Osland v The Queen

HIGH COURT OF AUSTRALIA

GAUDRON, McHUGH, GUMMOW, KIRBY AND CALLINAN JJ

MARJORIE HEATHER OSLAND  APPELLANT

AND

THE QUEEN  RESPONDENT

Osland v The Queen (M14-1998) [1998] HCA 75
10 December 1998

ORDER

Appeal dismissed.

On appeal from the Supreme Court of Victoria

Representation:

J A Scutt with A C Thacker and F G Phillips for the appellant (instructed by Hale & Wakeling)

M S Weinberg QC with B Kayser for the respondent (instructed by Solicitor for Public Prosecutions (Victoria))

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Osland v The Queen

Criminal law – Murder – Acting in concert – Joint trial of two accused – Jury convicted one accused but unable to reach a verdict in respect of the other – Whether verdicts inconsistent such that conviction unsafe and unsatisfactory – Principles governing identification of inconsistency.

Criminal law – Complicity – Doctrine of concert – Understanding or arrangement between accused – Liability of one accused for acts performed by another – Whether dependent upon a common mental element – Whether affected by availability of a defence to, or other exculpatory feature in respect of, person performing the acts – Adequacy of trial judge's directions to jury.

Criminal law – Causation – Murder – Multiple acts contributing to death – Whether contribution of one accused sufficiently significant in own right to sustain causal link – Effect of Crimes Act 1958 (Vic), s 323 – Relevance of conduct of case.

Criminal law – Defences – "battered woman syndrome" – Whether a proper subject for expert evidence – Whether a sub-category of provocation or self‑defence, or a separate defence – Appropriateness of directions given to jury.

Criminal law – Evidence – Lies told by accused – Use to which evidence of lies may be put – Appropriate direction to be given to jury – Whether failure to direct resulted in a miscarriage of justice.

Criminal law – Evidence – Intercepted telephone conversations – Whether sufficiently probative to be admitted into evidence – Whether probative value outweighed by prejudicial effect.

R v Demirian [1989] VR 97 at 123-124, disapproved.
Crimes Act 1958 (Vic), s 323.

1. GAUDRON AND GUMMOW JJ.   Mrs Heather Osland and her son, David Albion, stood trial in the Supreme Court of Victoria charged with a single count of murder.  They were charged that, on 30 July 1991, they murdered Frank Osland, Mrs Osland's husband and David Albion's step-father.  The jury was unable to reach a verdict with respect to David Albion but convicted Mrs Osland of murder.

2. Mrs Osland appealed unsuccessfully to the Victorian Court of Appeal[1].  By the time of her appeal, David Albion had been retried and acquitted.  Mrs Osland now appeals to this Court.  One aspect of her appeal relates to the failure of the jury to convict her son.  On the prosecution case, it was he, alone, who struck the blow or blows that caused Mr Osland's death.

   [1]R vOsland [1998] 2 VR 636.

3. The prosecution case was that Mrs Osland and David Albion together planned to murder Mr Osland.  It was put that, in furtherance of their plan, they dug a grave for their intended victim during the day of 30 July 1991.  Later, on the evening of the same day and in furtherance of the plan alleged, Mrs Osland mixed sedatives[2] in with Mr Osland's dinner in sufficient quantity to induce sleep within an hour.  According to the prosecution case, David Albion carried the plan to finality after Mr Osland went to bed by fatally hitting him over the head with an iron pipe in the presence of Mrs Osland.  And later, he and Mrs Osland buried Mr Osland in the grave they had earlier prepared.

   [2]At trial, Dr Olaf Drummer testified to having found traces of the sedative Dothiepin, in the form of the prescription product Prothiaden, in the remains of the deceased.

4. Mrs Osland and David Albion both gave evidence at the trial.  Neither disputed that they dug a grave, although they called it "a hole"; that Mrs Osland mixed sedatives into her husband's dinner; that David Albion struck the blow or blows that killed Mr Osland; that they buried his body in "the hole" and, thereafter, acted as though he had simply disappeared.  Neither denied that they then took various steps to make it appear that Mr Osland had left the area without communicating with anyone.  To this end, Mrs Osland engaged in a series of deceptions, including reporting Mr Osland as a missing person.  Another aspect of the appeal involves a complaint that, although not requested to do so by counsel for Mrs Osland, the trial judge should have instructed the jury as to the use it might properly make of the lies that she told in connection with her husband's "disappearance".

5. Mrs Osland and David Albion each relied on self-defence and provocation.  Those defences were raised against an evidentiary background of tyrannical and violent behaviour by Mr Osland over many years but, according to evidence given by Mrs Osland and her son, escalating in the days prior to his death.  The prosecution accepted that Mr Osland had been violent and abusive towards Mrs Osland in the past but contended that that behaviour had ceased well before his murder.  That contention was made on the basis of certain intercepted telephone conversations to which Mrs Osland was a party.  In those conversations, which took place well after Mr Osland's death, Mrs Osland made statements to the effect that his violence had ceased some years before his "disappearance".  Another aspect of the appeal relates to the admission of evidence of other intercepted conversations.  Further reference will be made to those other conversations in due course.

6. Mrs Osland's evidence was that Mr Osland's violence, and her fear of it, continued up until the day of his death.  She and her son both gave evidence that, in the days prior to his death, Mr Osland ordered David Albion out of the house and said he would kill him if he did not go.  David Albion gave evidence that he thought of leaving, but feared for his mother's life if he did.  And in support of Mrs Osland's case, expert evidence was led of "the battered wife syndrome".  The use of that evidence and its relationship with self-defence and provocation are also in issue in this appeal.

7. In his evidence, David Albion claimed that he and his mother dug the hole on 30 July 1991 without any intention, at that stage, of killing Mr Osland.  Mrs Osland's evidence, although less clear, was to the same effect.  Mrs Osland and David Albion each gave different, but not necessarily inconsistent, accounts of what happened when Mr Osland came home that evening.  Mrs Osland said there was verbal abuse but added, in the course of her evidence, "I can't hear his words."  She said she later mixed the sedatives into Mr Osland's dinner to quieten him down.

8. On the other hand, David Albion recalled Mr Osland yelling at his mother, holding her against a wall and standing over her.  When he, David intervened, Mr Osland said he was going to kill him and hit him on the side of the head causing him to fall to the floor.  After that altercation, the atmosphere quietened somewhat.  A little later, according to David Albion, Mrs Osland said that she would "calm [Mr Osland] down".  Mr Osland, Mrs Osland and David Albion then had dinner together, although not harmoniously.  David Albion gave evidence that he thought Mrs Osland put the sedatives in Mr Osland's coffee.

9. Both Mrs Osland and David Albion gave evidence that, when Mr Osland went to bed, they became afraid as to what he would do in the morning when he realised he had been drugged.  They feared they would both be killed.  There was some discussion as to what they should do.  They apparently agreed to hit Mr Osland with a weapon of some kind.  David Albion got a piece of pipe.  Having told his mother that she was not strong enough to do it, David Albion then struck the fatal blow or blows in her presence.  The medical evidence was that Mr Osland's death resulted from gross fractures to his skull.  The case seems to have been conducted on the basis that death was instantaneous.  Mrs Osland gave evidence that, after the blow or blows were struck, she held Mr Osland's body down to stop it twitching.

   The jury's failure to convict David Albion

10. As already indicated, the prosecution case was that Heather Osland and David Albion were jointly responsible for Frank Osland's death.  And in certain respects, their cases were conducted on the basis that, if one was responsible, the other was equally so.  Thus, the trial judge instructed the jury that it did "not seem to be denied that it was the acts of the accused jointly that caused the death" of Frank Osland.

11. In other parts of his charge, the trial judge instructed the jury to consider the evidence against each accused separately and informed it that it might convict one and not the other.  He did not indicate any process of reasoning or of fact finding that might lead to that result[3].  However, no objection was taken to the directions or to the absence of any indication as to how the jury might convict one accused and not the other.  Nor was any complaint made with respect to these matters in the Court of Appeal.  It was contended in this Court, for the first time, that Mrs Osland's conviction is inconsistent with the jury's failure to convict her son, or, alternatively, that the directions given by the trial judge were deficient.

    [3]In the course of charging the jury, his Honour advised that it "should stand back and ... view the case against each accused separately, if for no other reason [than] that in the case of Mrs Osland a case has been put by her allied to self-defence and provocation that there are special features of her situation:  battered woman syndrome."  However, it was not then said that the jury might, because of that special feature of the case against Mrs Osland, convict one but not the other accused.

12. Before turning to the detail of the inconsistency argument, it is convenient to note that, so far as concerns the actual killing of Frank Osland, the evidence against Mrs Osland and David Albion was substantially the same.  With respect to self-defence and provocation, however, the evidence was different.  Accordingly, the respondent contended that it must be taken that it was that difference that led the jury to convict Mrs Osland without reaching a verdict against her son.  More precisely, it must be taken that the jury was satisfied that the prosecution had negatived provocation and self-defence in the case of Mrs Osland but could not decide if that was so in the case of David Albion.  Thus, the question to be determined is whether, in those circumstances, the jury's conviction of Mrs Osland was inconsistent with its failure to convict David Albion.

13. Initially, Mrs Osland's counsel put the inconsistency argument on the hypothesis that, though an accessory, she was charged as a principal offender pursuant to s 323 of the Crimes Act 1958 (Vic). That section provides:

    "    A person who aids, abets, counsels or procures the commission of an indictable offence may be tried, indicted or presented and punished as a principal offender."

14. The conviction of a person charged as accessory is not necessarily inconsistent with the acquittal or failure to convict the person charged as the principal offender.  That is because the evidence admissible against them concerning the commission of the offence may be different[4].  Even so, an accessory cannot be convicted unless the jury is satisfied that the principal offence was committed[5].  Thus, if two people are tried together as principal and accessory and the evidence as to the commission of the crime is the same against both, acquittal of the person charged as principal is inconsistent with the conviction of the other[6].  However, that does not avail Mrs Osland.  She was not tried as an accessory.  Rather, she and David Albion were together tried as principals or as joint perpetrators of the murder of Frank Osland.

    [4]See King v The Queen (1986) 161 CLR 423 at 433-436 per Dawson J (with whom Gibbs CJ, Wilson and Brennan JJ agreed); Sweetman v Industries and Commerce Department [1970] NZLR 139 at 148 per Richmond J; R v Andrews Weatherfoil Ltd, Sporle and Day (1971) 56 Cr App R 31 at 40.

    [5]Surujpaul v The Queen [1958] 1 WLR 1050 at 1053; [1958] 3 All ER 300 at 301; R v Anthony [1965] 2 QB 189 at 192; Sweetman v Industries and Commerce Department [1970] NZLR 139 at 148; Turner, Kenny's Outlines of Criminal Law, 18th ed (1962) at 107; Gillies, Criminal Law, 4th ed (1997) at 158.

    [6]See Surujpaul v The Queen [1958] 1 WLR 1050 at 1053; [1958] 3 All ER 300 at 301; R v Anthony [1965] 2 QB 189 at 192; Sweetman v Industries and Commerce Department [1970] NZLR 139 at 148; R v Darby (1982) 148 CLR 668 at 685 per Murphy J; King v The Queen (1986) 161 CLR 423 at 434 per Dawson J; Smith and Hogan, Criminal Law, 8th ed (1996) at 152-153; Gillies, Criminal Law, 4th ed (1997) at 158.

15. A person may be guilty of murder as principal even though his or her act is not the immediate cause of death.  A person who, with intent to kill, does some act which substantially contributes[7] to the death of another, may be guilty of murder notwithstanding that the immediate cause of death is the act of another person[8] or, even, the deceased's own act[9].  And the same is true if the person does the act, not with intent to kill, but with intent to inflict grievous bodily harm or with knowledge that it is probable that death or grievous bodily harm will result although indifferent to that consequence[10].

    [7]Royall v The Queen (1991) 172 CLR 378 at 389 per Mason CJ, 398, 399 per Brennan J, 411, 412 per Deane and Dawson JJ, 423 per Toohey and Gaudron JJ, see discussion at 440, 442, 443-444 per McHugh J.

    [8]See R v Macklin, Murphy and Others (1838) 2 Lewin CC 225 [168 ER 1136]; R v Haines (1847) 2 Car & K 368 [175 ER 152]; R v Jackson (1857) 7 Cox CC 357 at 360 per Bramwell B; R v Macdonald and Macdonald (1904) St R Qd 151 at 169, 171 per Cooper CJ, 174 per Real J; Turner, Kenny's Outlines of Criminal Law, 18th ed (1962) at 105; cf Mohan v The Queen [1967] 2 AC 187 at 194-195; R v Pagett (1983) 76 Cr App R 279 at 285-288; Royall v The Queen (1991) 172 CLR 378 at 398 per Brennan J, 441, 444 per McHugh J; R v Millward [1994] Crim LR 527; Smith and Hogan, Criminal Law, 8th ed (1996) at 154, 157.

    [9]Royall v The Queen (1991) 172 CLR 378. In that case, this Court upheld a decision of the New South Wales Court of Appeal dismissing an appeal from a conviction for murder where the immediate cause of death was injuries sustained in a fall from an apartment bathroom window, the evidence supporting the conclusion either that the victim was trying to escape attack or that she jumped fearing life-threatening violence. Royall is a recent instance of a line of authority that a person is guilty of murder who intends, or is recklessly indifferent to the probability that his or her actions will cause grievous bodily harm or death, where death in fact results from an attempt by the deceased to escape violence feared to be life-threatening:  R v Pitts (1842) Car & M 284 [174 ER 509]; R v Grimes and Lee (1894) 15 NSWR(L) 209; R v Curley (1909) 2 Cr App R 96; see discussion in Pagett (1983) 76 Cr App R 279 at 289.

    [10]See R v Crabbe (1985) 156 CLR 464 at 469-470; Royall v The Queen (1991) 172 CLR 378 at 394-395 per Mason CJ, 400 per Brennan J, 415, 416-417 per Deane and Dawson JJ, 430-432 per Toohey and Gaudron JJ, 452, 454, 456 per McHugh J.

16. There is no necessary inconsistency between the conviction of a person who substantially contributes to the death of another and the failure to convict or, even, the acquittal of the person whose act is the immediate cause of death.  For example, if two people set upon another and one holds the victim down while the other, who is legally insane, inflicts wounds which cause death, the first may properly be found guilty of murder even though the other is found not guilty by reason of insanity[11].

    [11]See Matusevich v The Queen (1977) 137 CLR 633 at 637-638 per Gibbs J.

17. Moreover, it is logically possible for a person to be found guilty of murder on the basis that his or her acts substantially contributed to the death of another even though the immediate cause of death was a wound inflicted by a person found not guilty of murder but guilty of manslaughter.  Suppose that, while acting under provocation, one person strikes another and that another person, not acting under provocation, renders assistance by holding the victim down enabling the first person to inflict wounds which cause death.  There is no necessary inconsistency in that situation if a jury finds the person who gave assistance guilty of murder yet finds the person who inflicted the wounds not guilty of murder but guilty of manslaughter[12].  Nor is there any necessary inconsistency if the jury is unable to reach a verdict against the person who inflicted the wounds because it cannot agree whether he or she should be found guilty of murder or manslaughter - a consideration which may explain the failure of the jury to convict David Albion in this case.

    [12]See in relation to provocation, R v Pearson unreported, Court of Appeal (UK), 11 November 1991; see also Williams, Textbook of Criminal Law, 2nd ed (1983) at 373-374; R v Bourne (1952) 36 Cr App R 125, where the appellant was convicted of abetting the commission by his wife of bestiality with a dog, although the wife, having acted under duress, was not charged. The reasoning in Bourne has been described as suggesting "that there are cases in which a person may be liable for aiding and abetting another to commit a crime, although the actual perpetrator is not criminally responsible":  Matusevich v The Queen (1977) 137 CLR 633 at 638 per Gibbs J.

18. To convict a person of murder on the basis that his or her act substantially contributed to the death of another, the jury must be satisfied beyond reasonable doubt that the act was done with intent to kill or with such other intention or state of mind as is necessary to constitute murder[13].  According to the evidence, the only act done by Mrs Osland which might be thought to have contributed to the death of her husband was the mixing of sedatives into his dinner.  However, the jury was never asked to determine whether that act substantially contributed to his death.  In fact, the trial judge excluded that possibility by directing that "it [could] only be a blow with the instrument [that] ... was [the] operative and substantial cause [of death]".  Moreover, the jury was not asked to make any finding as to the intention with which Mrs Osland mixed the sedatives into her husband's dinner.  The case was simply not conducted on the basis that Mrs Osland's acts substantially contributed to her husband's death.

    [13]Royall v The Queen (1991) 172 CLR 378 at 391 per Mason CJ, 400 per Brennan J, 415, 416-417 per Deane and Dawson JJ, 430-432 per Toohey and Gaudron JJ, 452, 454, 456 per McHugh J; Victoria retains the common law categories of murder, the Crimes Act 1958 (Vic) prescribing only punishment of the offence: s 3.

19. It was suggested for the respondent that Mrs Osland's conviction is consistent with the jury's failure to convict her son on the basis that he was her "innocent agent"[14].  It is not in doubt that a person may be convicted of murder and the person whose acts caused death acquitted if that second person was the "innocent agent" or "innocent instrument" of the first[15].  Again, however, the trial was not conducted on that basis.  Nevertheless, it was argued that, if Mrs Osland's conviction could be sustained on the basis that David Albion was her "innocent agent", her appeal should be dismissed[16].  It was put that a similar course was taken by the English Court of Appeal in R v Cogan and Leak[17].  Whether or not that be so[18], principle requires that neither this Court nor a court of criminal appeal adopt that approach.

    [14]Transcript of proceedings, Friday 24 April 1998 at 146, 168-169, 181.

    [15]White v Ridley (1978) 140 CLR 342 at 346 per Gibbs J, 353-354 per Stephen J (Aickin J agreeing at 363); R v Hewitt [1997] 1 VR 301 at 311-313 per Winneke P; Williams, Textbook of Criminal Law, 2nd ed (1983) at 368-369; see commentary of Professor Sir John Smith QC accompanying R v Millward [1994] Crim LR 527 at 530; Smith and Hogan, Criminal Law, 8th ed (1996) at 128.

    [16]See transcript of proceedings, Friday 24 April 1998 at 146, 168-169, 181.

    [17][1976] QB 217. See transcript of proceedings, Friday 24 April 1998 at 181.

    [18]Although the result in R v Cogan and Leak has been explained on the "innocent agent" basis by some commentators, it is to be observed that that proposition is not found expressed in the reasons for judgment.  The reasoning attributed to R v Cogan and Leak has been described as "demonstrably unsound" (Williams, Textbook of Criminal Law, 2nd ed (1983) at 371) and "contrary to principle" (Smith and Hogan, Criminal Law, 8th ed (1996) at 128).

20. If a trial has miscarried, a guilty verdict cannot be upheld on a basis not left to the jury because that would be to trespass on the constitutional function of the jury. Thus, in Ross v The King[19], where the Full Court of the Supreme Court of Victoria had held that there had been a misdirection as to the elements of the offence of murder but that the misdirection did not vitiate the appellant's conviction because it could be sustained on another basis, Isaacs J said:

    "... the [Full] Court ... now proceeds to hold that if the jury had asked, and had been directed, on another ground altogether which they had not in fact been asked to consider and cannot be presumed to have considered, they would necessarily have found the same verdict.  And therefore it is held that the verdict - the totally different verdict - they did find is to stand ... [t]he conclusion assumes what I respectfully maintain a Court can never properly hold as a matter of law ... that, where a man says he had no intention of killing but merely of stopping cries, he had nevertheless in fact the intention of doing bodily harm.  That is essentially the function of a jury"[20].

    [19](1922) 30 CLR 246.

    [20](1922) 30 CLR 246 at 268-269. See also to the same effect at 255-256 per Knox CJ, Gavan Duffy and Starke JJ.

21. It follows that Mrs Osland's conviction cannot be upheld either on the basis that her act of mixing sedatives in her husband's dinner substantially contributed to his death or on the basis that David Albion was her "innocent agent".  If her conviction is to be upheld, it can only be upheld on the basis that was left to the jury, namely, that Mr Osland was killed by David Albion pursuant to an understanding or arrangement with his mother that, together, they would kill him.

22. It will shortly be necessary to turn to the principles that hold a person guilty for a crime committed pursuant to an understanding or arrangement with another that, together, they will commit the crime in question, or, as it is sometimes said, where they act in concert[21] or pursuant to a common purpose[22].  For the moment, however, it is sufficient to note that those principles allow - as the respondent accepts - that Mrs Osland could only be convicted if the jury was satisfied that David Albion killed his step-father pursuant to an understanding or arrangement with her that, together, they would kill him.  But if satisfied of that, how could it fail to convict David Albion?

    [21]Matusevich v The Queen (1977) 137 CLR 633 at 638 per Gibbs J, 645 per Mason J, 648 per Murphy J, 661 per Aickin J.

    [22]McAuliffe v The Queen (1995) 183 CLR 108. Note that "common purpose" may give rise to criminal liability in two distinct situations: (1) where the parties have a common purpose to commit a particular crime which purpose is carried into effect; (2) where one of the parties, in carrying out their common purpose, commits another crime and that other crime is within the scope of that purpose. As to the latter, see Johns v The Queen (1980) 143 CLR 108 and McAuliffe at 114-115.

23. It was contended for the respondent that the jury might convict Mrs Osland consistently with its failure to convict David Albion because it was open to it to find that, in killing his step-father, David Albion was carrying out an understanding or arrangement with his mother even if it was possible that he was also acting under provocation or in self-defence[23].  To analyse that argument, it is necessary to turn to the principles which govern the liability of those who act in concert to commit a crime.

    [23]Transcript of proceedings, Friday 24 April 1998 at 140-141.

24. In the joint judgment in McAuliffe v The Queen, it was said[24]:

    "The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party:  in the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of a principal in the second degree where that party, being present at the scene, aids or abets its commission[25].  But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others.  Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime.  The understanding or arrangement need not be express and may be inferred from all the circumstances.  If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission[26]."

    It is to be observed that in this passage reference to presence at the scene was made with respect to the case of a principal in the second degree.  The reference was not repeated when dealing with liability established by reason of a common purpose.  Rather, in a footnote, the Court, by way of comparison, referred to the statement of principle by Smith J in R v Lowery and King (No 2)[27].  Smith J did propound the principle in terms involving a presence at the scene of a crime.

    [24](1995) 183 CLR 108 at 113-114 per Brennan CJ, Deane, Dawson, Toohey and Gummow JJ.

    [25]See Giorgianni v The Queen (1985) 156 CLR 473.

    [26]cf R v Lowery and King (No 2) [1972] VR 560 at 560 per Smith J.

    [27][1972] VR 560 at 560.

25. It is necessary at the outset to note an argument made by counsel for Mrs Osland that the principle discussed above does not direct the conclusion that a person present when a crime is committed by another pursuant to their understanding or arrangement to commit that crime together is guilty as principal rather than as accessory.  In this regard, counsel relied on a passage in the joint judgment of McGarvie and O'Bryan JJ in R v Demirian[28].  In that case, which was decided before McAuliffe, their Honours referred to a number of cases, including Johns v The Queen[29], in which, they said, some accused persons, who were "acting in concert at the scene of [a] crime", had been referred to as "principals in the second degree or accessories"[30].  Their Honours added:

    "No case was cited ... in which a person who did not actually perpetrate, or was not one of those who actually perpetrated, the crime, but who acted in concert with the actual perpetrator at the time and place of the crime, was held to be a principal offender.  None of the cases described by Lanham[31] as cases in which those acting in concert while present at the offence were 'in effect' treated as principals in the first degree, decide that as a matter of law such persons are necessarily principals in the first degree."[32]

    [28][1989] VR 97 at 123.

    [29](1980) 143 CLR 108.

    [30]The cases cited are R v Kalinowski; R v Timbury (1930) 31 SR (NSW) 377; R v Surridge; R v Surridge; R v Harris (1942) 42 SR (NSW) 278; R v Smith [1963] 1 WLR 1200; [1963] 3 All ER 597; R v Vandine [1970] 1 NSWR 252.

    [31]Referring to Lanham, Complicity, Concert and Conspiracy, (1980) 4 Criminal Law Journal 276.

    [32][1989] VR 97 at 123-124.

26. It was not necessary in any of the cases to which McGarvie and O'Bryan JJ referred in Demirian to decide whether the person present at the scene of the crime was guilty as principal or as accessory. And the cases in this area have to be read with an understanding that, as a result of provisions such as s 323 of the Crimes Act 1958 (Vic)[33], it is rarely necessary to determine that question.  Moreover, in Matusevich v The Queen, Gibbs J apparently proceeded on the basis that a person who is present when another commits a crime pursuant to a common design that they commit it together is guilty as principal not as accessory[34].

    [33]Section 323 of the Crimes Act 1958 (Vic) provides:

    "     A person who aids, abets, counsels or procures the commission of an indictable offence may be tried, indicted or presented and punished as a principal offender."

    Provisions of substantially equivalent operation are in force in each State and Territory:  Crimes Act 1900 (NSW), ss 345-346; Criminal Law Consolidation Act 1935 (SA), s 267; Criminal Code Act 1899 (Q), ss 7-9, 10A; Criminal Code Act Compilation Act 1913 (WA), ss 7-9; Criminal Code Act 1924 (Tas) ss 3-5; Criminal Code Act 1983 (NT), ss 8-10, 12; Crimes Act 1900 (ACT), s 345.

    [34](1977) 137 CLR 633 at 636-637.

27. More to the point, principle dictates the conclusion that those who form a common purpose to commit a crime together are liable as principals if they are present when the crime, or any other crime within the scope of the common purpose[35], is committed by one or more of them.  The crime having been committed in accordance with the continuing understanding or arrangement, all are equally guilty as principals regardless of the part played by each[36].  That result follows from the reasoning in McAuliffe v The Queen[37].  Indeed, that reasoning would appear not to require presence at the scene of all parties to the continuing common purpose if the criteria specified in that reasoning otherwise are satisfied.  The appellant's submissions on this aspect of the case proceeded upon a false basis.

    [35]McAuliffe v The Queen (1995) 183 CLR 108 at 114.

    [36]McAuliffe v The Queen (1995) 183 CLR 108 at 114.

    [37](1995) 183 CLR 108 at 113-114.

28. In this case, the evidence clearly permitted of a finding that Mrs Osland and David Albion entered into an "understanding or arrangement that together" they would kill Mr Osland.  It also permitted of a finding that Mrs Osland was present when Mr Osland was killed.  Thus, the question to be determined is whether it was open to the jury to find that when he killed his step-father, David Albion was acting pursuant to an understanding or arrangement with his mother that, together, they would kill Frank Osland even though unable to decide whether he may have acted in self-defence or as a result of provocation.

29. A similar question arose in R v Pearson[38], the facts of which are a little like those in this case.  In Pearson, two brothers were charged with murdering their father, a violent and abusive man.  The father assaulted the younger son and, shortly afterwards, fell asleep.  The brothers then decided to kill him.  The elder brother struck him twice around the head with a sledgehammer, probably without killing him.  The younger brother then struck two further blows.  The father died later that night.  Both brothers raised provocation[39].  In the result, the jury convicted the elder brother of murder and the younger of manslaughter[40].

    [38]Unreported, Court of Appeal (UK), 11 November 1991.

    [39]R v Pearson unreported, Court of Appeal (UK), 11 November 1991 at 1-2.

    [40]R v Pearson unreported, Court of Appeal (UK), 11 November 1991 at 1.

30. In Pearson, the Court of Appeal declined to take the view that provocation rendered the notion of joint enterprise inapplicable in that case.  Rather, it was said that it was possible for the "jury to find that the joint enterprise that undoubtedly existed was ... one where one defendant might have been provoked to the requisite extent whilst another was not."[41]

    [41]R v Pearson unreported, Court of Appeal (UK), 11 November 1991 at 2-3.

31. Reference was made in Pearson to R v McKechnie, Gibbons and Dixon[42], another decision of the Court of Appeal involving a joint enterprise.  In that case, the victim died as the result of the acts of one of the persons charged with his murder[43].  That person raised provocation[44] and was convicted of manslaughter[45].  It was said that the others, who had been parties to the destruction of the victim's property but not to the attack on his person, could not be guilty of any offence relating to the physical attack because "the jury's finding that [the assailant] was or may have been provoked …  render[ed] impossible any notion of joint enterprise"[46].

    [42](1992) 94 Cr App R 51.

    [43]The immediate cause of death was an ulcer which could not be treated surgically because of the head injuries inflicted on the victim: (1992) 94 Cr App R 51 at 53.

    [44]R v McKechnie, Gibbons and Dixon (1992) 94 Cr App R 51 at 54.

    [45]R v McKechnie, Gibbons and Dixon (1992) 94 Cr App R 51 at 56.

    [46]R v McKechnie, Gibbons and Dixon (1992) 94 Cr App R 51 at 60.

32. It was said in Pearson that "whilst [the proposition in McKechnie] was no doubt appropriate to the facts of [that case] it [was] not to be taken as a pronouncement of general effect"[47].  It is suggested in a commentary on Pearson[48] that the point of distinction between Pearson and McKechnie is that, in Pearson, the provocation "had been given before the parties embarked on the enterprise."[49]  It is also suggested in that commentary that provocation brings a joint enterprise to an end[50].

    [47]Unreported, Court of Appeal (UK), 11 November 1991 at 2.

    [48][1992] Crim LR 193 at 194.  See, also, to the same effect, Smith and Hogan, Criminal Law, 8th ed (1996) at 150.

    [49][1992] Crim LR 193 at 194.

    [50][1992] Crim LR 193 at 194.

33. The point of distinction, in our view, between Pearson and McKechnie is that McKechnie was, whereas Pearson was not, a case in which it was argued that criminal liability attached to a person who did not participate in the actus reus of the offence.  In Pearson, both accused participated in the acts causing death.  Alternatively, the acts of the elder brother substantially contributed to his father's death.  As already explained, there is no inconsistency if, in either of those situations, one person is found guilty of murder and the other, who acted under provocation, is found guilty of manslaughter.  However, different considerations apply when it is sought to attach criminal liability to a person who did not actively participate in the act causing death.  He or she is guilty of murder as principal only if the person whose acts caused death acted pursuant to an understanding or arrangement with the first person that, together, they would kill the deceased.

34. A person cannot act pursuant to an understanding or arrangement with another that, together, they will kill a third person and, at the same time, act under provocation.  That is because provocation only arises where there is some act of the deceased which results in the loss of self-control to the point of committing the act which caused death.  In that situation, the accused cannot also be taken to have acted so as to give effect to some prior understanding or arrangement with respect to the victim's death.  A fortiori, if he or she is acting in self-defence in response to some threat or attack by the deceased.

35. As already indicated, the jury's failure to convict David Albion is to be taken to have resulted from its inability to reach a decision whether or not the prosecution had negatived self-defence and provocation.  Unless both were negatived, there was no basis on which the jury could determine that, in killing his step-father, David Albion was acting pursuant to an understanding or arrangement with his mother that, together, they would kill him.  And only if it made that finding, could it convict Mrs Osland.  It follows that the jury's failure to convict David Albion reveals a flaw in reasoning which requires that Mrs Osland's conviction be set aside.

    David Albion's subsequent acquittal

36. Had the jury acquitted David Albion or, even, found him guilty of manslaughter when he stood trial with his mother, consistency may have required that a verdict of acquittal now be entered with respect to Mrs Osland.  However, the jury simply failed to convict David Albion and consistency with that outcome requires only that her conviction be set aside.  It was nevertheless contended by counsel for Mrs Osland that, consistent with her son's acquittal at his subsequent trial, a verdict of acquittal should now be entered for Mrs Osland.

37. In earlier times, consistency of verdicts was a matter to be determined solely by reference to the court record[51].  Were that still the case, Mrs Osland's conviction on the basis of the joint enterprise alleged by the prosecution could not stand consistently with David Albion's acquittal.  In DPP v Shannon[52], however, Lord Salmon expressed the view that, as "courts are no longer obliged to approach a conviction in blinkers with their eyes directed to nothing but the record", the old consistency rule had "outlived its usefulness and should … be swept away"[53].  In his Lordship's view the question of consistency should be approached on the basis that an acquittal may mean either that the accused is innocent or that the evidence is insufficient to lead to a finding of guilt, and, that its only effect, in law, "is that the accused can never again be brought before a criminal court and tried for the same offence."[54]

    [51]DPP v Shannon [1975] AC 717 at 770 per Lord Salmon.

    [52][1975] AC 717.

    [53][1975] AC 717 at 771.

    [54][1975] AC 717 at 772.

38. The approach taken by Lord Salmon in Shannon was adopted by this Court in R v Darby[55] in relation to the offence of conspiracy.  It was held in that case that "the conviction of a conspirator whether tried together with or separately from an alleged co-conspirator may stand notwithstanding that the latter is or may be acquitted unless in all the circumstances of the case his conviction is inconsistent with the acquittal of the other person."[56]

    [55](1982) 148 CLR 668.

    [56](1982) 148 CLR 668 at 678 per Gibbs CJ, Aickin, Wilson and Brennan JJ.

39. In point of principle, there is no difference between conspiracy and any other offence where criminal liability is said to attach by reason of an agreement to commit the crime, as distinct from participation in the actus reus of the offence[57].  That being so, there is no necessary inconsistency between Mrs Osland's conviction, in the event of a further trial, and her son's acquittal.  It follows that his acquittal provides no basis for the entry of a verdict of acquittal for Mrs Osland.

    [57]See R v Darby (1982) 148 CLR 668 at 685 per Murphy J.

40. Because there must be an order for a new trial, it should be emphasised that, if there is a retrial, the jury should be instructed that Mrs Osland can be convicted of murder on the basis of a joint enterprise with David Albion only if the jury is satisfied beyond reasonable doubt that he killed his step-father pursuant to an understanding or arrangement with his mother that, together, they would kill him and not while he was acting under provocation or in self-defence.  Of course, if Mrs Osland raises provocation or self-defence in relation to her actions, the jury will need to be instructed appropriately with respect to those issues.

41. As there must be an order for a new trial, it is appropriate to say something of some other matters raised in other grounds of appeal.  However, it is unnecessary to express a view whether any of those matters could have constituted a miscarriage of justice, in the sense of depriving Mrs Osland of a chance of acquittal that was fairly open[58].

    [58]Mraz v The Queen (1955) 93 CLR 493 at 514 per Fullagar J.

    Lies as to Mr Osland's "disappearance"

42. As already indicated, Mrs Osland engaged in a series of deceptions to conceal her husband's death and give the impression that he had simply disappeared.  The jury was not directed that it might treat her conduct as evidence of guilt.  Accordingly, it was not directed in the manner required by Edwards v The Queen[59].

    [59]So far as is presently relevant, it was held in Edwards that, where a lie is relied on to prove guilt, the trial judge must first identify the lie, and the circumstances and events relied on by the Crown to indicate that it constitutes an admission against interest. Secondly, the jury must be told it may take the lie into account only if satisfied, having regard to those circumstances and events, that the lie reveals the accused's knowledge of the offence charged or an aspect of it. Thirdly, the jury must be told that there may be reasons other than realization of guilt why the accused told the lie. Fourthly, the jury should then be told that if it accepts the lie was told for a reason other than realization of guilt, it cannot regard the lie as an admission against interest: (1993) 178 CLR 193 at 210-211 per Deane, Dawson and Gaudron JJ.

43. Although the jury was not instructed that Mrs Osland's lies might be evidence of her consciousness of guilt, there was a real risk that it might reason that, because she lied about her husband's disappearance, she must have known he had been the victim of premeditated murder.  Indeed, the prosecution suggested as much, inviting the jury to find that her conduct was not that "of a person who had killed somebody with lawful justification or excuse."

44. Where, as here, there is a risk that a jury might treat lies as evidence of guilt, the preferable course is for the trial judge to ascertain precisely what use the prosecution contends may be made of the evidence in question.  And if the evidence is to be left to the jury as evidence of guilt, it should be instructed as required by Edwards v The Queen[60].  If not, it should be instructed that the evidence is relevant only to the credit of the accused.  Only by adopting that course can a trial judge guard against "a perceptible risk of injustice"[61].

    [60](1993) 178 CLR 193 at 210-211 per Deane, Dawson and Gaudron JJ.

    [61]See, for example, McKinney v The Queen (1991) 171 CLR 468 at 480 per Brennan J; BRS vThe Queen (1997) 71 ALJR 1512 at 1525 per Gaudron J; 148 ALR 101 at 119. See also Bromley v The Queen (1986) 161 CLR 315 at 325 per Brennan J.

45. Although it is not necessary to express a view on the matter, it is difficult, if not impossible, to conclude that the trial judge's failure to follow the course indicated above could have resulted in a miscarriage of justice in this case.  Counsel for Mrs Osland did not seek any clarification as to the use that might be made of the evidence of Mrs Osland's conduct.  And she sought no direction with respect to it.  It is difficult to resist the inference that she took the view that there was nothing to be gained by raising the matter.

    The intercepted telephone conversations

46. It was argued that the evidence of intercepted conversations between Mrs Osland and her daughter, Erica, on 22 and 23 December 1994 should not have been admitted because those conversations were not probative of any matter in issue.  Alternatively, it was put that they were of such little probative value they should have been excluded.

47. The first conversation in question took place in a context in which Mrs Osland believed that her son, Paul, who had been told of the events surrounding Mr Osland's death by David Albion, had provided that information to police.  In that conversation, Erica informed her mother that she had told Paul that, if he stood up in court against his mother, "he's gonna get knocked".  In the second conversation, they returned to that subject and this exchange occurred:

    Erica:"… I could then turn around and well, you say anything incriminating against mum and David, I know for a fact that you are going to get knocked Paul."

    Mrs Osland:"And you're going to get bashed and you are also going to get the shit bashed out of you now for even speaking against your mother."

    Erica:                  "Yeah I know cause he is."

    Mrs Osland:       "I know he is.  If I had the contacts I'd do it myself …"

    Erica:                  "It's lucky I know people."

    Mrs Osland:       "I know, but I would have it done myself as well."

48. The parts quoted from those conversations are capable of constituting evidence of consciousness of guilt.  As such, however, they should have been the subject of a direction similar to that required where lies are relied upon to prove guilt.  In particular, the jury should have been instructed that it might take those parts of the conversations into account in proof of Mrs Osland's guilt only if satisfied that they revealed her knowledge that her husband had been murdered in cold blood and not as she had claimed.  Moreover, it should have been told that there might be other reasons for Mrs Osland's statement to her daughter, including, perhaps, family loyalty, and that if it accepted that the statement was made for a reason unconnected with Mrs Osland's consciousness of her guilt of the premeditated murder of her husband, the statement should not be taken into account.  The failure to give a direction would ordinarily constitute a miscarriage of justice.  But as we have earlier indicated, it is not necessary to decide that issue in this case.

49. In the second conversation, Mrs Osland also gave an account of the digging of "the hole".  This exchange occurred:

    Mrs Osland:"The chook was crowin' all the time.  We spent all day.  We sat and planned it for a week."

    Erica:                  "Did ya?"

    Mrs Osland:       "Yep.  And then he goes and tells fucken Paul."

    That exchange was clearly admissible, being directly relevant to the existence of the joint plan alleged by the prosecution.  And it was not necessary for the trial judge to give any special direction as to the use to which it might be put.  There was, thus, no error in the trial process in relation to that conversation.

    Battered wife syndrome, provocation and self-defence

50. Evidence as to what has come to be known as "the battered wife syndrome" was given by Dr Kenneth Byrne, a clinical and forensic psychologist.  That evidence was led without objection.  Dr Byrne deposed as to characteristic patterns of behaviour in relationships involving physical, psychological or sexual abuse and characteristic reactions on the part of women in those relationships.  Dr Byrne, who interviewed Mrs Osland on a number of occasions, read the transcript of her evidence-in-chief and was present in court when she was cross‑examined, also testified that her evidence of her relationship with her husband was consistent with it having been a battering relationship.  And he expressed the opinion that Mrs Osland fitted within the battered wife syndrome.

51. It is important to note some matters which, according to Dr Byrne's evidence, are characteristic of battered women, but not necessarily present in all cases:

    1.    they are ashamed, fear telling others of their predicament and keep it secret.

    2.    they tend to relive their experiences and, if frightened or intimidated, their thinking may be cloudy and unfocussed.

    3.    they have an increased arousal and become acutely aware of any signal of danger from their partner.

    4.    they may stay in an abusive relationship because they believe that, if they leave, the other person will find them or take revenge on other members of the family.

    5.    in severe cases, they may live with the belief that one day they will be killed by the other person.

    Dr Byrne also gave evidence that abusive relationships are not likely to change without outside help.

52. Counsel for Mrs Osland contended that the trial judge should have related Dr Byrne's evidence to the law of provocation.  Additionally, it was argued that, self-defence having been raised, the jury should have been instructed that the "evidence may be of use in understanding ... why an abused woman might remain in an abusive relationship ... the nature and extent of the violence that may exist in a battering relationship ... the accused's ability to perceive danger from her abuser, and ... whether the accused believed on reasonable grounds that she could not otherwise preserve herself from death or grievous bodily harm."[62]

    [62]Quoting the headnote to R v Malott (1998) 155 DLR (4th) 513. The quoted part of the headnote summarises the judgment of Major J (with whom Lamer CJC, Cory, McLachlin and Iacobucci JJ agreed) at 521-522.

53. Before turning to the argument put by counsel for Mrs Osland, it is convenient to consider the admissibility of Dr Byrne's evidence.  Expert evidence is admissible with respect to a relevant matter about which ordinary persons are "[not] able to form a sound judgment ... without the assistance of [those] possessing special knowledge or experience in the area" and which is the subject "of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience"[63].

    [63]R v Bonython (1984) 38 SASR 45 at 46-47 per King CJ. See also Clark v Ryan (1960) 103 CLR 486 at 491 per Dixon CJ; R v Turner [1975] QB 834 at 841, approved in Murphy v The Queen (1989) 167 CLR 94 at 111 per Mason CJ and Toohey J, 130 per Dawson J; Farrell v The Queen (1998) 72 ALJR 1292 at 1295 per Gaudron J; 155 ALR 652 at 655.

54. The evidence of Dr Byrne was that there is a reliable body of knowledge and experience with respect to persons living in abusive relationships based on research initially undertaken in the United States of America by Dr Lenore Walker[64].  And it was Dr Byrne's evidence that that knowledge reveals a pattern of responses or reactions on the part of battered women, including those to which reference has already been made.  Certain of those responses are contrary to what an ordinary person might expect.  For example, an ordinary person would very likely reason that, if the woman concerned did not report the violent and abusive behaviour or stayed in the relationship, it was not one involving violence or abuse - or, at least, not violence or abuse of the severity claimed.  And, in this case, the prosecution suggested exactly that of the later part of the relationship between Mrs Osland and her husband.

    [64]See Walker, The Battered Woman, (1979); Walker, The Battered Woman Syndrome, (1984). The reasons for judgment of Wilson J in R v Lavallee [1990] 1 SCR 852 summarise the research collected by Dr Walker in those texts: at 878-880, 882, 887-888.

55. Quite apart from reactions bearing on the truthfulness of an accused person's account of an abusive relationship, the ordinary person is not likely to be aware of the heightened arousal or awareness of danger which may be experienced by battered women.  And that is a matter that may bear directly on the defence of provocation.  An act "which might not be insulting or hurtful to one person might be extremely so to another because of that person's ... personal relationships or past history"[65], including, of course, a history of abuse by the deceased.  It does not require expert evidence for a jury to understand that some slight insult may, in context, constitute "the last straw", a consideration addressed in the summing up in this case.  However, there may be cases in which a matter of apparently slight significance is properly to be regarded as evidence of provocation when considered in light of expert evidence as to the battered woman's heightened arousal or awareness of danger.  And evidence of that may also be relevant to the gravity of the provocation, as may the history of the abusive relationship.

    [65]Masciantonio v The Queen (1995) 183 CLR 58 at 67 per Brennan, Deane, Dawson and Gaudron JJ.

56. So, too, expert evidence of heightened arousal or awareness of danger may be directly relevant to self-defence, particularly to the question whether the battered woman believed that she was at risk of death or serious bodily harm and that her actions were necessary to avoid that risk[66].  And, of course, the history of the particular relationship may bear on the reasonableness of that belief[67].

    [66]As to self-defence, see Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 at 661-662 per Wilson, Dawson and Toohey JJ (Mason CJ agreeing at 654), 683 per Gaudron J.

    [67]As to reasonableness, see Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 at 661-662 per Wilson, Dawson and Toohey JJ (Mason CJ agreeing at 654), 683, 687, 688 per Gaudron J.

57. Given that the ordinary person is likely to approach the evidence of a battered woman without knowledge of her heightened perception of danger, the impact of fear on her thinking, her fear of telling others of her predicament and her belief that she can't escape from the relationship, it must now be accepted that the battered wife syndrome is a proper matter for expert evidence.  Such evidence has been received in South Australia, New South Wales, Tasmania, the Northern Territory, as well as in New Zealand, England and the United States of America[68].  And in R v Lavallee the Supreme Court of Canada accepted that the battered wife syndrome was a proper matter for expert evidence[69].

    [68]South Australia:  R v Runjanjic; R v Kontinnen (1991) 56 SASR 114; New South Wales: R v Chhay (1994) 72 A Crim R 1; Tasmania: R v Gunnarsson-Wiener unreported, Supreme Court of Tasmania, 13 August 1992 at pars 104-105 per Zeeman J; Northern Territory:  R v Secretary (1996) 107 NTR 1; New Zealand: R v Oakes [1995] 2 NZLR 673; Ruka v Department of Social Welfare [1997] 1 NZLR 154; England: R v Thornton (No 2) [1996] 1 WLR 1174; [1996] 2 All ER 1023; United States: see survey of United States Courts which have accepted evidence of battered woman's syndrome, collected in Bechtel v State 840 P 2d 1 at 7, fn 5 (Oklahoma 1992); see also Fennell v Goolsby 630 F Supp 451 (Pennsylvania 1985); People v Torres 488 NYS 2d 358 (New York 1985); State v Gallegos 719 P 2d 1268 (New Mexico 1986); Arcoren v US 929 F 2d 1235 (8th Cir 1991); US v Simpson 979 F 2d 1282 (8th Cir 1992); US v Johnson 956 F 2d 894 (9th Cir 1992); Knock v Knock 621 A 2d 267 (Connecticut 1993); Soutiere v Soutiere 163 Vt 265 (Vermont 1996).

    [69][1990] 1 SCR 852. See also R v Malott (1998) 155 DLR (4th) 513 at 521 per Major J.

58. As with expert evidence generally, a trial judge should direct the jury that it should decide whether it accepts evidence given with respect to the battered wife syndrome.  As was pointed out in R v Lavallee, however, the issue is not simply whether the accused is a battered woman[70].  Rather, the issue is usually whether she acted in self-defence and, if not, whether she acted under provocation.  They are issues which arise in the factual context of the particular case.  If it is not otherwise obvious as to how the evidence of battered wife syndrome may be used, it should be related to those issues in the factual context in which they occur.

    [70][1990] 1 SCR 852 at 890-891 per Wilson J.

59. It does not follow from what has been said that the argument for Mrs Osland with respect to Dr Byrne's evidence should be accepted.  In the first place, it is likely that the significance of the expert evidence as it related to the credibility of Mrs Osland's account of her relationship with her husband was obvious to the jury.  Moreover, that question was not the subject of detailed submissions in this Court.  Of greater significance to the argument put in this Court is that much of Dr Byrne's evidence was given in general terms and not linked to Mrs Osland's actions, to the events which were said to raise provocation and self-defence or to the issues raised by those defences.

60. It need hardly be said that there is an obligation on counsel to make clear to the jury and the trial judge the precise manner in which they seek to rely on expert evidence of battered wife syndrome and to relate it to the other evidence and the issues in the case.  In circumstances where evidence of battered wife syndrome is given in general terms, is not directly linked to the other evidence in the case or the issues and no application is made for any specific direction with respect to that evidence, it cannot be concluded that the trial judge erred in not giving precise directions as to the use to which that evidence might be put.

    Other grounds of appeal

61. The appellant relied on other grounds of appeal.  In the main, those grounds are concerned with the application of settled principle to the circumstances of this case, including with respect to provocation[71] and self-defence[72].  One ground is also concerned with the trial judge's direction to the jury that an accused person may have an interest in being less than frank in his or her evidence, a matter the subject of recent decisions by this Court in Robinson v The Queen[73] and Stafford v The Queen[74].  Another ground raises the question of the admissibility of evidence to counter an allegation of recent invention.  Other grounds of appeal relate to the approach taken by the Court of Appeal and have no direct bearing on
    

    [71]As to which, see Stingel v The Queen (1990) 171 CLR 312 and Masciantonio v The Queen (1995) 183 CLR 58.

    [72]As to which, see Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645.

    [73](1991) 180 CLR 531.

    [74](1993) 67 ALJR 510.

    the issues involved in this case.  It is unnecessary to say anything with respect to any of these matters.

    Orders

62. The appeal should be allowed.  The order of the Victorian Court of Appeal should be set aside and, in lieu of that order, the appeal to that court should be allowed, the conviction quashed, and a new trial ordered.

63. McHUGH J.   The facts and issues in this appeal are set out in the judgment of Kirby J.  Subject to the comments which follow concerning the issue of inconsistency, I agree with his Honour's reasons and the order that he proposes.

64. All members of the Court agree that the appeal must fail except for the issue of inconsistency.  All members of the Court also agree that the conviction of Mrs Osland is not inconsistent with the subsequent acquittal of her son, David Albion, at a later trial.  When persons alleged to have committed a crime jointly are tried separately, it can often happen that one will be acquitted and the other convicted.  One reason for that occurring is that the evidence admissible against one accused may not be admissible against the other.  For that reason, it can often happen that, even when both persons are tried together, one may be convicted and the other acquitted without there being any inconsistency in the verdicts of the jury[75].  That being so, the fact that in a subsequent trial the jury acquitted Mrs Osland's son is not a legal ground for setting aside her conviction[76].

    [75]R v Jones [1971] 1 NSWLR 613.

    [76]cf Hui Chi-ming v The Queen [1992] 1 AC 34 (The fact that the actual perpetrator was acquitted of murder was no bar to a conviction for murder in a later trial of a person acting in concert with the perpetrator).

65. However, Gaudron and Gummow JJ would allow the appeal on the ground that an inconsistency exists between the conviction of Mrs Osland on the charge of murder and the failure of the same jury to reach a verdict in respect of the charge of murder against her son.  They hold that, because the jury failed to agree that Mrs Osland's son was guilty of murder, her conviction is contrary to a basic principle of causation.  The principle of causation to which they refer applies in cases such as the present where an accused person is charged jointly as a principal in respect of the crime of murder though he or she did not perform the act or acts causing death.  In that situation, the principle declares that the accused person cannot be convicted of murder unless the co-accused whose act or acts caused the death was acting pursuant to the understanding or arrangement that together they would kill the deceased[77].  As a result, Gaudron and Gummow JJ have found that Mrs Osland's conviction is inconsistent with the failure to agree concerning her son.

    [77]Acting pursuant to the understanding or arrangement includes doing those acts which were contemplated as a possible incident of the planned behaviour (Johns v The Queen (1980) 143 CLR 108).

66. If there is any possibility in a joint trial that the accused whose acts caused the death was not, at the relevant time, acting pursuant to the understanding with the co-accused, it is ordinarily necessary for the trial judge to direct the jury in accordance with the principle of causation explained above.  In such a case, the agreement or understanding between the accused is not causally connected to the death and the accused who did not perform the act or acts causing death cannot be held responsible for the killing.  The learned trial judge did not direct the jury in accordance with that principle in this case.  But for reasons which I later develop, the principle had no application in the circumstances of this case.  Accordingly, the failure to give a direction to that effect did not constitute a miscarriage of justice.

176. Against this explanation of the issues upon which the trial of the appellant was fought and the repeated and express denial that any contest was presented to the effect that the appellant's actions were not causative of the death of the deceased, it will be understood that the point upon which it is now suggested that the appellant's trial miscarried carries little forensic merit.  But as the trial judge recognised, whatever the issues that counsel on behalf of the Crown and the accused defined as those upon which the jury's verdicts were invited, it remained the judge's duty accurately and adequately to explain the ingredients of the offence of murder of which the appellant was charged.  Did his instruction fall short of that requirement? 

177. In my opinion, it did not.  The judge listed the elements in the crime.  He explained the necessity for the Crown to prove that the appellant and her co‑accused were the cause or a cause of the death of the deceased.  Correctly, he told the jury that her actions did not have to be the sole cause and that it was sufficient that her conduct should be a "substantial cause of death".  His reference to the blows to the head of the deceased as "a cause" clearly meant, in the context, an immediate cause of death.  But it would be to ignore the way the entire trial had been conducted, and the issues presented, to suggest that these remarks exculpated the appellant from causing the deceased's death.  It had never been submitted that she had actually wielded the blows.  This is made clear by the trial judge's statement that the "blow with the instrument" was "an operative and substantial cause"[241].  He was not purporting to elaborate all the causes.  Still less was he directing the jury to exclude from their deliberations the causative conduct alleged against the appellant which she herself had never disputed.  To suggest the contrary is, in my respectful view, to lift the passage now complained of out of context and to submit it to a microscopic examination, in isolation, in a way that is both unrealistic and uncalled for.  The applicable test of causation was one of significant or substantial contribution to the deceased's death.  This was adequately explained to the jury.  Their satisfaction that it had been made out in the case of the appellant is hardly remarkable given that she had never denied it.

     [241]Emphasis added.

178. Taking into account the evidence that left it open to the jury in the appellant's trial to conclude that she was the leading participant who conceived, planned and actively participated in the killing of the deceased, there are many explanations for the jury's verdict in her case and their failure to agree on the verdict in the case of Mr Albion.  A possible reason was a disagreement as to whether Mr Albion should be found guilty of murder or of manslaughter.  This Court has no way of judging why the jury in Mr Albion's second trial acquitted him.  It does not have the transcript of that trial.  It cannot even begin to speculate on the reasons.  At the first trial, there were significant differences in the evidence given by the appellant and her son as to the violent and intimidating conduct of the deceased towards them immediately before the killing.  For all this Court knows, the second jury might have treated such evidence, if repeated, as justifying Mr Albion's conduct as self-defence in his case.  We simply do not know.  This Court should not cast doubt on the second jury's acquittal of Mr Albion.  Apart from anything else, it is always possible that a jury may return a merciful verdict where a son acts to defend his mother against a perceived threat of violence.  But the fact that a different jury acquitted Mr Albion cannot impugn the verdict of the jury that convicted the appellant.  Neither in the directions given nor in the resulting verdicts is there justification for disturbing that conviction.  In my view it should stand.

     Order

179. The appeal should be dismissed.

CALLINAN J.

Facts and the proceedings in the courts below

180. On the morning of 30 July 1991 Mrs Marjorie Heather Osland (the appellant) and her son David Albion (Mr Albion) dug a grave in bushland near Bendigo where they were living with the appellant's husband, Frank Osland (Mr Osland).  That evening the appellant fed the husband curry laced with a sleep-inducing drug containing diazepam.  After he became unconscious Mr Osland was bludgeoned to death by the appellant's son using an iron bar.  The appellant and Mr Albion then hooded the deceased's head in a plastic bag and transported his body in his motor vehicle to the grave which they had prepared where they buried him.  They then drove his vehicle to Melbourne where they abandoned it.

181. It was not until 12 January 1995 that the appellant and her son were charged with murder.  In the meantime they had repeatedly represented to all (except Mr Albion's brother, Paul) including the police to whom the appellant reported the deceased as a missing person, that he was alive. 

182. The trial of the appellant and the first trial of Mr Albion took place in October 1996 in the Supreme Court of Victoria.  It lasted 22 days and resulted in the conviction of the appellant for murder and a disagreement by the jury with respect to Mr Albion.  On a retrial on 12 December 1996 Mr Albion was acquitted of both murder and manslaughter.

183. The appellant was sentenced to a term of imprisonment of 14 years and 6 months.  She was ordered to serve a minimum period of 9 years and 6 months before becoming eligible for parole.

184. The appellant sought leave to appeal to the Court of Appeal of Victoria against both her conviction and sentence.  The grounds of appeal were extensive.  They included complaints about the trial judge's directions to the jury with respect to numerous matters including provocation, the use to which lies told by the appellant could be put and the directions on motive of the appellant.  Other grounds relied on were that some evidence favourable to the appellant had been wrongly rejected and that other evidence adverse to her had been wrongly admitted.

185. The appellant chose to give evidence at her trial.  She deposed that she had met the deceased in 1970 and began to cohabit with him in 1977.  She had four children all below 13 years of age from a marriage that had been unhappy and had by then failed.  After only two weeks of cohabitation the deceased became violent and abusive, "very abusive, very emotional, very traumatic".  Mr Osland, she said, was dictatorial in all domestic, social, familial and sexual matters.  The appellant's evidence in chief is a catalogue of alleged indignities.  She gave many examples of painful and systematic violence which she said was inflicted on her by him from time to time.  As often as once weekly, the appellant, or one of the children was struck by Mr Osland.  He was a very jealous man.  He made a practice of accusing the appellant of "slutting around" and dominated almost all of her and the family's activities.  According to the appellant, Mr Osland frequently imposed anal intercourse upon her against her wishes.  He threatened that he would kill her and the children if she ever tried to leave him.  There were other manifestations of Mr Osland's violent disposition.  He was cruel to animals:  he spoke to the children of killing and chopping them up.  She told the jury that in the early days of their cohabitation the deceased was a big man, of 16 stone, and that she was a small woman only 5 feet 3 inches in height.  Another practice he adopted was to lock the appellant and the children out of the house when they returned from church on Sundays.  On two occasions he pointed a firearm at the children.

186. In due course the appellant was able to obtain a tenancy of a Housing Commission house and to move herself and her children from the house they had been occupying with Mr Osland.  During a brief absence by the appellant, Mr Osland broke in to the Housing Commission house.  He took up residence there after he had lost an entitlement to live in a house owned by his former employer.

187. In 1980 the appellant, her children and Mr Osland left Karratha in Western Australia where they had spent the preceding 3 years and moved to Bendigo in Victoria.  There another separation occurred.  In 1981 the parties bought a house in Bendigo as tenants in common with a deposit provided by the appellant and a loan from a bank.  The bank would not lend the money for the purchase unless a male was also liable to repay the loan.  Mr Osland agreed to this and moved into the house with the appellant and her children.  Separations intermittently occurred.  Again Mr Osland inflicted physical abuse upon the appellant and threatened to kill her and the children.  The appellant was suffering cystitis possibly related to the deceased's insistence upon anal intercourse, against her will.  There were further outbreaks of violence against the children, and threats of death made to the appellant's mother.

188. On one occasion, at Christmas 1982, when the parties were separated the appellant sent the male children to stay with their natural father.  She said that when they were away she would have an opportunity to leave Mr Osland and to hide from him.  However no permanent break occurred then.  The appellant throughout this period was working and earning despite Mr Osland's intense jealousy and repeated, embarrassing appearances at her various workplaces.  She was accordingly able to purchase a unit for herself in Bendigo where she set out to live with her two daughters.

189. In 1984 the appellant decided to visit a friend in the United States.  Mr Osland demanded that the appellant stay in Australia.  She refused and travelled to the United States making a point of telephoning him eighteen times during her holiday of nine weeks.  Whilst she was away he sent her some flowers on her birthday.  On her return he met her at the airport and drove her back to Bendigo.  She gave evidence that at this time "[She] cared about him and wished he would change."  A reasonably happy interlude of about two months of cohabitation ensued.  A reversion to Mr Osland's old ways occurred as soon as the parties married, an event which took place soon after the appellant's return from the United States.  She explained this development on the ground that she hoped marriage might "make things work between us."  According to the appellant's evidence, even on the wedding day, at the church, and during the reception Mr Osland made offensive comments to her.

190. Matters continued to deteriorate.  Mr Osland said that he had married the appellant in order to gain possession of the unit she had bought.  Another separation occurred in about April 1985 when the appellant obtained the assistance of the police to eject Mr Osland from the unit in which the family was then living.  He persisted in following and threatening the appellant and her children, at her work place, in the street, and outside her residence.

191. I have really summarised enough of the appellant's evidence to give the substance of her description of life with the deceased until about early 1991, a pattern of threats, physical violence, short-lived reconciliations, illness (cystitis and hypertension) repression and fear.  The appellant denied in her evidence in chief that she had asked her other son, Paul who gave evidence to that effect, to kill Mr Osland.  She denied a similar claim made in evidence by another witness Mr Dalziel.

192. The appellant's evidence of more recent times before Mr Osland's death, was that his violence towards her was "building up".  She described his threats to Mr Albion made during the week before the deceased was killed.  She said that Mr Osland literally kicked her out of bed during this period.  He punched the appellant in the chest numerous times.  She feared that he might attempt to smother her when she was sleeping.  She had reached a point at which she thought an attempt by him to kill her was certainly imminent.  She thought in particular that her failure to obtain some fittings for a bed which he had demanded would be a precipitating factor.  I quote from her account of events leading up to the death of her husband:

     "When you couldn't get the knuckles for the bed, what effect did that have on you? - - - I knew I'd be in deep shit, because I didn't have the knuckles and then he'd accuse me that I hadn't been out there, that I'd been lying.  It was just a deep fear that built up in me.

     So did you do anything or say anything to David [Albion] as a result of this feeling because you hadn't been able to get the knuckles? - - - I just knew we'd be in trouble.

     Did you say anything to David about that? - - - Yes we did, we talked about it.

     What did you say? - - - I would've said David, oh my God. We didn't have to talk much because we just knew by actions, that I'd be in trouble.

     After you'd been to Henry Ott's where did you go? - - - We just parked in that little – little, what do you call it? Oh, where the bush had made that opening in the bush, up the track, we went up through the track and driving up through there, looking.  David thought the plants [marijuana] would be up there, and there were - - -

     HIS HONOUR:  A sort of an opening you mean? - - - Yes, like an opening, it was onto a dirt road, we went up through the bush and we turned off and sat in that opening and think my God, what are we going to do.

     When you say 'thinking', were you saying anything or just thinking? - - - Just thinking.

     Did you speak to David at all when you stopped there in that clearing? - - - I just said, 'What are we going to do?' I just knew that he was – I just knew that he was going to kill me, the fear in me was just so bad.

     What did you do? - - - We thought, 'What are we going to do? We will just dig a hole like he was always going to dig a hole for us.'

     But did you say anything? - - - No, there wouldn't have been much said between us because it was just the fear that David and I both had inside.

     You said, 'We said we'd dig a hole', who actually said that? - - - I'd say me.

     Did you say anything about what you'd do with the hole? - - - We'd just see what mood he was in when he came home that night.

     Did you say anything about what you'd do depending on his mood? - - - No, not really.

     …

     Did you say anything to David about what the purpose was for digging a hole? - - - If he was violent and verbal like he was the night before, well we'd just shove him in the hole.

     HIS HONOUR:  You said that to David? - - - Yes, virtually.

     It was just - - -

     I'm not sure what 'virtually' means? - - - It's a fear that you have - - -

     I think what Mrs Hampel is asking you to direct you to is not so much what you were personally thinking, but what was said between you and David, if anything? - - - There was virtually nothing, because there's just that much fear was in us.

     COUNSEL:  What was in your mind? - - - I knew I'd be dead, I knew he'd kill me.

     What was in you mind as the purpose for the hole? - - - That we would just shove him in the hole if he come home the same as he did the night before.

     What did you do after that? - - - We went home and got the shovel and the crowbar.

     What did you do after that? - - - Then we just went back and dug a hole.

     You were asked by the police in your interviews about digging the hole; weren't you? - - - Yes.

     I want to read you a couple of questions and answers that you were asked by the police in the first interview.  That was the one that was recorded on the audio tape.

     …

     You were asked this, 'And can you go through with me exactly what happened on the night he was killed?'

     Answer:  That day he was just so bad it was either – he would just – the tension in the house was just so bad it really was, you've got no idea, and I'd made – said that we'd – said to David about it – he said, 'We have to get rid of him, mum'.  I said, 'I know, even if I left him he'd never leave me alone' which he never did.

     Question:  'And what happened then?' Answer: 'We dug the hole that day.' You gave those answers to the police in the audio interview about the hole? - - - Yes, that's correct.

     What did you say about the accuracy or truthfulness of those answers? - - - That is true.

     You then in the first video interview, the one out at the scene – I am going to all three interview[s], if that's of assistance Your Honour.  (To Witness) I want to ask you a couple of questions about what you said in the first videoed interview, the one out at the scene.  At question 8 were you asked this, 'And can you tell me what happened on that occasion?'

     …

     Answer:  'I just came here to – we sat there in the car and decided that we'd dig a hole.  If he was shitty when we went home well we'd do something about it.' You gave that answer? - - - Yes, I did.

     What do you say about the truthfulness and accuracy of that? - - - That's true, that's correct.

     And in the long interview back at the CIB office, question 49 and following, Your Honour, did you give these answers? Question: 'If we can get back to the day of the murder, what was actually discussed between David and yourself; can you remember the conversation?' Answer: 'Not – not murder him, just get rid of him, just getting rid of all the shit out of our life.  All the time it was, it was just shit all the time.  We couldn't breathe, we didn't talk when he was there.  Couldn't have anyone at the house.  He wouldn't allow anyone at the house.'

     Question:  'So what plan of action did you?' Answer: 'We just thought we'd go and dig a hole and just kill him, that was all, just getting rid of him, because I knew if I left him – because I wanted to leave – and I knew he wouldn't let me go anyway.  There was no really – I don't reckon there was a real plan planned.  We'd thought about things, and we'd talked about things in getting rid of him.'

     Question:  'Had you any specific plan how you were going to do it?' Answer: 'No, it just all come about that day virtually.  I'd think about – it was virtually – either just virtually the day before or that day, that was all.' Question:  'Who brought up the conversation with regard to killing him?' Answer: 'It would be me, I suppose.'

     Question:  'Can you remember what you said to David?'  Answer:  'No I can't'.  Question:  'Was David aware at that stage that's what you were thinking about?'  Answer:  'Yes, we were both thinking it was just to get rid of the shit'.  Question:  'Had Frank ever assaulted David?'  Answer:  'As far as hitting him, you mean?'.  Question:  'Yes?'  Answer:  'Probably when he was little, but he done more mental things to David, like not letting him get his bike and locking the bikes up and not letting him feed the birds and the birds starved to death when we had birds, and it was all just mental.'

     …

     Question:  'If you can slowly go through what happened that day, including any conversation you can remember between yourself and David?'  Answer: 'We didn't really talk that much.  We just went out, got in the car and we went for a drive, decided we'd dig a hole, which we went there because David had been out there trying to find some marijuana plants once before, went up and around and we found the spot, and we sat in the car probably for half an hour or more and Bonnie, my dog, and the two little pups were only little at the time'.  You were asked some questions then about what time it was, then you were asked at question 62:  'And what did you have with you at the time?' Answer:  'Shovel and crowbar'.  Question:  'Right, and it was David's idea to pick that location?'  Answer:  'No we just wandered around and we just picked it together.'  Question:  'And what happened when you got there?' Answer:  'We just started digging a hole, because if we did do anything, at least we had a hole.'  What do you say as to the truthfulness and accuracy of those answers? - - - That's correct, what I can remember.

     What did you do when you dug the hole? - - - We had no plan to do him any harm.  We just waited for him to come home.

     Before he came home did you do anything else? - - - We waited at the front windows to see him get out of the car, like we normally did, to see what mood he was going to be in.

     …

     You said that you were watching out the window for Frank to come home?

     - - - Yes.

     Why were you doing that? - - - We always stood there watching.  We did that for – for months; used to watch him when he got out of the car just to see what mood he was in.  If he was laughing more jovially with his mates, then we knew we were in trouble when we got inside.  If he was more solemn when he got out of the car, he wouldn't be so bad when he got inside.

     On the Tuesday night, what was he like when he got out of the car? - - - He was laughing.  He was as happy as anything.

     How did that make you feel? - - - We knew.  We listened for him to walk down the driveway and we knew we were in trouble.

     What happened when he came inside? - - - He verbally abused me over having me hair cut.  And I blocked all the rest of it out of my head.  I just can't get it out of my head.

     Was anything said about the knuckles for the bed? - - - It would've been, yes.  I know he was so angry.  I can see him standing over me.  I can see it, but I can't hear his words.

     How long was he verbally abusive after he got home? - - - I reckon a good hour, hour and a half.

     What were you doing during that time? - - - Just listening.

     How did you feel during that time? - - - I knew I was in trouble.  I was full of fear.

     What were you fearful of? - - - My life, I was fearful that if David went that day I knew I was – .

     Were you fearful that David would leave that day? - - - Yes, I thought he'd chuck him out the door like he did Erica.

     Why did you think he'd do that? - - - Cause he's done it so many times before.

     When he was verbally violent for an hour and a half did you decide to do anything? - - - I just thought I'd put the sleeping – those tablets in his dinner to quiet him down.  I just wanted one night of peace.

     You told the police in your interview that you crushed the tablets up? - - - Yes.

     Is that correct? - - - Yes.

     What did you do with them? - - - I put them in his dinner.

     You told Mr Thatcher in the interview that you'd cooked spaghetti for dinner? - - - Yes.

     What did you cook for dinner? - - - I actually cooked curry.  I told Mr Thatcher that on the Saturday in the cells that I'd actually remembered cooking curry.

     Regardless of what it was, what did you do with the crushed up tablets? - - - I mixed it in his food.

     Did anything happen when you served the dinner that night? - - - Yes, he got very angry because he reckoned that I made it only for David, he didn't want it and pushed it away.

     Had you made curry before? - - - Yes, loads of times.

     Was it any different from the curry you'd made on other occasions? - - - No, not at all.

     Had you made it for David? - - - No, I just made it in general, it was just a general meal.

     How much of it did Frank eat? - - - He didn't eat all of it anyway, it might have been half, over half.

     What was his manner like when he pushed it away? - - - He was so angry 'cause I'd only made it for David and just got up from the table.

     When you say he was so angry 'cause you'd only made it for David, what did you actually say? - - - I can see him but I can't hear his words.

     What was his manner like? - - - He was just so aggressive. 

     How did you feel? - - - I was just so frightened.

     What happened after that? - - - He went down into the shed.

     How long was he gone there? - - - I reckon 10 minutes, quarter of an hour.

     What did you do while he was gone? - - - I just cleared the table.

     What were you thinking about while he was gone? - - - Oh God, if he found out that I put the stuff in his meal I'd be in deep shit.

     What happened after that? - - - I saw him come back from the shed and he stumbled up the stairs, virtually fell up the stairs.

     What was in your mind when you saw that happened? - - - I thought, 'Oh my God, he'll know that I've put the stuff in his meal to quieten him down'.

     Did you think about what would happen to you if he did realise you'd put the stuff in his meal? - - - Yes, I did.

     What did you think about what would happen to you? - - - That if he put the pillow over me head this time I was virtually gone, he came in –.

     Then what did he do? - - - He sat at the kitchen table.

     What did he do when he sat at the table? - - - He was sort of falling back like he was – like he was drugged.

     Was he awake or asleep? - - - He was half – he was sort of nodding on and off.

     Was he [w]aking on and off? - - - No, but his head would fall back occasionally when he was nearly nodding off to sleep.

     How did that make you feel? - - - I though[t], 'My God, if he wakes up and finds out what I've done I'll be in trouble.'

     What did you do? - - - We just watched him.

     Who's the we? - - - David and I.

     How long did he stay at the table? - - - I'd reckon, 20 minutes.

     …

     Did he change from the way you described he was? - - - Yes, he got up and pushed the chair back and then stomped into the bedroom, kicking the door open and then went into the bedroom.

     Did he say anything when he did that? - - - No, he was just really angry – he was just really angry.

     What was it about what he did that made you believe that? - - - It was just the way he done it.

     What did you do when he got up and went into the bedroom? - - - David and I stood in the big room and we thought, 'Oh, my God'.

     When you say 'we thought' are you now talking about what you saw or what you thought? - - -  What we were thinking between us.

     Okay, let's talk about what you were thinking. What were you thinking?- - -  I thought.  'My God, he'll know I put the stuff in his meal'.  I just was – would probably never have – I was just paranoid what would happen if he woke up and knew what I'd done.

     Did you say anything to David at that stage? - - - No, we just knew the fear that had built up in us so badly.

     What did you do? - - - We just – sort of that I couldn't live like this any more.

     …

     Did you speak? - - - No, not really, it was just eye contact between David and I and we just knew.

     HIS HONOUR:  What did you know? - - - Beg your pardon?

     What did you know.  You said, 'eye contact' between David and you.  You are saying, 'we knew' but I think David will have to speak for himself about that, but what was the next thing that you decided to do? - - - Well, there was just no way out – there was no way out for David and there was no way out for me 'cause I just knew he'd never let me go.

     COUNSEL:  You told the police in your interview that David went to the shed and got a piece of iron pipe? - - - That's correct.

     What happened between the time you knew there would be no way out for you, and the time David got the pipe? - - - I was just standing in the big room, I didn't move, I was just - I was paralysed - I was just paralysed in fear, I think, thinking of what would happen if he woke up.

     You told the police in your interview what happened after David got the pipe? - - - Yes.

     And how Frank was killed? - - - Yes.

     Is that the truth? - - - Yes, it is.

     You've told the police what happened after Frank was killed in terms of taking his body out to the hole and burying him? - - - That's true, yes.

     Is what you told the police in the interview about that the truth? - - - Yes, it is.

     You told the police, in your interview, that after you went home and cleaned the lace from your bed? - - - That's correct, yes.

     Is what you told the police about that the truth? - - - Yes, it was, and then while we were cleaning that I thought, 'Oh my God, what about his car?'

     And you told the police that's what you thought and that you then took the car to Melbourne and dumped it? - - - That's correct.

     Is what you told the police about that the truth? - - - That's true, yes."

193. Self evidently, a jury would be entitled if they were so minded, to infer from that account, a high degree of premeditation.  They would also be entitled to take the view that the appellant did not drug her husband to quieten him down as she later said in evidence, but instead to render him powerless to resist the fatal assault upon him which was planned as evidenced by the preparation of the "hole". 

194. A number of telephonic intercepts were subsequently made by police and tendered in evidence at the appellant's trial.  They revealed telephone conversations between the appellant and others during which the appellant spoke of allegations of which she had heard that she and Mr Albion had killed the deceased, and how false such allegations were.  She also counselled those to whom she spoke as to the way they should conduct themselves, and how others had conducted themselves in interviews with police officers.  Conversations with her co-accused were also taped during which the appellant discussed with him what he should say to the police when they called upon him.

195. Some of those conversations are capable of being construed as revealing a somewhat different picture, particularly of recent times, from that painted in the evidence in chief of the appellant to which I have referred.  The following are examples of conversations between the appellant and her friend, Gwen, and between the appellant and her daughter, Erica:

     "Osland:  Yeah because of his violence and everything towards me in me marriage you know going back earlier.

     Gwen:  mmm

     Osland:  I had a motive to do it now.

     Gwen:  mmm

     Osland:  If I was going to do anything I would've done it years ago.

     Gwen:  That's right." (conversation between appellant and Gwen Rotherington on 21 December 1994).

     "Osland:  But the thing is though Erica I just said to Stan before you know like if he's saying that you and David sort've sit there and plan it you know like you'd be six or seven years of age or eight, he never used to hit much once he got older it was only when you were little and those days is Karratha days, right and I know when he was sleeping in the corner but you were all too young for all that shit to even remember what how he used to sleep in the trailer you wouldn't know all that shit." (conversation between appellant and her daughter, Erica on 18 December 1994).

196. In most respects the appellant's version of events given in examination in chief corresponded with her account in various interviews conducted by police officers.  During one of these the appellant said this:

     "Right.  Can you tell me exactly what happened?

     We just hit him with a bar.

     What sort of bar was it, Heather?

     Just a round bar.  Just a piece of pole.

     And where did you get that from?

     Down the shed.

     Who actually hit him?

     Well, we - it's together.  I'm not saying David did.

     He - I wanted to do it but I wasn't strong enough, David said.  Poor David.

     How many times did you hit him?

     Just once, I think.  Just once, might be twice.

     So, in fact, David hit him with the steel pole?

     We hit him together, it's joint responsibility.  I know it is, it's not fair that David's got to take that blame.

     What happened after he was hit?

     (No audible reply)

     Was he dead?

     Yeah.  He was dead.

     How did you know?

     Well, he wasn't movin'."

197. The evidence of Mr Albion, the co-accused, at the trial was that, when the deceased came home on the night of the killing, he was working on his car when he heard the appellant scream.  He went into the house and saw her up against the wall with the deceased standing over her.  He was yelling at her and abusing her and she was pleading with him.  He ran in and told the deceased to "get the fuck off her".  The deceased then turned on him and told him to "get the fuck out of the house".  When he said that he would not leave without his mother, the deceased had screamed "I'll kill you", after which he felled David with a punch to the head.

198. As the Court of Appeal said, it was a fundamental part of the appellant's case that she had become, by the time of the killing, a clear example of the condition known as the "battered woman's syndrome"[242].  In support of this contention at the trial the appellant called evidence from Dr Kenneth Byrne, a consultant psychologist.  It was his opinion, based on the history which he obtained from the appellant, that she was indeed a typical example of the battered woman's syndrome.  Dr Byrne said that the syndrome comprised a "collection of responses, thoughts, feelings and attitudes" which compelled the woman who was the subject of the syndrome meekly to comply with the batterer's wishes without giving any logical thought to her own rights.  It entailed a belief on the part of the woman that she could never free herself from the enforced domination of the man, and an induced fear that, if she did not comply with the wishes of the man, it would only serve to worsen her plight.  She thus becomes the subject of a "learnt helplessness" which drives her into submission, accompanied by a "learnt hopefulness" that, if she submits, matters will improve.

     [242]R v Osland [1998] 2 VR 636.

199. The defence of provocation based on the evidence to which I have referred was also advanced by the appellant in the alternative to self-defence.

200. In answer to the appellant's claims at the trial and in the Court of Appeal the Crown made these submissions:

     (a)     That this was a pre-planned killing in which the participants had, pursuant to that plan, dug a grave, rendered the deceased comatose by drugging his food, discussed the method of executing the "kill" and then ruthlessly carried it out.  Such pre-planning, it was said, was the antithesis of self-defence or a killing through loss of self-control.

     (b)    That the killing was cold-blooded and premeditated appeared clearly from the evidence of the son Paul, and one Robert Dalziel, each of whom said that, well before the killing, the appellant had sought to solicit his services to kill the deceased. (There was indeed evidence to this effect).

     (c)    That the appellant's claim of fear of the deceased up until the night of the killing was an extravagant over-statement which did not match some of the statements which she was recorded as making on the intercepted telephone conversations which were before the jury.  In those recorded conversations the appellant could be heard telling her friends that she and the deceased had been living independent lives for some years before the night of the killing. Nowhere was she heard to say that she had been subjected to repeated abuse in the years before the killing.  Thus, in one conversation, taped shortly before her arrest, she was heard to say:  "ten or fifteen years ago, I could have throttled the shit out of him, but not in the last couple of years.  We just did not talk."  (Again this is a correct summary of, and a quotation from part of the evidence).

     (d)    That on at least two nights per week, the appellant had established a habit of socialising separately with her friends.  (There was evidence to this effect)  Whatever may have been the situation in earlier years, it no longer prevailed at the time of the killing.

     (e)    That the appellant, in her evidence, did not suggest any particular words or deeds which triggered the killing.  Her evidence was simply that it was "more of the same".  Although Mr Albion had given evidence of specific abuse of the appellant and himself on the night of the killing, the appellant had not given any such evidence, nor had she been cross‑examined by Mr Albion's counsel to suggest that such events had occurred.

     The appeal to this Court

201. The first argument advanced by the appellant was that the acquittal of her son required that the appeal be upheld on the ground that the two verdicts were so inconsistent that they could not stand together.  It is convenient to deal with this submission later. 

202. The Court was referred to Ryan v The Queen[243] to support the next submission.  This was that if regard be had to the course of events leading up the death of Mr Osland, it could readily be seen that there was no act of the appellant which could have been selected by the jury as the, or an, act causing death: that the trial judge had failed to draw attention to this matter and that it was his Honour's duty to do so even though the defence case may not have been presented on this basis at the trial.  The appellant's counsel concedes that this point was also not taken in the Court of Appeal.

     [243](1967) 121 CLR 205 at 218-219.

203. A related submission was that the appellant's liability (if any) was derivative only:  that unless the appellant's son, Mr Albion, who struck the fatal blow or blows was convicted of murder, the appellant, whose role was subsidiary because she did not strike the blow, could not be convicted of murder.

204. In my opinion, in a case of this kind, a case of actual participation in all phases of the crime it was not necessary nor is it necessary to resort to the shifting and often inconsistent decisions of other courts over the years in which the distinction between principals and accessories in various degrees has been drawn.  The history of the distinctions is fully discussed in Smith's Modern Treatise on the Law of Criminal Complicity (1991).  The distinctions generally owe their existence to technical and substantive differences with respect to modes of trial, jurisdiction, punishment and benefit of clergy, all matters of diminished or no importance in modern times.  For more than a century, legislative attempts have been made to simplify the law in these areas.  This Court should not reverse that process.

205. The common law originally divided all crimes into three categories: treasons, felonies and misdemeanours.  It was only in relation to felonies that there were different levels of participation recognised by law.  Originally, the categories of participation were principals, accessories before the fact, accessories at the fact and accessories after the fact.  The reason for the lack of differentiation between the parties in misdemeanours and treasons was said to be that treasons were regarded as too serious, and misdemeanours as not serious enough, to justify such fine distinctions.

206. The distinguishing feature of accessories at the fact was their presence at the commission of the crime.  Accessories at the fact were described as "aiding and abetting" the commission of the crime.  Accessories before the fact were referred to as having "counselled or procured" the crime.  Different penalties were typically imposed for the various classifications of participation.

207. These classifications also had important procedural implications.  Accessory liability was in essence derivative.  This necessitated conviction of the principal to ground a case against other participants.  Further, there were important implications for jurisdiction.

208. Later, accessories at the fact became described, for purposes of classification, as principals in the second degree.  Smith describes this as a judicial manoeuvre designed to do away with the situation that the accessory might escape liability simply because the principal had not been convicted[244]. Bromley CJ in R v Griffith is probably the author of one of the first statements (or possibly the statement) reflecting a changed approach[245]:

     "… [N]otwithstanding there is but one wound given by one only, yet it shall be adjudged in law the … wound of every one, that is, it shall be looked upon as given by him who gave it, by himself, and given by the rest by him as their minister and instrument.  And it is as much the deed of the others, as if they had jointly holden with their hands the club or other instrument with which the wound was given, and as if they had all together struck the person that was killed.  So that it cannot be well termed that they, who gave the wound, are principals in deed, and the other principals in law, but they are all principals in deed, and in one same degree."

     [244]Smith, A Modern Treatise on the Law of Criminal Complicity, (1991) at 24-25.

     [245](1553) 1 Plowd 97 at 98 [75 ER 152 at 155].

209. Along similar lines, Bracton had earlier written[246]:

     "the wound, the assistance and the instigation together form a single deed: there would be no wound had there been no assistance, and neither wound nor assistance without the instigation."

     [246]Bracton, Trans Thorne, ii, 392.

210. In consequence:

     (i)     participants in various degrees would be eligible for trial, although the "doer" may not have been convicted; and,

     (ii)    there were various implications to the defence of benefit of clergy.  None of them is relevant to contemporary Australia.

211. By the Criminal Law Act 1826 (UK), an accessory before the fact was rendered liable for conviction for a substantive felony even if the principal had not been convicted.

212. The Accessories and Abettors Act 1861 (UK) superseded the 1826 Act by dealing comprehensively with accessories before the fact.  The Criminal Law Act 1967 (UK) eventually abolished the distinction between felony and misdemeanour in England.  The course of legislation in England influenced that which followed in Australia.

213. In Victoria, legislation was enacted in 1981 which abolished the distinction between felonies and misdemeanours.  In 1958, the Crimes Act empowered the Court to impose the same punishment on both categories of principal.  Accessories could be proceeded against as if each were the principal felon.

214. There is no question that there may be more than one principal in the first degree to murder[247].  An early example of the application of the principle is provided by R v Jackson[248].  In that case one accused struck the deceased with a large hedge stake, while the other robbed the victim.  Both were held to be principals in the first degree.

     [247]See Smith & Hogan, Criminal Law, 8th ed (1996) at 128-129; Brett, Waller and Williams, Criminal Law: Text and Cases, 8th ed (1997) at 464-465; La Fave and Scott, Criminal Law, 2nd ed (1986) at 570 (referring to State v Adams 105 La 737, 30 So 101 (1901); Roney v State 76 Ga 731 (1886)).

     [248](1857) 7 Cox CC 357.  See also Macklin, Murphy & Others (1838) 2 Lewin 225 [168 ER 1136]; R v Kelly (1847) 2 Car & K 379 [175 ER 157]; R v Haines (1847) 2 Car & K 368 [175 ER 152]; R v Bingley, Dutton and Batkin (1821) Russ & Ry 446 [168 ER 890]; cf Smith, A Modern Treatise on the Law of Criminal Complicity, (1991) at 28, fn 44; Mohan v The Queen [1967] 2 AC 187 at 195.

215. The doctrine of concert has been invoked in some of the cases.  For example, in R v Lowery and King [No 2], Smith J said[249]:

     "The law says that if two or more persons reach an understanding or arrangement that together they will commit a crime and then, while that understanding or arrangement is still on foot and has not been called off, they are both present at the scene of the crime and one or the other of them does, or they do between them, in accordance with their understanding or arrangement, all the things that are necessary to constitute the crime, they are equally guilty of that crime regardless of what part each played in its commission.  In such cases they are said to have been acting in concert in committing the crime." (emphasis added)

     However, in R v Demirian, McGarvie and O'Bryan JJ said[250]:

     "In none of the other cases did the court decide that all persons present at the crime and acting in concert were to be treated as principals in the first degree.  What was decided was that all were liable to be convicted of the crime."  

     [249][1972] VR 560 at 560.

     [250][1989] VR 97 at 124.

216. In taking this view, the Full Court of the Victorian Supreme Court was adopting some of the comments of James LJ in R v Richards[251].

     [251][1974] QB 776. See R v Demirian [1989] VR 97 at 121. R v Richards was overruled by the House of Lords in R v Howe [1987] AC 417.

217. With respect, the passage in Demirian overlooks that it is an important aspect of concert that it does not depend upon derivative liability.  This is because those who act in concert are to be treated as being causatively jointly responsible for the commission of the crime.

218. Section 323 of the Crimes Act 1958 (Vic) made its first appearance in that State in a form slightly different than now appears[252].  Its apparent source was the Accessories and Abettors Act 1861 (UK).  The object of the enactments seems to have been to do away with derivative liability.

     [252]The relevant sections in the Act as passed were as follows:

     "323. Every principal in the second degree in any felony whether the same be a felony at common law or under any Act shall be liable to the same punishment as the principal in the first degree.

     324. Every accessory before the fact to any felony whether the same is a felony at common law or under any Act may be presented indicted informed against tried convicted and punished in all respects as if he were a principal felon.

     325. Every accessory after the fact to any felony whether the same is a felony at common law or under any Act may be presented indicted informed against and convicted either as an accessory after the fact to the principal felony together with the principal felon or after the conviction of the principal felon, or may be presented indicted informed against and convicted of a substantive felony whether the principal felon has or has not been previously convicted or is or is not amendable to justice, and may thereupon be punished in like manner as any accessory after the fact to the same felony if convicted as an accessory may be punished."

219. The current provisions of s 323 of the Crimes Act 1958 (Vic) (as amended in 1981) read:

     "A person who aids, abets, counsels or procures the commission of an indictable offence may be tried, indicted or presented and punished as a principal offender."

220. If it were necessary to decide the point I would be inclined to hold that the practical effect of the section is to make it irrelevant to decide whether the accused actually struck the blow or did a final act to complete a crime.  The section appears to eliminate the need for a trial of a person formerly thought to be an accessory only, to await and depend upon the attainment or conviction of the principal.  The one exception would be punishment which will always look to the particular role of an offender in carrying out a crime.

221. No matter whether the section is to be taken as procedural or substantive, (a matter which it is not necessary to decide), there is no modern need for any difference in the test to determine the liability of a participant (as a principal in the first degree if that nomenclature still be appropriate) from that provided by Brennan J and McHugh J in Royall v The Queen[253].  Their Honours adopted a test of sufficient significant contribution.  In the present case the contribution of the appellant consisted of the preparation of the grave, the planning of the killing with the son, the choice of a curry which would disguise the drug, the drugging of the husband's food, the encouragement of him to eat it, the discussion with her son concerning the choice of weapon, her presence at the precise time and place of his slaying, the holding of the deceased, and the planning of each of, his burial, the concealment of his grave and the disposal of his car.

     [253](1991) 172 CLR 378 at 398, 441.

222. Having regard to these features of the evidence, most of them ultimately uncontested, the appellant was plainly and directly, and in material ways, closely implicated in the killing of her husband.  She made a significant contribution to that killing.  In her evidence in chief she expressly adopted the contents of her third interview with police officers.  It may therefore perhaps be taken as the best version for the appellant of these events.  It was certainly evidence on which the jury could act.  Yet even on this version the appellant admitted that, whether a preconceived plan [to kill Mr Osland] would be carried out on the evening of his death depended on her husband's mood when he came home: that they [she and Mr Albion] agreed to get a bar (a bat being rejected as being not substantial enough for their purposes); that she ground up the sleep inducing tablets and mixed them in the curry she had prepared; and that when Mr Osland fell asleep she held him down, either while her son struck and killed the victim or immediately after he had struck the deceased.  All of these facts involved the appellant sufficiently directly and significantly in the cause of Mr Osland's death.

223. Royall v The Queen[254] is a case in which this Court considered the issue of causation in a murder charge arising under the New South Wales Crimes Act 1900, s 18.  There  Brennan J said:

     "The basic proposition relating to causation in homicide is that an accused's conduct, whether by act or omission, must contribute significantly to the death of the victim[255].  It need not be the sole, direct or immediate cause of the death.  However, when death is not caused directly by the conduct of the accused but by something done by the victim or by a third person in response to the conduct of the accused, there is a question whether the chain of causation has been broken."

     [254](1991) 172 CLR 378 at 398.

     [255]Pagett (1983) 76 Cr App R 279 at 288.

224. And as McHugh J in the same case pointed out[256], causation is a question of fact.  His Honour added:

     "In most criminal cases, the issue of causation is not controversial.  If an accused's act or omission is causally linked with the event or occurrence, it is always only one of the conditions which were jointly necessary to produce the event or occurrence.  Ordinarily, however, the application of the commonsense test of causation is enough to determine whether the accused's act or omission was sufficiently significant to make him or her 'causally responsible' for the event or occurrence in question."

     [256](1991) 172 CLR 378 at 441.

225. By the application of such a practical test, the appellant's conduct undoubtedly contributed significantly to the victim's death.  She was, with her son, causally responsible for the death.  The assessment of the significance of her participation in the acts leading to the victim's death was entirely a matter for the jury.  But there was abundant evidence, some of which I have summarised or quoted, which entitled the jury to convict the appellant as a principal, or as one of two persons who together directly caused or at least, significantly contributed to the deceased's death.

226. It was next submitted that the trial judge erroneously made no attempt to distinguish between the respective states of mind of Mr Albion and the appellant at the time of the administration of the death blow or blows.  The submission was that in the circumstance that it was accepted on all sides that Mr Albion was the person who actually inflicted the blow, the distinction was important and should have been drawn in the trial judge's charge.

227. The direction of the trial judge was, in my opinion, an appropriate response to the way in which the case had been conducted.  No application for any such direction or for a redirection along these lines was made.  Furthermore, there were sufficient references in the summing-up to the need to consider the guilt of the appellant and her son, and the respective states of mind of each separately to enable the jury to draw any distinctions that they thought they should.  No objection was taken to these.  It did not follow that the jury were bound to reach the same conclusion with respect to each of the accused.  Moreover, as to the appellant's intention there could have been little doubt.  Practically everything the appellant did shortly before, but especially after her husband arrived home was deliberately and carefully directed to that end.  At least, it was clearly open to the jury on the evidence to so conclude.

228. I return now to the first submission that the acquittal of Mr Albion on a second trial was so inconsistent with the conviction of the appellant at the first trial that the latter cannot be allowed to stand.  The argument was put that the case had been presented as one of two parties acting in concert and that the appellant's counsel at the trial had accepted, indeed effectively adopted that approach.

229. The first authority to which the appellant referred was R v Darby[257].  Counsel read to the Court a passage from the joint judgment of Gibbs CJ, Aickin, Wilson and Brennan JJ[258] which states:

     "In the light of the wealth of both academic and judicial consideration that has been devoted to this topic in recent years, we have no doubt that this Court should now redirect the common law of Australia on to its true course.  It should determine that the conviction of a conspirator whether tried together with or separately from an alleged co-conspirator may stand notwithstanding that the latter is or may be acquitted unless in all the circumstances of the case his conviction is inconsistent with the acquittal of the other person.  In our opinion such a determination will focus upon the justice of the case rather than upon the technical obscurities that now confound the subject."

     [257](1982) 148 CLR 668.

     [258](1982) 148 CLR 668 at 678.

230. However that statement certainly does not mean that identical verdicts must, as a matter of law, be reached in a joint trial on the same counts whatever the differences charged.  Nor does it mean that separate trials of co-defendants have to be viewed in the same way as joint trials.  Or that the same verdicts must always be reached in respect of people apparently similarly complicit in a particular crime whether tried separately or jointly.

231. The appellant then relied on some statements in King v The Queen[259].  The ratio in that case is stated in the following passage:

     "[W]here 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 … [260]. The evidence may be sufficient to prove the case against the one accused beyond reasonable doubt, but be insufficient to prove the case against the other. In that event, the conviction of one and the acquittal of the other involves no inconsistency … [W]here 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."

     [259](1986) 161 CLR 423 at 433-434 per Dawson J.

     [260]R v Darby (1982) 148 CLR 668.

232. That case is also distinguishable on the facts.  There one of the accused was convicted and the other acquitted at a joint trial.  There is an important distinction between an acquittal and a disagreement by a jury.  As was pointed out during argument in this Court the jury may have simply been immovably divided on a question whether Mr Albion should be convicted of manslaughter or murder having regard to his lesser involvement in conceiving, planning and executing the death of Mr Osland[261].  I do not accept that the jury's failure to agree upon a verdict in relation to Mr Albion at the joint trial can be regarded as repugnant to the verdict of guilt in respect of the appellant.  I cannot accept therefore the appellant's submission that such a disagreement may, for the purposes of determining an issue of inconsistency, be equated with a verdict of acquittal.

     [261]cf R v Howe [1987] AC 417 at 458 per Lord Mackay of Clashfern. See also Pagett (1983) 76 Cr App R 279.

233. Surujpaul v Reginam[262], upon which the appellant relied in this connexion, is clearly distinguishable.  That was a case of one trial of five people. At the end of it, although all of the accused (including the appellant) were acquitted of murder as principals, and the other four of being accessories before the fact, the appellant was found guilty as an accessory before the fact to murder.  It was the acquittal, and, I would emphasise, acquittal of everyone, of murder that made a guilty verdict of accessory to murder offensive to the law as to logic.  In those circumstances there was, for juristic purposes no murder in respect of which any one of the accused could have been an accessory.

     [262][1958] 1 WLR 1050; [1958] 3 All ER 300.

234. Nor does R v Storey[263] assist the appellant.  That case turned on entirely different considerations including the admissibility of evidence given at a previous trial and the directions that the trial judge should have given in relation to it.

     [263](1978) 140 CLR 364.

235. It was put for the appellant that she and her son were referred to in identical terms in the learned trial judge's summing up and that it therefore followed that any result of the trial that was not common to both was legally unacceptable.  As a corollary, it was said that the trial judge should have given explicit instructions which required the jury to distinguish between the two of them.  The judge's directions reflected the way in which the case had generally been conducted.  No point was taken at the trial on these matters.  As I have already pointed out, the trial judge more than once gave directions which required the jury to consider separately the guilt or innocence of each of the accused.  He was correct to do so.  No objection to that course was taken by trial counsel.

236. Nothing turns on the acquittal of Mr Albion in the second trial when he was tried alone.  The record of that case is not, and cannot be before us.  However, it would not be at all surprising if there were quite different evidence called and submissions made in that second trial where Mr Albion faced the jury alone, without the difficulties for his case presented by the evidence of motivation and planning by his mother. 

237. The next submission for the appellant was that, although on the issues of provocation and self-defence the trial judge admitted the evidence by the clinical psychologist concerning the typical features (for example, emotional and physical submission, reticence in revealing acts of cruelty and threats by a domineering male to a woman, and an ultimate inability to bear any more of these) of a woman in the position of the appellant, his Honour's directions to the jury in regard to those matters had been defective.

238. At the forefront of the appellant's case on appeal with respect to the directions of the trial judge on this question was a contention that directions should have been given in accordance with, or analogous to, the directions discussed and prescribed by the Supreme Court of Canada in Malott v The Queen[264].  The reasons of Major J in that case, which followed earlier consideration of the "battered woman syndrome" in the Supreme Court of Canada in Lavallee v The Queen[265], show that his Lordship and the courts in Canada may regard "battered woman syndrome" as a separate defence.  The passage to which reference was made shows that the Supreme Court of Canada was there dealing with a case, like this one, in which expert evidence had been called[266].

     [264](1998) 155 DLR (4th) 513.

     [265][1990] 1 SCR 852.

     [266](1998) 155 DLR (4th) 513 at 521-522 per Major J.

     "The admissibility of expert evidence respecting battered woman syndrome was not at issue in the present case.  The admissibility of the expert evidence of Dr Jaffe on battered woman syndrome was not challenged.  However, once that defence is raised, the jury ought to be made aware of the principles of that defence as dictated by Lavallee[267].  In particular, the jury should be informed of how that evidence may be of use in understanding the following:

     [267][1990] 1 SCR 852.

     1.     Why an abused woman might remain in an abusive relationship.  As discussed in Lavallee, expert evidence may help to explain some of the reasons and dispel some of the misconceptions about why women stay in abusive relationships.

     2.     The nature and extent of the violence that may exist in a battering relationship.  In considering the defence of self-defence as it applies to an accused who had killed her violent partner, the jury should be instructed on the violence that existed in the relationship and its impact on the accused.  The latter will usually but not necessarily be provided by an expert.

     3.     The accused's ability to perceive danger from her abuser. Section 34(2)(a) [of the Criminal Code] provides that an accused who intentionally causes death or grievous bodily harm in repelling an assault is justified if he or she does so 'under reasonable apprehension of death or grievous bodily harm'.  In addressing this issue, Wilson J for the majority in Lavallee rejected the requirement that the accused apprehend imminent danger.  She also stated[268]

     [268][1990] 1 SCR 852 at 882-83.

     'Where evidence exists that an accused is in a battering relationship, expert testimony can assist the jury in determining whether the accused had a "reasonable" apprehension of death when she acted by explaining the heightened sensitivity of a battered woman to her partner's acts.  Without such testimony I am skeptical that the average fact-finder would be capable of appreciating why her subjective fear may have been reasonable in the context of the relationship.  After all, the hypothetical "reasonable man" observing only the final incident may have been unlikely to recognize the batterer's threat as potentially lethal.'

     …

     4.     Whether the accused believed on reasonable grounds that she could not otherwise preserve herself from death or grievous bodily harm.  This principle was summarized in Lavallee as follows[269]:

     'By providing an explanation as to why an accused did not flee when she perceived her life to be in danger, expert testimony may also assist the jury in assessing the reasonableness of her belief that killing her batterer was the only way to save her own life.'

     These principles must be communicated by the trial judge when instructing the jury in cases involving battered woman syndrome and the issue of self‑defence."

     [269][1990] 1 SCR 852 at 890.

239. The submission for the appellant that this Court should adopt a new and separate defence of battered woman syndrome goes too far for the laws of this country.  There is no such separate defence in Australia.  A trial judge will be constrained by any expert evidence given in a particular case with respect to these matters.  Alternatively, if these are not matters for expert evidence, but matters in relation to which there is a growing community awareness, (as incidentally, I think there may be) then they are matters for a jury to decide with proper assistance from the trial judge.  In some cases they may be matters both of expertise and common sense as they undoubtedly were here.  The appellant gave evidence of as many instances of cruelty and imposition as she could remember, and she explained why she was reticent about them, and also why, despite them, she became reconciled from time to time with Mr Osland.  The jury would have been conscious of the fact that, as in all cases of homicide, the deceased was not able to give his version of events which might have been markedly different from the two accused.

240. The psychological evidence given by Dr Byrne was not given in a vacuum.  It was called and given by him in the context of, and by reference to, the appellant's own evidence.  It could have had no other cogency.  The trial judge's summing up on these matters was given in the same context.  In those circumstances the summing up was both appropriate and adequate.  Indeed, it was not an unsympathetic direction to the appellant on these matters.

241. It is appropriate to quote at some length from the directions which the trial judge gave:

     "You may use the battered woman syndrome if you accept that Heather Osland was within it, to reach conclusions about her behaviour, that is her failure to leave at an earlier time, her acceptance of the promises by [Mr] Osland of reform of his conduct, the learned helplessness and hopelessness, the effect on her memory, and the abuse and the other matters instanced.

     You have to weigh those matters up against the facts as you find them to be, because the facts as you find them will either give the necessary support to Dr Byrne's conclusions, or, if you do not accept all of those facts or the substantial ones, the relevant ones, to destroy or diminish the opinion.

     Issues of her memory and other matters will be considered by you in the light of the whole of the evidence.  Mrs Osland herself in effect, in respect particularly of the final day, said that she had blocked these matters out of her memory.  On the other hand the reality is that evidence was given in great detail of abuse, physical and psychological, on a month by month basis over a period of years.  These issues are facts all for you.

     But it may not matter to you whether she fits within the syndrome at all.  It is after all only words to describe behaviour and consequences which occur in a relationship, extrapolated to erect some propositions for scientific purposes.  It is the behaviour that you should focus on, as disclosed by the evidence, and whether or not in the light of my instructions to you, concerning self-defence and provocation, you are satisfied that the Crown has negatived those defences.

     This primarily means considering, first, whether Mrs Osland and David Albion believed that Frank Osland was a then threat to their lives and safety, and if they did, whether they believed that on reasonable grounds, that is self-defence.  It will involve considering whether or not they killed him when experiencing a loss of self-control, what might possibly be regarded such loss of control that an ordinary person in those circumstances, that is their circumstances, might experience.  But you might, for example, use the battered woman syndrome to reach a conclusion that the Crown had not satisfied you, when Mrs Osland participated in his killing, that she had not finally snapped or reached a point where control was lost in response to a final provocation; and that as a woman who had been, as they would contend, degraded and beaten down over a period of years, that her reaction was that of an ordinary person in that situation.  In the light of that provocation you may – and it is entirely a matter for you – not have much difficulty in concluding, if you accept Mrs Osland's and all the others' evidence, that she was at least at some stages a battered woman within the syndrome.  Or even if no one had ever thought of the syndrome or sought to establish it.  The real problem may not be the issue of the syndrome, but in deciding whether or not the facts, the evidence, admit of self-defence through fear of an impending attack or admit a finding of loss of control that is the failure of the Crown to exclude them.

     You might think that a sufficient number of the characteristics of the battered wife or the typical characteristics of the relationship or of the battering male had been established by the evidence.  You may also be of the view that many perhaps of the consequences for the woman, described by Dr Byrne, have occurred in this case: changes in thinking ability, avoidance symptoms, increased alertness or arousal, learned helplessness.  But what you may find more difficult – or, if not more difficult, the critical thing to decide and reach a view about – is to connect those matters to the killing in this case, because of the way in which it occurred: that is, planned, if you think it was; use of drugs to induce helplessness, if you think it was, as against to calm him down; no significant abuse in the days preceding or the relevant day, if you view that evidence in that way; or the other side of it, ample abuse and threats; or no behaviour out of the norm, even if you regard it as unacceptable behaviour.

     There was no evidence that in the case of a battered woman it may be some relatively minor incident that might cause her to react in a way that ordinary people would not, in the murder context, but which, because she is a battered woman, does produce a response that would not otherwise be thought to be based on reasonable grounds.  It would be open to you, however, in the provocation context to consider whether or not there might be some relatively minor act of abuse – I do not mean trivial, but relatively minor act of abuse – which was, as it were, the last straw that breaks the camel's back and which produced a sudden loss of control for a woman in her circumstances that might possibly have caused her to react as she did, and which might cause an ordinary person in the circumstances in which she was to do so.  You will find the answers to these conundrums in the evidence which you decide to accept and in the light of the instructions as to self-defence and provocation which I will now give to you."

242. As appears from the extracts from the trial judge's charge which I have quoted, his Honour moulded his directions to accord with the facts of the case before the Court.  He was plainly correct to do so.  In the end, it was for the jury to decide whether the deplorable conduct of her husband as recounted by her had actually occurred and whether, in the circumstances, it justified the response of the appellant.  It was open to the jury to accept or reject the contentions of the appellant and of the psychologist on these matters.  Their verdict of guilty in her case strongly suggests that this is what the jury did.

243. The appellant complained that the summing up on self-defence was defective.  However, when the submissions are analysed they really come down to these matters: that although the directions with respect to self-defence were in terms accepted as being entirely unexceptionable, (and there were no very specific complaints about the trial judge's explanation of provocation), his Honour should have given those directions at a different point in his summing up.  It was put, in effect, that his Honour's comments and directions with respect to the psychologist's evidence and other evidence concerning the appellant's relationship with her husband should have been given after he had directed the jury on the legal principles governing the defences rather than before them.

244. I cannot accept this submission.  The trial judge's summing up properly and fairly dealt with these matters in an order which seemed to him to be appropriate, and in a way which an appeal court is not entitled to criticize.

245. Some other complaints were made in written submissions to the Court relating to the language used by the trial judge in discussing, both during the evidence and the summing up, the "battered woman syndrome", a term I use by way of shorthand only.  These complaints involved no more than a choice of language.  These are matters of semantics and are not open to legitimate criticism in the context of the case as a whole.

246. There were some complaints about the summing up which I regard as being more specific: that the trial judge should not have referred to the appellant's doctor (to whom complaints of violence had not been made) as "trusted" and, that his Honour should have dealt differently with the likelihood or possibility of a connexion between Mr Osland's repeated anal rape of the appellant and her recurrent condition of cystitis or urinary tract infection and her failure to complain of that imposition to the doctor.  The summing up was a long, fair and detailed one.  Even if it were not possible to regard the doctor as not being the appellant's trusted medical practitioner, in the sense of his having given long‑standing care and treatment to the appellant, a reference to him in those terms, and the way in which the trial judge referred to the absence of complaints to him could not possibly invalidate the trial.  Those matters are far too minor to attract such a consequence. 

247. It was said that the trial judge's directions with respect to the way in which the respondent dealt with lies told by the appellant were defective.  Once again no exception was taken at the trial to these directions.

248. Right from the outset, his Honour indicated that he regarded the lies told by the appellant as going to her credibility, and not as evidence of consciousness of guilt.  Senior counsel for the appellant at the trial foreshadowed that it would be part of her case that her client had "lived the lie" of the deceased's disappearance.  She addressed the jury on that basis.  In the absence of the jury, his Honour observed to the prosecution:

     "You did not make any submission to the jury or make any reference to the consciousness of guilt."

     The question was answered in the negative by the prosecutor.

     His Honour proceeded:

     "The lies you have referred to are just credibility lies."

     The prosecutor affirmed that to be so.

249. His Honour then said that he did not propose to give any directions as to consciousness of guilt as the Crown was not relying upon lies told by the appellant in that way and the case was conducted on that basis.

250. Accordingly, when his Honour directed the jury about the "cover-up" he did so by referring to the "essential mendacity of Heather Osland".

251. I do not read his Honour's charge on this subject, taken as a whole as affording any basis for a submission that the jury were left to utilise the appellant's lies as possible admissions of guilt.

252. In such circumstances the trial judge was not bound to give any further directions regarding the appellant's lies.  None were sought.

253. There is no substance in the appellant's written submissions that the tapes and transcripts of the intercepted telephone calls should not have been admitted because of their disproportionate, prejudicial effect.  As the Court of Appeal said, the evidence was highly relevant and probative.

254. Other complaints of minor misdirections were made.  They too related for the most part to matters of expression.  Read in the context of the summing up as a whole they were unexceptionable as indeed they must have appeared to counsel for the appellant at trial who there sought no redirection with respect to them. 

255. A submission was finally made that some evidence objected to as hearsay was wrongly rejected.  That evidence (mainly of prior consistent complaints) apparently intended by the appellant's counsel as a pre-emptive strike against a possible line of questioning by the Crown was rightly rejected although much of it, in any event, later found its way into evidence.

256. It follows from what I have said that there was no aggregation of errors to require that this appeal be upheld.  Furthermore, the Court of Appeal carefully reviewed the evidence as a whole to conclude that the verdict was not unsafe and unsatisfactory.  They have not been shown to be in error in so concluding.  My own review of the evidence brings me to the same conclusion.

257. Furthermore, having now read the judgment of McHugh J, I agree with his Honour's reasoning and conclusion that those acting in concert and present at the scene are liable for the acts of each other.

     Order

258. I would dismiss the appeal.