrial upon a basis inconsistent with the jury's verdict of acquittal of Matthews. However, it does not appear to me that the two verdicts given by the jury were inconsistent.

10. Although the Crown, in reliance upon s.346 of the Crimes Act 1900 (N.S.W.), charged both King and Matthews jointly as principals in the commission of the crime of murder, it in fact proceeded against Matthews as the principal and King as an accessory before the fact. Even where two persons are tried jointly upon the one charge as participants in the same degree, it does not inevitably follow that both must be convicted or both must be acquitted: Reg. v. Darby [1982] HCA 32; (1982) 148 CLR 668. An indictment charging two persons on the one count is both joint and several: Hale's Pleas of the Crown New 3rd ed. (1800) vol.I, p.46; Hawkins' Pleas of the Crown 8th ed. (1824) vol.II, p 331, s.89; Reg. v. Fenwick (1953) 54 SR(NSW) 147, at p 152; Reg. v. McConnell (1977) 1 NSWLR 714, at pp 720-721; Reg. v. Merriman (1973) AC 584. The evidence may be sufficient to prove the case against one accused beyond reasonable doubt, but be insufficient to prove the case against the other. In that event, the conviction of the one and the acquittal of the other involves no inconsistency. Of course, where there is no material distinction in the evidence admissible against each accused to establish an element to be proved against both, different verdicts may be inconsistent. Inconsistency appears only if the acquittal of one and the conviction of the other is to be accounted for by the making of different findings as to the common element.

11. In the present case, there would be inconsistency if the conviction of King and the acquittal of Matthews was to be accounted for by inconsistency in the findings as to whether Mrs King had been murdered. That was a common element which the prosecution sought to prove against both accused by the same evidence. But there is no reason to think that there was any inconsistency between the verdicts in the present case.

12. If, as in this case, the accessory before the fact is said to have procured the commission of the crime through an agent, the evidence against him is likely to have a different starting point from the evidence against the alleged principal. Evidence may be admitted to prove the complicity of the accessory in the crime which may be different from the evidence admitted to prove the complicity of the principal offender, although much of the evidence which is tendered to prove the actus reus of the principal offence is likely to be common to the case against each.

13. An exhaustive analysis of the evidence is not necessary to show that the Crown case against King was somewhat stronger than the case against Matthews. Whilst Siemsen was the main witness against both of them, the evidence which corroborated his story differed in relation to each accused.

14. Against King there was evidence of his separation from, and relationship with, his wife which was said to provide a motive. There was evidence of a claim made upon the insurance policy over his wife's life shortly after her death. There was evidence of the withdrawal of money from a bank account in a manner consistent with the payment of both deposits. And there was evidence of a set of car keys, provided by King to Siemsen and handed by him to Matthews, which were found in the wife's car after it had been stolen, allegedly by Matthews. There was ample evidence admissible against King alone to establish his complicity in the murder of Mrs King.

15. On the other hand there was corroboration of the evidence given by Siemsen against Matthews. There were disputed admissions to the police and there was evidence of reverse telephone calls made to Siemsen. In addition, there was evidence that cartridges recovered from the ground where the test firing of the rifle had allegedly taken place, were fired from the same weapon as that which was used to kill the deceased.

16. It may be conceded that, notwithstanding the differences in the evidence admissible against each accused, the evidence tending to establish the identity of the killer, apart from the admissions said to have been made by Matthews which were admissible only against him, was essentially the same in each case. But the identity of the principal offender was not an essential element in the proof of King's guilt. It was, of course, the issue in Matthews' case. Until his Honour amended his direction to the jury, the case had proceeded as though the identity of the principal offender was an essential element in the case against King, but that was something which was capable of correction and it was corrected. The case which was left to the jury against each accused was different, not only in the evidence admissible to support it but also in the substance of the allegation made.

17. The Crown during most of the trial presented its case on the basis that King was an accessory before the fact to a killing by Matthews. If that had been the case left to the jury then there would have been substance in the submission made on behalf of King that the jury's verdicts were inconsistent. For the case against King would then have been that Matthews was the principal offender and, that having been rejected by the jury in the case against Matthews, there could be no conviction of King as an accessory before the fact. But a different case against King was eventually, although belatedly, left to the jury as a result of the trial judge's redirection. The different case was that the murder of the deceased was at the hands of some person who may have been Matthews, Siemsen or someone else. The identity of the killer was not essential to King's guilt. That was a case which was open upon the pleading because King was simply charged as a principal. It was open upon the evidence because it was clearly possible for the jury to find that the deceased was murdered without being able to identify the killer. It was not the case which was presented by the Crown up to the point at which the redirection was given. While it was open on the evidence and on the indictment, it ought not to have been concealed until the last moment. For that reason King was entitled to have his conviction quashed. That, however, does not provide any basis for the submission that the verdicts returned by the jury were inconsistent, having regard to the direction which was ultimately given and in accordance with which it must be assumed that they reached their conclusions. It does not mean that the Crown case, as it was eventually put, was defective or that a new trial would give the Crown an opportunity to put a new case which was not made, however late in the piece, at the first trial. The Crown case against King, as it was presented in the end after the redirection given by the trial judge, left the identity of the actual killer at large and there is nothing in the verdict of acquittal entered in favour of Matthews which would require the new trial to be conducted upon a narrower basis.

18. The difficulties which arose in this case may well have been avoided had the Crown been required to turn its mind to them in the first place when framing the indictment against the accused. Section 346 of the Crimes Act 1900 (N.S.W.) provides that:

"Every accessory before the fact to any such felony
may be indicted, convicted, and sentenced, either
before or after the trial of the principal felon,
or together with such felon, or indicted,
convicted, and sentenced, as a principal in the
felony, and shall be liable in either case to the
same punishment as the principal felon, whether the
principal felon has been tried or not, or is
amenable to justice or not."

19. The conclusion must be, however, that there was no error on the part of the Court of Criminal Appeal and special leave to appeal should be refused.

ORDER