TAUFAHEMA v R

McCLELLAN CJ at CL : Following a trial before Wood CJ at CL and a jury the appellant was convicted of murder. There was an alternative count on the indictment, namely the use of an offensive weapon in company to avoid lawful apprehension (s 33B(2) Crimes Act 1900). The appellant was tried with a co-accused, Meli Lagi, who was acquitted of murder but found guilty of the alternative count ( R v Lagi [2004] NSWCCA 443).

The charges arose from the fatal shooting of Snr Const Glen McEnallay on 27 March 2002 at Hillsdale. When considering a “no case” application Wood CJ at CL summarised the facts upon which the Crown case was based which provides an appropriate summary for the purpose of this appeal: “On 27 March 2002 Senior Constable McEnallay was driving an unmarked police patrol car in Bunnerong Road, Matraville. Near the intersection with Military Road he observed a green Holden Commodore sedan, registration number AJK 32M. The possible presence of this vehicle in the area had previously been reported to him by an off duty police officer, Constable Dietrich, who had seen it at about 5:30 pm travelling at speed, and somewhat erratically, in Botany Road, Matraville. Senior Constable McEnallay asked for a vehicle check to be made and was advised that it had been reported as stolen. He followed the green Commodore into Botany Road, and then right into Beauchamp Street. The two vehicles stopped at the lights controlling the intersection of Beauchamp Street and Denison Road. In the meantime he had asked for assistance from other vehicles, and had also requested the driver of a caged police vehicle, which was in the area, to drop back, as he did not want the occupants of the green Commodore to be aware that they were being followed. In Dennison Street, at about 5:51:50, Senior Constable McEnallay activated his siren and lights, announcing his pursuit of the green Commodore, which made a right hand turn at speed into Grace Campbell Crescent. While attempting this turn the vehicle struck the gutter, or a traffic island, and came to a stop at about 5:52:10, as a result of damage occasioned to a wheel, which effectively immobilised it. At this stage Penisini, who was armed with a .38 Smith and Wesson revolver, exited the green Commodore and immediately fired 5 shots, in quick succession, at the driver's side window of the police vehicle which had come to a stop about 10 metres away. Senior Constable McEnallay, who had been unable in the time available to draw his own weapon, or to seek a position of safety, suffered gunshot wounds to the chest and head which led to his death, seven days later on 3 April 2002. The five shots, of which four struck home, were fired in a public place, in the midst of a residential precinct and in an area where there were a number of pedestrians and children, some of whom gave evidence in the trial of Lagi and Taufahema. Penisini, along with the other occupants of the green Commodore who included Lagi and John Taufahema, ran from the vehicle in a general easterly direction, through some units in Nilson Avenue and Grace Campbell Crescent. On their way, Penisini dropped his handgun, and a pouch containing a number of .45 calibre and .38 calibre cartridges, on the footpath outside 9 Grace Campbell Crescent. Eight other live rounds were recovered on the following day, four of which had been dropped on the roadway outside 9 Nilson Avenue, and the remainder of which had been dropped in the rear yard of those premises. Lagi was seen to drop his weapon, a .38 Smith and Wesson revolver, in the garden of 12 Grace Campbell Crescent, on his way to a residence at 5 Rhodes Street, where he managed to hide from police, in a laundry, for several hours, before eventually making his way home. Before doing so, he exchanged his clothes for clothing which he found in the laundry. He was not arrested until 3 April, although prior thereto arrangements had been made, through his solicitor, for him to surrender to police on 4 April. John Taufahema and Penisini also made their way towards Rhodes Street. They were pursued on foot by Senior Constable Day and Constable Kolosque. While moving through the small area of park, which runs between the premises 7 and 9 Grace Campbell Crescent respectively, and up a hill to Rhodes Street, John Taufahema presented his handgun, a .38 Smith and Wesson five round revolver, at Constables Day and Kolosque and threatened to shoot them if they did not back off. Both officers courageously maintained their pursuit. They had drawn their own service weapons, and repeatedly warned Penisini and Taufahema to stop and to drop the weapon which the latter was holding. When they reached Rhodes Street, the two offenders made their way north, still pursued by Constables Day and Kolosque. A motor vehicle driven by Lamia Kassis was observed to be slowing for a speed hump. John Taufahema made his way to the driver’s side of this vehicle, and pointing his weapon at Ms Kassis, instructed her to get out of the vehicle. She complied with this request. In the meantime Penisini attempted to force his way into the front passenger seat. At this point Constables Day and Kolosque caught up with the men and began to struggle with them. Senior Constable Day attempted to subdue Penisini, and eventually did so after hitting him over the head with his service pistol and spraying him with OC spray. Constable Kolosque fought with Taufahema, who was still holding his handgun and pointing it at the two officers. They struggled over the ignition key, and at one stage Taufahema managed to get the vehicle into motion, but it moved backwards, striking a vehicle behind it. Eventually Taufahema was overpowered by Constable Kolosque, with the assistance of Senior Constable Day, who had come to his aid, although not before being struck on the head several times with the butt of a service weapon and also being sprayed with OC spray. In the meantime, Penisini, who had been sitting for a while on a fence, no doubt being still affected by the spray, had moved away from the vehicle into the park to the east of Rhodes Street. He was pursued by Senior Constable Day, and with the assistance of Constable Rowbottom, was arrested in that park. The weapon of John Taufahema was recovered from the vicinity of Ms Kassis’ vehicle. It is inappropriate to make any further reference to Motekiaa Taufahema, since he is yet to face his trial, other than to observe that he was seen to be in the company of the three offenders now before the Court, and to have been the driver of the green Commodore, at about 5 pm. He was arrested in the rear yard of premises at 31 Rhodes Street, moments after the arrest of John Taufahema, and a .357 Magnum six-chamber revolver, which he was seen to drop in the garden of 33 Rhodes Street, was recovered in that location. A search of the green Commodore revealed that contained within it were gloves, hats and an ice hockey mask, items capable of being used as disguises. Additionally and adjacent to, or in, Ms Kassis’ vehicle were found another pair of gloves and a cap. Penisini was seen to be wearing sunglasses. Each of the four weapons recovered this night had been stolen from a security company two weeks earlier. The weapons of the two offenders now before the Court were fully loaded and were not fired during the relevant events. Nor was that of Mottekiaa Taufahema. It was the possession of one of these handguns by Lagi, which gave rise to the firearm offence to which he pleaded guilty. The offences concerning the vehicle of Ms Kassis, and the use of a firearm, to which each of Penisini and John Taufahema pleaded guilty, related to the events which I have outlined as having occurred in the vicinity of the speed hump in Rhodes Street.”

The appellant’s brother, Motekiai Taufahema stood trial separately and was convicted of murder. That conviction was quashed and a verdict of acquittal entered by the Court of Criminal Appeal ( Taufahema v The Queen (2006) 162 A Crim R 152). A Crown application for special leave to appeal from that judgment was heard by the Full High Court on 7 December 2006. The decision is reserved.

As Wood CJ at CL noted, Penisini, who fired the fatal shots, pleaded guilty to a charge of murder.

The Crown advanced the charge of murder on two alternative bases. The first alleged a joint criminal enterprise “common purpose” murder. The second alleged “felony murder”, for which the foundational crime was a breach of s 33 of the Crimes Act .

The appellant says that the trial judge made a significant error in his directions with respect to the necessary elements for a charge of joint criminal enterprise common purpose murder. It is further submitted that, notwithstanding the agreement of counsel that the alternate verdict of manslaughter should not be left to the jury, his Honour should have done so. The genesis of the problem

The genesis of the primary problem identified by the appellant is found in the Crown opening. During the course of that opening the Crown Prosecutor said: “The Crown says that and what has to be established also is that in joining in that joint criminal enterprise to use the guns in the sense I’ve described, not necessarily fire them, that they contemplated the possibility that someone might suffer injury or serious injury or death. It is the Crown case that in that way if they contemplated the possibility of injury or death arising from the use of the weapon or the weapons to avoid lawful apprehension, that is enough, if in fact injury and then death results from the use of those weapons, even if they did not intend that anyone, any individual, would be shot.”

I have emphasised the words which are said to give cause for complaint.

In the course of his closing address to the jury the Crown Prosecutor said: “You might equally be satisfied, and I submit that you would be satisfied, that they are guilty because of both ways, both alternative ways that the Crown seeks to prove murder. It matters not which each of you were satisfied about so long as ultimately, as his Honour will tell you, at the end of the day you are all satisfied beyond reasonable doubt of the accuseds’ guilt of that offence. The first way concerns the Crown saying that each of these accused was involved in a joint criminal enterprise with Sione Penisini to avoid lawful apprehension and that that joint criminal enterprise involved the intended use of any one of their guns, by either brandishing or pointing the gun at the police officer, with the intention of enabling them to get away. In that joint enterprise, if you are satisfied also that the accused with whom you are dealing contemplated the possibility that someone, namely the police officer, might suffer serious injury or death even though he did not intend that the police officer be shot and did not intend much less that the officer be seriously injured or killed but, having contemplated the possibility of serious injury or death being occasioned, the accused embarked on that criminal enterprise, then the law says he is guilty of murder . Even though, as I said, he didn’t intend that death would be occasioned, didn’t intend that the victim be seriously injured, didn’t intend that the victim would be shot but contemplated the possibility that it might happen. If they contemplated the possibility of serious injury or death and embarked on that criminal enterprise together with Penisini then that accused is guilty of murder that way.”

Again, the words about which particular complaint is made have been emphasised. The written directions

In the course of counsel’s address to the jury and before his Honour summed-up, the trial judge, as is now common, provided the jury with written directions. They were provided before counsel for the appellant addressed the jury. In relation to “joint enterprise murder” the directions were as follows: “(ii) Count 1: Murder (i) Joint Enterprise Murder What the Crown must prove beyond reasonable doubt are the following elements: (a) The accused whose case you are considering was party to a joint enterprise with the men who were in his company that if faced with the possibility of being arrested, one or other of them would use a firearm with intent to prevent such arrest. (b) The accused whose case you are considering contemplated that it was possible that, in using a firearm to prevent their arrest, the user would do so in a way that either resulted in the death of, or really serious bodily injury to the person attempting to arrest them ; (c) With that possibility in contemplation, the accused continued to participate in that joint enterprise. (d) Penisini was party to that joint enterprise, and used his firearm by shooting Constable McEnallay for the purpose of preventing their lawful arrest and with the intention of killing such Officer or of causing him grievous bodily harm; and (e) As a result of a shot or shots fired by Penisini Constable McEnallay died: “Use” means presentation or brandishing of a firearm. What the accused must contemplate as a possibility is that the firearm would be used in a way that resulted in the death or really serious bodily injury of another person. ” (emphasis, but for paragraph (d) added)

I have again emphasised the words which give rise to the appellant’s complaint. The submission of trial counsel

The submission of the appellant in this appeal was that para (b) of the written direction failed to tell the jury that before they could convict the appellant of murder on the basis of a joint enterprise they must be satisfied that the appellant contemplated, not only that Penisini would use a firearm, but that he would do so with the intention of killing or inflicting really serious bodily injury upon the policeman. The error is said to be encapsulated in the final paragraph of the written direction which provides only that the “accused must contemplate as a possibility” … “that the firearm would be used in a way that resulted in the death or really serious bodily injury of another person” rather than used with the intention of causing death or really serious bodily injury. A similar deficiency is submitted to be present in the opening remarks of the Crown Prosecutor to which I have earlier referred.

Although no complaint was made about his Honour’s directions at the trial counsel for the appellant put the matter differently. In the course of his address to the jury he said: “In my submission to you that it is a very big ask to suggest that John Taufahema at that time at the car had that contemplation, that it was known that Penisini would do what he did and do it intentionally. Some things to consider when you are considering that element of the offence is there is a problem of opportunity for that kind of contemplation. All this happened very quickly. The pursuit happened in a matter of seconds. It did not give Mr Taufahema very much time at all I would suggest to contemplate such a possibility. It must be proved beyond reasonable doubt that Mr Taufahema subjectively himself had that contemplation.” The summing up of the judge

Apart from the written directions the trial judge dealt with the question of joint enterprise murder at a number of points in his summing-up.

Having reminded the jury that he had provided them with written directions his Honour confirmed that the Crown presented the case in two ways. His Honour firstly considered joint enterprise murder and after referring to the written directions said: “… but it arises as a matter of law where two or more people enter into a joint enterprise to a joint understanding or agreement to do a particular act. If, in the course of carrying out that act, something further is done which is in the contemplation of the accused whose case you are considering as a possibility, then that accused is also criminally responsible for it even though it may not have been the immediate object of a common enterprise and even though that result was not intended or done by that particular person.”

His Honour then provided an illustration from a hypothetical bank robbery. No complaint is made of his Honour’s use of the illustration or of the elements of the offence which are contained within it. His Honour speaks in the illustration of knowledge of the possibility that the shooter would use a weapon “intentionally to kill or to cause really serious bodily harm.” Pausing to consider how the jury may identify a person’s state of mind his Honour then turns to consider with particularity the elements of a joint enterprise murder. Reminding the jury of para (a) of the written directions his Honour then in referring to para (b) says: “Next, the accused whose case you are considering contemplated that it was possible that in using a firearm to prevent their arrest, the [user] would do so in a way that either resulted in the death of or really serious bodily injury to the person who was attempting to arrest them.”

Having considered the other paragraphs of the written direction his Honour discusses the meaning of “use” saying: “To achieve that result you might think that the weapon has to actually be discharged but “use” does encompass not only the actual firing of the weapon but also its presentation or pointing at someone, although clearly merely pointing at it would not normally present the possibility, the consequence of death or really serious bodily harm.”

Complaint is made by the appellant that in framing his directions to the jury in this manner his Honour, rather than identifying the elements necessary for a joint enterprise murder, has directed the jury in terms of manslaughter where an intention to kill or cause serious harm is not required. It is submitted that the mere presentation or pointing of the weapon at someone, in the absence of evidence of an intention to discharge so as to kill or injure another person could not constitute murder.

Later, in the summing-up when referring to the case presented by the Crown Prosecutor, his Honour said this: “Initially, the way the Crown pursued its case of murder, the Crown Prosecutor recognised there was no evidence of any conversation between the men in the green Commodore, either during the pursuit or after the vehicle was immobilised. He asked you to infer from the evidence as a whole that they entered into the joint enterprise whereby one or other of them – and it turned out to be Penisini – would use a firearm by pointing it at the police officer so as to prevent their apprehension and the supporting inference that they each contemplated the possibility that if a gun was used in that fashion, then there was a possibility of a police officer being killed or occasioned really serious bodily harm.”

The appellant complained of this direction that his Honour had not identified for the jury the necessity for the Crown to prove that the appellant contemplated the possibility that the gun would not only be used, but, used with the intention of killing or injuring the policeman.

After completing a summary of the Crown submissions his Honour directed the jury’s attention to the submissions of counsel for the defence. His Honour said: “So, he submitted today, that the essential foundations of the Crown case requiring proof of John Taufahema’s adherence to a joint enterprise are simply not established. He said it was a very big ask to infer that he contemplated the possibility that Penisini would use his gun intentionally in a way that would bring about death or occasion serious bodily harm to a police officer. In that regard, he invited you to take into account what he submitted to be an insufficient opportunity for him to form that necessary contemplation in his mind. He further submitted that Penisini’s act was inconceivably stupid and vicious and not the kind of event that would have been within his contemplation, and he also said there was no suggestion that he behaved himself in a similar way, for example, by pointing his weapon at the police vehicle or at the police officer.”

After the jury had retired to consider its verdict they delivered a question to his Honour. That question sought a definition of joint enterprise. His Honour responded by saying, inter alia: “Where joint enterprise comes into this case is that the Crown says in relation to the murder count that there was a joint agreement or understanding between the three men that a weapon would be used by one of them to prevent their lawful arrest in a situation where they were confronting arrest by Police Officer McEnallay. Clearly, in a situation such as that, the person who presents the gun or uses the gun has committed an offence of using a weapon with intent to prevent lawful arrest. The joint enterprise between them was relied upon to extend the liability of the people who do not use the gun but who were party to the understanding, but that requires the Crown to prove that those other persons, that is the person who did not use the gun, contemplated the possibility that in using the weapon the man who used it would do it in a way which brought about the death or serious bodily injury of another person.”

His Honour continued repeating that formulation of the elements which the Crown was required to prove. His Honour finished by saying: “The joint enterprise is the understanding or agreement between them, and if the parties contemplate the possibility that one of them will do something in the course of it that will bring about a particular result, here death or grievous bodily harm, then their criminal liability attaches even though they might not themselves have used the weapon.”

Without retiring the foreperson of the jury asked a further question in these terms: “We just wanted to clarify – what we really were wanting to know, is the joint enterprise to kill Constable McEnallay or can a joint criminal enterprise be for anything, for example, that they were going to do something else.”

His Honour replied: “I understand the position. The joint enterprise which you are concerned with is a joint enterprise for the murder count to use a weapon for the purpose of preventing their lawful arrest. You can forget about any other joint enterprise. If you think they were on a joint enterprise to go off and commit a robbery in Melbourne or do something else, put that out of your mind because that is not relevant for this joint enterprise. The joint enterprise you are concerned with is an understanding or agreement that one or other of them would, when they are confronted with Constable McEnallay having stopped his vehicle behind them, use his weapon for the purpose of preventing their lawful arrest. If they contemplated the possibility that in using his weapon in a way that would bring about, that is intentionally in a way that would bring about the death or serious bodily injury of Constable McEnallay then the Crown has proved joint enterprise murder.” Discussion

The appellant submitted that his Honour’s written direction failed to correctly identify the elements necessary for joint enterprise murder. The problem, acknowledged by the Crown in this appeal, is that the direction did not state that the appellant must have contemplated that it was possible that Penisini would have deliberately pulled the trigger of the gun intending to cause death or grievous bodily harm.

It is submitted that this problem also infects the oral directions. Even where intention is referred to, his Honour expressed it in the phrase “intentionally in a way that would bring about …. ” which does not convey the essential idea that the appellant had to contemplate that Penisini would discharge the firearm intending death or serious bodily injury. It is submitted that use of the words “in a way” and the extended meaning given to the word “use” in the directions, which is said to mean “presentation or brandishing” of a firearm, effectively confined the jury to consideration of the elements of the offence of manslaughter.

I have indicated that the jury sought further directions on the matter. It is submitted that the further directions do not cure any of the existing problems. It is accepted that the maintenance of the word “use” meaning “brandish” or “present” and the continued use of the words “in a way”, convey foresight that Penisini would deliberately brandish the gun that may bring about death or serious bodily injury, but omit the necessary requirement that the appellant foresaw that Penisini might use the gun with the intention of killing or seriously injuring the constable.

In my opinion the appellant’s submission must be accepted. The offence of murder relevantly required in Penisini an intention to kill or inflict grievous bodily harm on the policeman: (the offence was not advanced on the basis of reckless indifference (s 18(1)(a) Crimes Act 1900)).

In R v Sharah (1992) 30 NSWLR 292 Carruthers J with whom Gleeson CJ and Smart J agreed said of common purpose murder: “It is well-established that there are two classes of common purpose murder. The first class is where the Crown proves that the accused was present and that the deceased was killed in accordance with an understanding or arrangement to which the accused was a party and that that understanding or arrangement included the intent charged, that is, either to kill or to cause grievous bodily harm. The second class of case is where the accused lends himself to a criminal enterprise knowing that a potentially lethal weapon was being carried by one of his companions and in the event that it is in fact used by one of his partners with an intent sufficient for murder, then the accused too will be guilty of that offence of murder if the Crown establishes beyond reasonable doubt that the accused contemplated that in the carrying out of the common unlawful purpose, one of his partners might use a lethal weapon with the intention of at least causing serious bodily harm. In the recent case of Hui Chi-ming v The Queen [1992] 1 AC 34 (a case to which, I regret to say, this Court was not referred by either party) the Privy Council were concerned with a case of the second class. The present case is also within the second class.”

See also the discussion in McAuliffe v The Queen (1995) 18 3 CLR 108 at 114-117.

The present case was advanced by the Crown as falling into the “second class” for which, as Carruthers J emphasised, an essential element is that the accompanying person understood that the killer might use a lethal weapon “with the intention of at least causing serious injury.”

As I have indicated, the Crown accepted that for the reasons advanced by the appellant there are difficulties, both in the written directions and in the primary oral directions, given by his Honour. However, it was submitted that these problems are overcome by the direction which his Honour finally gave to the jury in response to their question. It is submitted that because the jury were given this as the final direction on the matter it operates to cure any previous problems.

In my opinion this submission cannot be accepted. Apart from the fact that the jury had the written directions with them, in the jury room and, given their concern about the issue, it may be presumed they spent time considering them, the final direction which his Honour gave was potentially ambiguous. Although the word “intentionally” is used, it qualifies the manner of use – “in a way” – but does not direct the jury to consider whether it was satisfied that Penisini intended to kill or cause serious harm. In my view, the matter was left with the jury on a basis which would have enabled them to bring in a verdict of murder without having found that the appellant understood that Penisini may possibly have intended to use his gun to kill or seriously injure a policeman. It may be that the evidence would admit of this finding, but in my opinion, the appellant is entitled to be tried by a jury which has been appropriately instructed. The matter was effectively left with the jury on the basis that they could convict on a charge of murder, if they found the elements necessary for joint enterprise manslaughter.

In these circumstances, the Crown having disavowed any submission that the jury’s verdict could be sustained on the basis of felony murder, in my opinion, this Court has no alternative but to quash the conviction and order a new trial. Alternative of manslaughter

The appellant further submitted that, notwithstanding the agreement of counsel at the trial, the trial judge should have left manslaughter as an available alternative verdict to the murder count. The transcript indicates that the matter was discussed between counsel and the trial judge, the latter being influenced in his approach by the fact that there was an alternative count on the indictment, namely count 2, being the offence under s 33B of the Crimes Act . His Honour said: “And when you have an alternative count on the indictment which is less than manslaughter, that seems to be the logical way to handle it.”

In R v Kanaan [2005] NSWCCA 385 this Court considered the relevant principles which a trial court should apply when consideration is being given to whether manslaughter can be left as an alternative verdict in a murder trial. Hunt AJA said: “The following propositions follow from those cases: (1) Manslaughter cannot be left for the determination of the jury as an alternative verdict in a murder trial unless there is evidence to support such a verdict (or unless the case on manslaughter is “viable”). (2) However, if in a murder trial the jury nevertheless returns a verdict of manslaughter where there is no evidence to support it, the judge may request them to reconsider the matter but, if they persist in that verdict, the judge must accept it. (3) If there is evidence to support an alternative verdict of manslaughter, the judge must leave that issue to the jury — notwithstanding that it has not been raised by any party, and even if a party objects (or all parties object) to the issue being left to the jury. (4) (a) If there is evidence to support an alternative verdict of manslaughter, and if the judge has not left that issue (for whatever reason), there has been an error of law. (b) Subject to the provisions of the Criminal Appeal Rules, r 4 (see pars [99]–[100] infra ), the appellant is entitled to a new trial unless the Crown establishes that no substantial miscarriage of justice has actually occurred. (c) In determining whether there has been such a substantial miscarriage, it is not permissible to reason that the jury’s verdict of guilty of murder at the first trial excludes any consideration of the alternative verdict of manslaughter at the new trial.”

In Gilbert v R (2000) 201 CLR 414 the High Court considered a circumstance not dissimilar to the present case. The distinguishing feature was that in that case the judge told the jury that if the prosecution established beyond reasonable doubt that the accused knew that his brother intended, either to kill or to inflict grievous bodily harm upon the victim, the accused was guilty of murder. If not, and, if the jury was not satisfied beyond reasonable doubt that the accused knew before they got to the scene of the crime that the intention of anyone was to kill or inflict grievous bodily harm, the verdict must be one of not guilty. The accused was convicted of murder.

Before the Court of Appeal of Queensland it was common ground that manslaughter should have been left to the jury as a possible verdict. However, that court dismissed the accused’s appeal against conviction on the ground that no substantial miscarriage of justice had occurred.

By majority the High Court reversed the decision of the Queensland Court of Appeal. In doing so the court adopted with approval a passage from the judgment of McLachlin J speaking for a majority in the Supreme Court of Canada in R v Jackson [1993] 4 SCR 573. In that case the trial judge had correctly directed the jury in relation to murder and the jury returned that verdict. However, McLachlin J said: “Nevertheless, I agree with the Court of Appeal that one cannot be satisfied the verdict is just, given the failure of the trial judge to set out the basis for convicting Davy of manslaughter under s 21(1) and (2) and the absence of any instruction that a party may be guilty of manslaughter even though the perpetrator is guilty of murder. As Lord Tucker stated in Bullard v The Queen [1957] AC 635 at 644: ‘Every man on trial for murder has the right to have the issue of manslaughter left to the jury if there is any evidence upon which such a verdict can be given. To deprive him of this right must of necessity constitute a grave miscarriage of justice and it is idle to speculate what verdict the jury would have reached.’”

When adopting this passage Gleeson CJ and Gummow J said: “McLachlin J said that, in such circumstances, the test for the application of the proviso is whether it is clear that a jury, properly instructed, would necessarily have returned a verdict of murder.”

In the present case even if there was not the identified problem in the directions given in relation to joint enterprise murder, in my opinion, the evidence before the jury was capable of supporting a conviction for manslaughter. The alternative verdict should have been left with the jury (see also Gillard v R (2003) 219 CLR 1). Orders

In my opinion the appeal must be upheld, the conviction for murder quashed and a new trial ordered.

SIMPSON J: I agree with McClellan CJ at CL.

PRICE J: I agree with McClellan CJ at CL.