Proud v R (No 2)

1. [1]

   BASTEN JA: I agree with R A Hulme J in respect of each of the grounds of appeal. It follows that the appellant's conviction must be set aside: as a retrial is appropriate, there is no reason not to direct it.

2. [2]

   There are two issues which arise from these conclusions which may be thought to warrant brief comment. First, there is at least a superficial inconsistency between the rejection of the proviso with respect to ground 1 and the rejection of ground 3. The inconsistency is superficial, because the onus was on the prosecutor to establish that, despite the error constituted by ground 1, no substantial miscarriage of justice had actually occurred. On the other hand, the onus was on the appellant, in support of ground 3, to establish that the verdict was unreasonable or could not be supported having regard to the evidence. However, there was a more basic reason why the proviso did not apply in the present case. The misdirection, which, most unfortunately, may have left a cloud over the appellant's evidence, constituted an irregularity which can be described as "such a departure from the essential requirements of the law that it goes to the root of the proceedings": Wilde v The Queen (1988) 164 CLR 365 at 373 (Brennan, Dawson and Toohey JJ); see also Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [6]-[8] (Gleeson CJ); [35]-[36] (Gummow and Hayne JJ); [105]-[109] (Kirby J) and [158] (Callinan and Heydon JJ). The effect of the proviso would depend upon this Court's assessment of the explanations given by the appellant for her apparently damning admissions, in circumstances where she had been deprived of her right to have the jury assess her evidence without warnings as to its possible unreliability. Although the scope of the principle articulated in Wilde is not capable of precise description, this is a case where it cannot be said that no substantial miscarriage occurred; the miscarriage arose from the significant departure from the principles governing a criminal trial with a jury.

3. [3]

   The second matter concerns the directions given in relation to the involvement of the appellant in what may colloquially be described as a joint criminal enterprise. I specifically agree with the statements of R A Hulme J concerning the manner in which questions of accessorial liability are left to the jury. The submissions in the present case provided a lucid example of the risks of using language which departs from the basic principles of the criminal law. Because the appellant was said to have engaged in a "joint criminal enterprise" it was suggested that the jury had to be satisfied that there was some form of "agreement" between the co-offenders, the scope of which was to be identified, together with "acts of participation" which were to be particularised for the jury.

4. [4]

   The principles of accessorial liability are set out in Pt 9 of the Crimes Act 1900 (NSW). While it is true that some of the language such as the reference in s 345 to a "principal in the second degree" and in s 346 to an "accessory before the fact" may be opaque to a lay juror, the factual requirements as to state of mind and level of involvement are well-established by the cases and can be explained with reasonable clarity in ordinary language. It is at least in part the departure in recent times from those established concepts which led the UK Supreme Court to revisit the directions required in R v Jogee [2016] UKSC 8.

5. [5]

   JOHNSON J: I have had the advantage of reading the judgment of R A Hulme J and the additional comments of Basten JA. I agree with the reasons and orders proposed by R A Hulme J. In addition, I agree with the conclusion of Basten JA at [2] with respect to the proviso.

6. [6]

   R A HULME J: Michelle Sharon Proud was tried before Harrison J and a jury for the murder of Ms Katherine Foreman at Corrimal on 27 October 2011. She was jointly indicted with Bradley Max Rawlinson and Bernard Justin Spicer. A co-offender, Wendy Evans, had earlier pleaded guilty.

7. [7]

   On the 28th day of the trial Bernard Spicer made an application to be discharged so as to be tried separately from his co-accused on account of certain evidence that had been given by Ms Proud. The learned trial judge acceded to that application. Mr Spicer was subsequently tried and convicted.

8. [8]

   On 11 April 2014 the jury returned verdicts of guilty in respect of Ms Proud and Mr Rawlinson. On 3 July 2014 Ms Proud was sentenced to imprisonment for 20 years with a non-parole period of 14 years.

9. [9]

   Ms Proud appeals against her conviction but not her sentence. The grounds of appeal are:

10. [10]

    Ms Proud was granted leave at the hearing on 11 March 2016 to add a further ground (see Proud v R [2016] NSWCCA 41 at [17]):

The prosecution case

1. [11]

   Katherine Foreman died at her home in the early hours of 27 October 2011 when the upstairs bedroom in which she was sleeping was set alight. Petrol had been poured inside the bedroom and ignited. Ms Foreman's body was found lying on the landing at the top of the stairs. The Crown case was that this was the culmination of a joint criminal enterprise between Evans, Rawlinson, Spicer and the appellant to either kill or at least cause serious harm to Ms Foreman.

2. [12]

   The relationships between the participants in the joint criminal enterprise were complicated: see the description provided by Harrison J in sentencing Evans, Rawlinson and Spicer (R v Evans; R v Rawlinson; R v Proud [2014] NSWSC 979 ("the sentence judgment")) at [6]-[11]. It will suffice for present purposes to note that Mr Rawlinson and Ms Evans were in a relationship as were Mr Spicer and the appellant. Ms Evans, a former court officer, was a friend of the deceased, a solicitor, they having met through their work. The appellant was a friend of Ms Evans; on the Crown case a close and loyal friend. Mr Spicer was a friend as well but to a lesser extent.

3. [13]

   There was evidence of various events which occurred from July 2011 which indicated that Ms Evans and Mr Rawlinson bore the deceased a considerable degree of animosity which developed to the point when the plan was formulated which led to the murder. The prosecution contended that the appellant was motivated by her loyalty to Ms Evans to assist with the plan; from what she had heard from Ms Evans she adopted a similar degree of animosity towards the deceased.

4. [14]

   It was the prosecution case that in the early hours of the morning of 27 October 2011 Wendy Evans and Bernard Spicer entered Ms Foreman's home using keys that had been provided by Bradley Rawlinson. Spicer spread petrol around the bedroom and Evans lit the fire.

5. [15]

   Harrison J found that Spicer, Evans and Rawlinson had an intention to kill (sentence judgment at [120], [168]; R v Spicer [2015] NSWSC 519 at [38]). Rawlinson was not present when the fire was set but was involved in planning for it to occur. He was described by the judge as "the principal and driving force behind the conception and consummation of the offence" (sentence judgment at [157]).

6. [16]

   The Crown case against the appellant was that she acted as an intermediary between Evans and Spicer. She was also involved in arranging payment by Evans to Spicer and herself for their involvement. Harrison J found the appellant to have been "a willing and enthusiastic contributor in the plan to cause very substantial harm to the deceased" but, as a party to "an agreement to cause grievous bodily harm", her culpability was distinguished from the others (sentence judgment at [173]-[174]).

7. [17]

   The principal evidence against the appellant included a covertly recorded conversation she had with another person seven weeks after the murder in which, on the Crown case, she spoke of the instructions she had given her partner, Bernard Spicer, as to what he was to do. There was also evidence of her involvement in the transfer of money by Wendy Evans prior to the murder and later following up on the payment of an outstanding amount.

8. [18]

   The appellant had a conversation with a friend, Ms Danielle Gallagher, at the appellant's home on 15 December 2011. Unbeknown to her it was being recorded. (Exhibit AAAE at p267)

9. [19]

   The appellant asked Ms Gallagher if she could "keep a really, really, really big secret". She said she was being investigated by the Homicide Squad and proceeded to tell Ms Gallagher how Ms Foreman had been killed. She made various disparaging comments about the deceased but claimed that what occurred was intended to be "a warning thing for her to back off"; "they weren't supposed to kill her". She told Ms Gallagher of a plan to provide police with a story that would exclude Spicer from involvement. In the course of this conversation the appellant said:

10. [20]

    The appellant said in her evidence in chief that Wendy Evans rang her on the night of 25 October 2011 and "asked me if I knew anyone that could do something to Katie". She replied, "No". She told Mr Spicer of the request and "that I didn't want him getting involved in it".

11. [21]

    The appellant said that she later heard Mr Spicer on the telephone saying "I will do it". He later "told us we were going on a holiday" to Wollongong and that Wendy Evans would drive them there. On 26 October 2011 Ms Evans collected her and her three children from their home at Whalan and drove them to the Oasis Motel at Windang. On the way she asked Ms Evans what Mr Spicer had meant when he said "he will do it". Ms Evans explained that "she was getting BJ to scare Katie"; "she wanted someone to go in there … mess her up to the point she didn't look pretty anymore, bash her to the point she was put in hospital because she thought she was crash hot". The appellant said that she told Ms Evans, "If BJ said he'll scare, he'll just scare her". She also said that she (the appellant) did not want to get involved in it.

12. [22]

    The appellant said that after arriving at the motel, Ms Evans left and went back to pick up Mr Spicer and her step-daughter. Late that night Ms Evans returned to the motel and Mr Spicer went away with her. The appellant claimed that "she was taking him to Kmart" although she did not know why. Mr Spicer returned sometime in the early hours the following morning. He told her what had occurred:

13. [23]

    The appellant claimed that she did not become aware that Ms Foreman had been killed until the following afternoon (27 October). She told Mr Spicer who said "It wasn't supposed to happen like that".

14. [24]

    The appellant's counsel asked her about the conversation she had on 15 December 2011 with Danielle Gallagher. She said she had been trying to concoct an untruthful story to conceal Mr Spicer's involvement. She denied that she had any prior knowledge of what was to occur aside from the conversation she had in the car with Ms Evans on the way to Windang.

15. [25]

    She was taken specifically by her counsel to the part of the conversation with Ms Gallagher that included her saying "like I said to BJ, 'All you do is … go in there, you mess her up a bit'". She explained:

16. [26]

    She maintained that she did not give instructions to Mr Spicer. She was simply conveying what Wendy Evans had told her.

17. [27]

    The appellant maintained the essence of this account in the course of cross-examination by the Crown Prosecutor. She explained that when she told Ms Gallagher that "we wanted to get another car" she meant "he [Mr Spicer] wanted to get another car".

18. [28]

    She maintained that when she said to Ms Gallagher "I said to BJ" she was not conveying something that she herself had said to Mr Spicer. What she meant to be conveying was that, "Wendy said to BJ". And where she was recorded as having said "I said 'damage her face'" she meant that "Wendy said, 'damage her face'".

19. [29]

    The appellant said in her evidence in chief that sometime after returning home to Whalan she had a conversation by telephone with Wendy Evans in which she asked Ms Evans "what the hell had happened". She said Ms Evans replied:

20. [30]

    In cross-examination, she said (with obvious reference to the conversation with Ms Gallagher):

21. [31]

    Ms Peggy Case is the sister of Bernard Spicer. Ms Case was employed by the TAB and she had a TAB account which she allowed her brother to use. On 26 October 2011, an amount of $1000 was deposited into her account after the appellant telephoned her and said that her friend Wendy was going to put money into the account. Ms Case asked her why and the appellant explained that she was going to Wollongong for a few days because she was stressed out. Ms Case said that she withdrew the money from the account and gave it to her brother. There was evidence that the deposit occurred at 11.57am and Ms Case made the withdrawal at 12.33pm on 26 October 2011.

22. [32]

    Ms Case also gave evidence of another sum of $1000 deposited to her account which she understood was money from Wendy. Her brother asked her to withdraw it and he came and collected it. This occurred on 8 November 2011.

23. [33]

    A sum of $350 was deposited to Ms Case's account on 25 November 2011 which she withdrew and gave to her brother.

24. [34]

    There was evidence that the appellant and Mr Spicer were angered because Ms Evans had not paid the full amount promised. Ms Aimie Hull, who had known the appellant since school, gave evidence that after the appellant had returned from her trip to Wollongong she complained that "Wendy dogged on us". A few days later the appellant told her that she was waiting on Wendy to put "a couple of thousand" dollars in her account. A couple of days after that the appellant told her that Wendy had not paid the money and said "if she didn't pay the money they were going to bash her".

25. [35]

    The pursuit by the appellant and Mr Spicer of the money owed by Ms Evans was vividly illustrated by a voice message the appellant left for Ms Evans on 18 November in which she said:

26. [36]

    The appellant denied in her evidence that she had any knowledge or involvement in the transfer of money from Ms Evans (and Mr Rawlinson) to Mr Spicer prior to the death of Ms Foreman. She only found out later when Mr Spicer told her. She explained that contact between Ms Case's phone and her home landline phone between the deposit to and withdrawal from Ms Case's TAB account on 26 October 2011 did not involve her as she was out shopping at the time.

Ground 1 – error in warning the jury that the appellant's evidence may be unreliable

1. [37]

   The appellant gave her evidence in chief on the 25th day of the trial (24 March 2014). The day's evidence concluded after counsel for Bradley Rawlinson had cross-examined her. After the jury were released for the day, counsel for Bernard Spicer made an application for a separate trial on the basis that he had been taken by surprise by evidence of Ms Proud that was damaging to his client's case. The judge ruled on the application the following morning; it was refused: R v Rawlinson; R v Proud; R v Spicer [2014] NSWSC 329. The continuation of the evidence was deferred by a day to allow Mr Spicer's counsel to obtain instructions as he was next to cross-examine.

2. [38]

   It is of some significance for present purposes to note that in the course of submissions on Mr Spicer's application the Crown Prosecutor referred to the admission he had made, according to the appellant's evidence, as "very important evidence in the case against Mr Spicer". He also referred to it as "important admissible evidence coming out during one of the defence cases".

3. [39]

   Counsel for Bernard Spicer cross-examined the appellant on the 27th day of the trial (26 March 2014). Suffice to say that her credibility was seriously questioned. It was in the course of that cross-examination that the appellant said various things which were unfairly prejudicial to Mr Spicer (e.g. a reference to his past criminality; he was not working because he was on parole) which prompted a further application to separate his trial which was granted.

4. [40]

   After the jury departed at the conclusion of the evidence that day there was a short preliminary discussion about the directions the judge would be required to give the jury in his summing up. The Crown Prosecutor listed a number of matters including:

5. [41]

   The learned judge's summing up to the jury commenced on Tuesday 8 April 2014. A juror was absent the following day and the summing up concluded the next afternoon. In the absence of the jury on 9 April the opportunity was taken for there to be some further discussion about directions which included the following:

6. [42]

   It would seem that no-one heard or noticed what the judge said in the italicised portion of that exchange.

7. [43]

   During the course of the continued summing up the following day his Honour gave the following direction that is the subject of this ground of appeal (as extracted from the revised transcript):

8. [44]

   The jury were sent out for lunch a short time later and the following exchange occurred:

9. [45]

   It is apparent from this exchange that the appellant's counsel sent the judge a written suggested direction during the luncheon adjournment. A copy was not marked for identification and the parties have been unable to locate it on the court file or elsewhere.

10. [46]

    It is also clear that the judge's first reaction was to suggest that he should tell the jury to disregard what he had said about the potential unreliability of the appellant's evidence. However, senior counsel for the co-accused Rawlinson (who it would seem had no direct interest in the subject) suggested that he could tell the jury that he had not been expressing a personal view or giving a direction but simply conveying that it was the Crown case that the appellant's evidence was unreliable. As it turned out, that is the substance of what the judge ultimately said.

11. [47]

    The jury returned to court and the judge gave the following further direction (again, extracted from the revised transcript):

12. [48]

    Ms Loukas SC on behalf of the appellant acknowledged that r 4 of the Criminal Appeal Rules applies so that leave is required for her to raise this ground.

13. [49]

    It was submitted that the clarification of the warning later given by the trial judge was not effective in withdrawing it. The substance of the clarification was that the potential unreliability of the appellant's evidence was something for which the Crown contended and it was something about which the judge was not offering his opinion. In written submissions the following matters were listed as having not been withdrawn by the redirection:

14. [50]

    The Crown in this Court accepted that the warning about the potential unreliability of the appellant's evidence was erroneous. However, the fact that no complaint was made about the clarification later given by the trial judge was indicative of it being considered adequate in the atmosphere of the trial.

15. [51]

    The Crown also emphasised that the judge had given the jury directions about the onus and standard of proof. These directions included that the appellant was presumed to be innocent unless and until the Crown persuaded the jury of guilt beyond reasonable doubt. The fact that the appellant had given evidence did not alter the burden of proof. It was for the Crown to persuade the jury that the evidence of the appellant (as well as what she had told police) together with the evidence of the witnesses she called should not be accepted as a version that could possibly be true.

16. [52]

    So, the Crown submitted, the position left to the jury was that it was the Crown alone who was saying that the appellant's evidence was unreliable. Even if the jury disbelieved her evidence entirely, it remained for the Crown to prove her guilt beyond reasonable doubt.

17. [53]

    In written submissions, the Crown submitted that even if error be found, the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) should apply as "no substantial miscarriage of justice has actually occurred". However, when pressed at the hearing of the appeal, senior counsel conceded that there was "arguably" a fundamental defect in the trial that would render application of the proviso inapt.

18. [54]

    In relation to the operation of r 4 of the Criminal Appeal Rules, Hunt J (as his Honour then was), with the agreement of Gleeson CJ and Mahoney JA, said in R v Abusafiah (1991) 24 NSWLR 531 at 536 that the rule is "no mere technicality which may simply be brushed aside". One of its purposes is "to ensure that the trial judge receives the assistance from counsel to which he or she is entitled in the task of giving appropriate directions to the jury". That did not occur in the present case.

19. [55]

    However, there is no suggestion that the acquiescence of trial counsel to the "clarification" direction was explicable by counsel hoping to gain some forensic advantage. More significantly, the ground is concerned with the judge having given the initial warning about the appellant's evidence (to which, taking a broad view, objection was taken), not with the later attempt to clarify it. In any event, if the appellant establishes that she has lost a real chance (or a chance fairly open) of being acquitted the rule should not stand in her way: see, generally, ARS v R [2011] NSWCCA 266 at [59] (Bathurst CJ) and particularly Picken v R [2007] NSWCCA 319 at [20]-[21] (Mason P).

20. [56]

    Section 165 of the Evidence Act 1995 (NSW) provides (relevantly):

21. [57]

    As noted by both trial counsel and the Crown Prosecutor, the section was not engaged because there had been no request by a party for the judge to give the direction. That is not determinative, however, given the judge was empowered by sub-s (5) to give a warning, if appropriate, regardless of any request. The question is whether a warning was appropriate and, if not, whether it was productive of a miscarriage of justice.

22. [58]

    Robinson v The Queen [1991] HCA 38; 180 CLR 531 concerned a trial of a rape charge in which the issue was consent. The trial judge directed that when assessing the evidence of witnesses the jury should consider whether a witness had an interest in the outcome of the case, adding:

23. [59]

    It was noted that the judge had directed the jury in unexceptional terms about the Crown bearing the onus of proof, including in the event that the jury disbelieved the accused and his witnesses. Notwithstanding such directions, the Court held (at 535-6) that there had been a serious misdirection affecting the fairness of the trial. It had the effect that "the evidence of the appellant had to be scrutinized more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused". The direction was described as having the effect that "the appellant was to be treated as a 'suspect witness'". The presumption of innocence had been undermined.

24. [60]

    The direction in the present case did not make any reference to the appellant’s interest in the outcome of the trial. It did, however, require the jury to approach her evidence with “considerable caution” because she was one of the persons accused of the murder with which the trial was concerned.

25. [61]

    In Hargraves v The Queen; Stoten v The Queen [2011] HCA 44; 245 CLR 257 the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) took the opportunity to consider what had been decided in Robinson v The Queen. It was noted that it had been held that the trial judge's directions "had the effect that the evidence of the appellant had to be scrutinised more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused" and that "virtually had the effect that the appellant was to be treated as a 'suspect witness'". However it was noted that the Crown had conceded that there had been a misdirection and the appeal was allowed without argument. In those circumstances, it was considered (at [34]) that there were difficulties in treating the case as having established some new rule or principle.

26. [62]

    It was noted that in both Robinson v The Queen and the present case "the immediate question was … whether on any ground whatsoever there was a miscarriage of justice" (i.e. one of the grounds of appeal in s 668E(1) of the Criminal Code (Qld) as it is in s 6(1) of the Criminal Appeal Act 1912 (NSW)). The decision in the former was described (at [38]) as stemming from the fundamental features of a criminal trial which were described in the following way in RPS v The Queen [2000] HCA 3; 199 CLR 620 at [22]:

27. [63]

    The same point was made in Robinson v The Queen (at [535-6):

28. [64]

    The plurality continued:

29. [65]

    After some general remarks about features of a summing up, they continued:

30. [66]

    Three examples were given (at [43]-[45]) to demonstrate that a jury's attention can be deflected from its fundamental task in various ways. RPS v The Queen involved inappropriate comment by a trial judge on the failure of the accused to give evidence. Palmer v The Queen [1998] HCA 2; 193 CLR 1 involved a person accused of sexual offences being asked whether the person could offer any reason or motive for the complainant to lie. And Robinson v The Queen itself involved an invitation to the jury to test an accused's evidence according to his interest in the outcome of the trial and a suggestion that his evidence should be scrutinised more carefully than that of other witnesses, thus deflecting the jury from applying the requisite onus and standard of proof.

31. [67]

    The plurality judgment concluded on the subject (relevantly):

32. [68]

    Before turning to the terms of the warning and the effect of the "clarification" it is appropriate to consider whether there was any need for a warning at all.

33. [69]

    Prior to the discharge from the trial of Bernard Spicer there was clearly evidence that was damaging to his case that had been given by the appellant in respect of which the Crown Prosecutor had indicated the Crown might or would rely. If he had remained in the trial it could well have been necessary for the judge to say something in fairness to Mr Spicer about the reliability of the appellant's evidence. As to the care with which this issue would have to have been approached, see R v Henning (Court of Criminal Appeal (NSW), Gleeson CJ, Campbell and Mathews JJ, 11 May 1990, unrep) and Webb v The Queen; Hay v The Queen [1994] HCA 30; 181 CLR 41.

34. [70]

    Bernard Spicer had departed the trial before the evidence had concluded. The Crown did not rely upon any of the evidence of the appellant in the case concerning the remaining co-accused, Bradley Rawlinson. Counsel for Mr Rawlinson cross-examined the appellant but only to obtain her agreement that she had never met him before the death of Ms Foreman, let alone spoken to him or seen him in the company of Mr Spicer or his sister or Ms Evans. In these circumstances, the appellant's evidence should have been the subject of assessment by the jury in the ordinary way.

35. [71]

    Given the warning about the possible unreliability of the appellant's evidence was not called for, the question is whether it had the capacity to deflect the jury from its task of deciding whether the Crown had proved the essential elements of the charge against her beyond reasonable doubt.

36. [72]

    I am satisfied that the attempted clarification by the judge did not remove the damaging aspects of the earlier warning from the jury's consideration.

37. [73]

    The appellant's evidence represented the essence of her defence to the incriminating aspects of the Crown case. Her credibility was seriously questioned in cross-examination by the prosecutor. The effect of the warning was that the jury were given a variety of reasons why her evidence might be unreliable over and above what the jury might have considered when assessing her evidence on its merits. These further reasons were extraneous and irrelevant because this was not a "case in which the Crown relies upon the evidence of a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings before the Court". Rather than relying upon it, the Crown vigorously disputed the appellant’s evidence.

38. [74]

    The proviso in s 6(1) of the Criminal Appeal Act should not be applied for the reasons given by Basten JA at [2]. Accordingly, ground 1 should be upheld.

Ground 2 – error in not directing as to the element of "participation" in a joint criminal enterprise

1. [75]

   The success of the appellant under the previous ground would result in an order for retrial and the same would be the result if she succeeded under this ground. I am not persuaded that this ground has merit and, in the circumstances, will deal with it only briefly.

2. [76]

   In what follows I propose to confine my reference to a joint criminal enterprise but it should be taken that I am also referring to an extended joint criminal enterprise which was the alternative way the Crown case was left.

3. [77]

   The judge directed the jury on the concepts of joint criminal enterprise in textbook terms in conformity with the authorities and modelled on the suggested directions in the Criminal Trials Bench Book published by the Judicial Commission of New South Wales. The directions were settled with the input of counsel. The appellant's counsel raised no objection nor sought any redirection.

4. [78]

   In this Court, Ms Loukas sought to draw a distinction between a joint criminal enterprise where the accused was present at the scene of the crime and one where the accused, as in this case, was not. She referred to Huynh v The Queen; Duong v The Queen; Sem v The Queen [2013] HCA 6; 87 ALJR 434 where it was held that the participation by a party to a joint criminal enterprise may be established by no more than their presence at the scene of the crime. The submission was that where a party to such an enterprise was not present, then the Crown was required to prove not only that the person was a party but also that the person performed some act in furtherance of the enterprise.

5. [79]

   The merits of the point are dubious but it is unnecessary to dwell upon them. The simple answer is that in this case what was capable of proving that the appellant was a party to the enterprise also proved that she participated in it – for example, her instruction to Mr Spicer: "all you do is, you go in there, you mess her up a bit … just bash her a bit … put her in hospital to the point her face can't be fixed".

6. [80]

   Before departing, I observe that the appellant's role would more accurately be described as being an accessory before the fact than a participant in a joint criminal enterprise. However, for practical purposes these are different legal descriptions of criminal complicity that would not make any difference to the necessary matters the Crown was required to prove in order to establish the appellant's guilt beyond reasonable doubt.

7. [81]

   I also take the opportunity to observe that the avoidance of technical legal arguments on appeal that have little or no regard to the factual issues a jury was called upon to decide would be fostered if directions in a summing up were posed, wherever possible, in terms of factual questions for the jury to decide. It is an understatement to say that there would also be the benefit of jurors being more readily able to understand the directions.

8. [82]

   The language that is often used in directing a jury on complex legal issues such as whether an accused was criminally complicit in an offence that was the product of a joint criminal enterprise, adapted from technical concepts discussed in appellate cases, might be well understood by experienced criminal lawyers and judges but it does not necessarily lend itself to ease of comprehension by lay jurors. The challenge for judges is to provide the jury with only so much of the law as is necessary in order to guide the jury to a decision on the real issue(s) in the case: Alford v Magee [1952] HCA 3; 85 CLR 437 at 466. In the present case, the real issues for determination in relation to the appellant were:

9. [83]

   In very recent times, New South Wales judges have had the benefit of seminars presented by New Zealand judges on a more enlightened approach taken in that jurisdiction to the distillation of the real issues falling for jury determination. It is a matter that requires serious reconsideration of the approach taken here.

10. [84]

    Leave pursuant to r 4 of the Criminal Appeal Rules should be refused in respect of this ground.

Ground 3 – the verdict is unreasonable or not supported by the evidence

1. [85]

   Ms Proud requires leave to raise this ground as it does not involve a question of law alone (s 5(1) Criminal Appeal Act). For convenience, however, I will continue to refer to her as "the appellant".

2. [86]

   The principles concerning the determination of a ground of appeal that a verdict of guilty is unreasonable, or cannot be supported, having regard to the evidence, are well known and there is no need to recite them again in this judgment. In short, the question is whether, upon independently assessing the evidence, this Court is of the view that it was open to the jury (in the sense explained by the High Court) to conclude beyond reasonable that the appellant was guilty: M v R ]1994] HCA 63; 181 CLR 487 at 493; Jones v R [1997] HCA 56; 191 CLR 439; MFA v R [2002] HCA 53; 213 CLR 606; Libke v The Queen [2007] HCA 30; 230 CLR 559 and SKA v R [2011] HCA 13; 243 CLR 400.

3. [87]

   There is no need to survey the evidence in the trial in any further detail than I have already. Whatever might be made of the other incriminating evidence the prosecution relied upon, the most telling evidence was the covertly recorded conversation between the appellant and Ms Gallagher on 15 December 2011: see above at [19]. If the jury accepted that the appellant did in fact instruct Mr Spicer as to what he should do – that is, intentionally inflict grievous bodily harm upon the deceased, then, given that is what in fact occurred (at least), the jury were required to return a verdict of guilty of murder. Was it open to the jury to accept that this is what the appellant was conveying to Ms Gallagher?

4. [88]

   I have earlier set out the appellant's attempt to explain what she said to Ms Gallagher as "a manner of speech". It is an explanation that is distinctly lacking in credibility. Moreover, the appellant's credibility was seriously damaged by the overwhelming body of uncontested evidence that she had devoted considerable effort to the concoction of false accounts to give to police during the course of their investigation. In addition, there was the appellant's police interview of 21 December 2011 in which she maintained a false version, only to be forced to concede the falsity of some of its elements after she was confronted with some of her recorded conversations.

5. [89]

   In my view, there was nothing unreasonable about the appellant's conviction. It was well open to the jury to be satisfied beyond reasonable doubt of her encouragement and facilitation of the plan to have the deceased hospitalised and seriously disfigured.

6. [90]

   This ground must be rejected.

Ground 4 – error in directions on extended joint criminal enterprise and the requisite mental state

1. [91]

   Senior counsel for the appellant acknowledged that this ground was put forward to protect her client’s position should the High Court reconsider established authority that is binding on this Court such as McAuliffe v The Queen [1995] HCA 37; 183 CLR 108 in the light of the recent joint decision of the Supreme Court of the United Kingdom and the Privy Council in R v Jogee; Ruddock v The Queen [2016] UKSC 8; [2016] UKPC 7.

2. [92]

   As accepted by the appellant, this ground must be rejected. (Proud v R [2016] NSWCCA 41).

Orders

1. [93]

   I propose the following orders: