TANYA HINRICHSEN v THE KING [2023] SASCA 111

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE DAVID) SCCRM-20-65 Appellant: TANYA HINRICHSEN Counsel: MR S HENCHLIFFE KC WITH MR B ARMSTRONG - Solicitor: WOODS & CO LAWYERS Respondent: THE KING Counsel: MR M HINTON KC WITH MR P HILL - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 03/03/2022 File No/s: SCCRM-21-314 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. HINRICHSEN v THE KING [2023] SASCA 111 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Doyle) 12 October 2023 CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE OR JOINT CRIMINAL ENTERPRISE - DIRECTIONS TO JURY CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE OR JOINT CRIMINAL ENTERPRISE - SCOPE OF AGREEMENT CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - ACCESSORY BEFORE THE FACT Application for permission to appeal against conviction and appeal against conviction. The appellant, together with two co-accused (Skinner and Thrupp), was jointly charged with the murder of the appellant’s husband. The prosecution case against the appellant was that she was guilty of murder on two bases: as a party to a joint enterprise with Skinner or, in the alternative, as an accessory before the fact. Following a trial before a judge and jury, the appellant was found guilty of murder. Skinner was also found guilty of murder. Thrupp was found not guilty of murder, but guilty of manslaughter. The appellant sought permission to appeal on the following grounds: 1. the learned trial judge erred in law in not correctly and adequately directing the jury about what had to be proved for the appellant to be guilty of murder as an accessory before the fact; -- 1 of 121 -- 2. the learned trial judge erred, and a miscarriage of justice was occasioned, by the failure to adequately direct the jury how to decide whether Skinner murdered the deceased for the purposes of whether the appellant was guilty of murder as an accessory before the fact; 2A. the learned trial judge erred in leaving to the jury the pathway of convicting the appellant of murder on the basis that she had been a party to a joint criminal enterprise with Skinner to kill or cause grievous bodily harm to the deceased; 2B. the learned trial judge erred in law in directing the jury to the effect that if one or more of Skinner and Thrupp committed the acts which caused the deceased’s death, the appellant would be guilty of murder on the basis of the principles of joint enterprise if she had, at that time, been a party to an understanding or arrangement with Skinner alone to kill or cause grievous bodily harm; 2C. the learned trial judge erred by failing to direct the jury that because the prosecution case was that there were separate joint criminal enterprises between Skinner and Thrupp, and Skinner and the appellant, it could only find the appellant guilty of murder according to joint enterprise principles if it was satisfied beyond reasonable doubt that physical acts done by Skinner caused the deceased’s death; 3. a miscarriage of justice was occasioned, or alternatively the conviction is unreasonable, because it was left open to the jury to convict the appellant of murder on the basis she was a party to a joint criminal enterprise with Skinner to murder the deceased; and 4. a miscarriage of justice was occasioned by the learned trial judge’s failure to adequately direct the jury in relation to the prosecution counsel’s submissions to the jury about what the appellant told police about her house keys. Permission to appeal was not required with respect to ground 1, was previously granted with respect to grounds 2 and 4, and was referred for hearing in conjunction with the appeal with respect to ground 3. Permission to add grounds 2A, 2B and 2C was granted on the hearing of the appeal. Held (per Lovell and Doyle JJA), granting permission to appeal on grounds 2A, 2B, 2C and 3, and allowing the appeal on grounds 1.7, 2 and 4: 1. the trial judge’s directions correctly identified the fault element for the appellant’s potential liability for murder as an accessory before the fact. In particular, that fault element required that the appellant intended to encourage Skinner to commit the offence of murder, but did not require that she knew that Skinner would, or might possibly, commit that offence (grounds 1.1 and 1.2); 2. the trial judge properly related her directions on accessory liability to the facts of the case (grounds 1.3 and 1.5); 3. the trial judge was not required to direct the jury that conduct by which the appellant encouraged Skinner to murder the deceased was conduct that was objectively capable of encouraging Skinner to do so (ground 1.4); 4. the trial judge erred, or occasioned a miscarriage of justice, in failing to direct the jury that the prosecution case of accessorial liability required that it exclude as a reasonable possibility that any encouragement by the appellant had been withdrawn or nullified, or become spent, by the time the deceased was killed (ground 1.7); 5. in particular, there was evidence at trial that was capable of supporting the possibility that any encouragement by the appellant had been withdrawn or nullified, or become spent, during the approximately 12 hour period between the key text message relied upon as providing the relevant encouragement and the killing of the deceased. Defence counsel did not ever disavow any case to the effect that it was possible that any earlier encouragement was withdrawn or became spent, and indeed concentrated his closing address on the evidence and events which were capable of supporting that possibility; -- 2 of 121 -- 6. the trial judge erred, or occasioned a miscarriage of justice, in failing to direct the jury that, when considering whether Skinner murdered the deceased – for the purposes of the first element of accessorial liability on the part of the appellant – it was necessary to do so by reference to only the evidence admissible against the appellant (ground 2); 7. in particular, whilst her Honour was generally careful to identify the evidence which was not admissible against the appellant, and the need to address the cases against each defendant separately, the first element of the case in accessorial liability against the appellant (namely, that Skinner murdered the deceased) raised a particular risk of the jury losing sight of the proper approach. Her Honour’s direction to the effect that if they found Skinner not guilty of murder, they could not find the appellant guilty of murder as an accessory before the fact, left a risk that the jury may have been lulled into thinking it was sufficient for them to treat their verdict of guilty against Skinner as establishing the first element of the appellant’s accessorial liability; 8. no error has been established in the trial judge’s directions in relation to the appellant’s potential liability for participation in a joint enterprise to murder the deceased (grounds 2A, 2B and 2C). It was not necessary for the trial judge to instruct the jury that they needed to exclude the possibility of Thrupp having committed one or more of the acts necessary to constitute the murder of the deceased. It was sufficient that her Honour directed the jury in clear terms that they had to be satisfied beyond reasonable doubt that the deceased was killed in accordance with the agreement between the appellant and Skinner; 9. no error has been established in the trial judge leaving it open to the jury to convict the appellant of murder on the basis she was party to a joint criminal enterprise with Skinner to murder the deceased (ground 3). Liability on that basis did not require the appellant’s physical presence whilst the acts constituting the murder were committed, and it was otherwise open on the evidence; 10. the prosecutor having invited the jury to engage in reasoning that relied upon a consciousness of guilt, the trial judge erred, or occasioned a miscarriage of justice, in failing to address the risk that the jury might engage in such reasoning without proper assistance (ground 4). Held (per Livesey P, dissenting), dismissing the appeal on grounds 1, 2 and 4; otherwise agreeing with Lovell and Doyle JJA as to granting permission to appeal but dismissing appeal grounds 2A, 2B, 2C and 3: 11. there is a clear correlation between the conduct of counsel and the way in which the trial judge determines the real issues and directs the jury on those issues; 12. defences aside, where parties are represented by experienced and competent senior counsel it is likely to be an unusual case where it is necessary for a trial judge to sum up in a manner inconsistent with the way in which counsel has determined to run the case. There was a rational forensic justification for the approach of senior counsel; 13. real care must be exercised when considering whether there is a miscarriage of justice associated with the failure by the trial judge to address entirely new points which did not feature at the trial; 14. the question of withdrawn or “spent” encouragement by the appellant was never put into issue and the evidence did not require that it be addressed by the trial judge. There was no evidence to which the appellant could point to suggest that she had said or done whatever was reasonably practicable to countermand the effect of her earlier conduct (ground 1); 15. the trial judge gave clear directions which required that the jury consider the case against each accused quite separately and by reference to the evidence admissible against the particular accused. The aide-memoire did not detract from those directions. In so far as this ground was argued by reference to statements made by the appellant’s co-accused which were not made in her presence, the jury was explicitly told that these were only admissible against their makers and on a number of occasions that they were not admissible against the appellant (ground 2); -- 3 of 121 -- 16. the prosecutor’s address was likely to have been regarded as a straight-forward attack on the credibility of the appellant’s account to police about her keys. The address did not suggest that the jury should, on account of what she told police, find that the appellant had lied and that this lie should be used in the determination of the appellant’s guilt (ground 4). Crimes Act 1900 (NSW) ss 52, 351; Criminal Procedure Act 1921 (SA) s 158, referred to. Alford v Magee (1952) 85 CLR 437; Attorney-General’s Reference (No 1 of 1975) [1975] QB 773; Attorney General v Able [1984] 1 QB 795; Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; Blundell v The Queen (2019) 279 A Crim R 302; Braysich v The Queen (2011) 243 CLR 434; Capital Traction Co v Hof 174 US 1 ; Cesan v The Queen (2008) 236 CLR 358; Clayton v The Queen (2006) 81 ALJR 439; Commonwealth Bank of Australia Kojic (2016) 249 FCR 421; Dickson v R (2017) 94 NSWLR 476; Edwards v The Queen (1993) 178 CLR 193; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; Fingleton v The Queen (2005) 227 CLR 166; Gilbert v The Queen (2000) 201 CLR 414; Giorgianni v The Queen (1985) 156 CLR 473; Hasler v Singtel Optus Pty Ltd (2014) 87 NSWLR 609; Howell v Doyle [1952] VLR 128; Huynh v The Queen (2013) 87 ALJR 434; IL v The Queen (2017) 262 CLR 268; Kalbasi v Western Australia (2018) 264 CLR 62; King v The Queen (2003) 215 CLR 150; Lenzi v Miller [1965] SASR 1; Likiardopoulos v R (2010) 30 VR 654; Macklin’s Case (1838) 2 Lewin 225 168 ER 1136; McAuliffe v The Queen (1995) 183 CLR 108; Miller v The Queen (2016) 259 CLR 380; Mitchell v The King (2023) 97 ALJR 172; O’Dea v Western Australia (2022) 96 ALJR 710; Orreal v The Queen (2021) 96 ALJR 78; Osland v The Queen (1998) 197 CLR 316; Pemble v The Queen (1971) 124 CLR 107; Perera-Cathcart v The Queen (2017) 260 CLR 595; RJE v Secretary to the Department of Justice (2008) 21 VR 526; R v Anderson [1966] 2 QB 110; R v B, FG (2012) 114 SASR 170; R v Collinson (1831) 4 Car & P 565; R v Golding & Edwards (2008) 100 SASR 216; R v Jensen [1980] VR 194; R v Johns [1978] 1 NSWLR 282; R v Lam (2008) 185 A Crim R 453; R v Lowery and King [No 2] [1972] VR 560; R v Lovesey [1970] 1 QB 352; R v Pearce (1929) 21 Cr App R 79; R v Ready [1942] VLR 85; R v Rich (1997) 53 A Crim R 483; R v Sheppard [2010] QCA 342; R v Sully (2012) 112 SASR 157; R v Taufahema (2007) 228 CLR 232; R v XY (2013) 84 NSWLR 363; Weiss v The Queen (2005) 224 CLR 300; White v Ridley (1978) 140 CLR 342; Zoneff v The Queen (2000) 200 CLR 234, considered. -- 4 of 121 -- HINRICHSEN v THE KING [2023] SASCA 111 Court of Appeal – Criminal: Livesey P, Lovell and Doyle JJA LIVESEY P: Introduction 1 The appellant, Tanya Hinrichsen, was charged jointly with Gavin Skinner and Robert Thrupp of the murder of Stephen Hinrichsen on 15 December 2018 at Morphett Vale. At the time of his death, the deceased and the appellant were married. 2 The prosecution maintained that in the early hours of 15 December 2018 Skinner and Thrupp walked from Astrid Street, Christie Downs, to the deceased’s home at Nathan Court, Morphett Vale, arriving between 5.00 am and 6.00 am. The prosecution case was that they then killed the deceased. 3 All three were tried before a jury between 21 June and 28 July 2021. Skinner was found guilty of murder. Thrupp was found not guilty of murder but guilty of manslaughter. 4 The case against the appellant was based on joint criminal enterprise or, alternatively, liability as an accessory who intentionally counselled or procured Skinner to murder her husband. The appellant was found guilty of murder. Whether the jury found the appellant liable for murder based on joint criminal enterprise or as an accessory cannot be known. 5 The appellant appeals against her conviction for murder. These reasons address only three of the appeal grounds, being appeal grounds 1, 2 and 4, as follows: 1. The learned trial Judge erred at law by not correctly and adequately directing the jury about what had to be proved for the appellant to be guilty of murder as an accessory before the fact. Particulars 1.1 Failed to direct the jury that at the time of the conduct by which it was alleged the appellant counselled or procured Skinner to murder the deceased, it had to be proved that she knew that Skinner was going to intentionally inflict grievous bodily harm to, or kill, the deceased. 1.2 Failed to direct the jury that the appellant would not be guilty of murder if at the time of the conduct by which she was alleged to have counselled or procured Skinner to murder the deceased, she only knew that Skinner might possibly intentionally inflict grievous bodily harm to, or kill, the deceased. 1.3 Failed to relate her directions at SU44 in relation to the second element of murder as an accessory before the fact to the facts of the case. -- 5 of 121 -- [2023] SASCA 111 Livesey P 2 1.4 Failed to direct the jury that it had to be proved that the conduct by which the appellant counselled or procured Skinner to murder the deceased was conduct that was capable of counselling or procuring Skinner to do that. 1.5 Failed to specifically identify the appellant’s conduct which the jury was to consider when it decided if the appellant had intentionally counselled or procured Skinner to murder the deceased (SU45). 1.6 Wrongly directed the jury that conduct by the appellant, which was not capable of being conduct by which she intentionally counselled or procured Skinner to murder the deceased, was relevant to whether she had done so, namely the assault of the deceased on 16 November 2018 (SU57) and the assault of the deceased and subsequent conversation with Skinner on 26/11/18 (SU45, SU67/68). 1.7 Failed to direct the jury that it had to be proved that at the time the deceased was murdered the appellant had not withdrawn her encouragement to Skinner to murder the deceased and that her conduct was still capable of encouraging Skinner to do that (that is, its effect was not spent). 2. The learned trial Judge erred and a miscarriage of justice was occasioned by the failure to adequately direct the jury how to decide whether Skinner murdered the deceased for the purposes of whether the appellant was guilty of murder as an accessory before the fact. Particulars 2.1 The jury should have been directed that they must freshly consider whether it had been proved that Skinner murdered the deceased and must ignore any conclusion they reached about Skinner’s guilt of murder on the evidence admissible against him. 2.2 The jury should have been directed that they must decide if it had been proven that Skinner murdered the deceased using only the evidence that was admissible against the appellant. 2.3 The learned trial Judge’s direction that if the jury found Skinner not guilty of murder, they could not find the appellant guilty of murder as an accessory before the fact, was misleading. It wrongly suggested that the jury’s verdict with respect to Skinner was relevant to whether it had been proven he murdered the deceased for the purposes of the appellant’s guilt. … 4. A miscarriage of justice was occasioned by the learned trial Judge’s failure to adequately direct the jury in relation to the prosecution counsel’s submissions to the jury about what the appellant told police about her house keys. Particulars 4.1 The appellant told police she noticed on the morning after the murder occurred that her keys were placed differently on her key ring to how they usually were. 4.2 At the end of her closing address on 19 July 2021, prosecution counsel invited the jury to accept that this claim by the appellant was, “... a late desperate -- 6 of 121 -- [2023] SASCA 111 Livesey P 3 conniving attempt to distance herself from providing those house keys to Skinner and, therefore, from the truth of her involvement in this crime.” This [sic] submissions clearly invited the jury to use the appellant’s lie as evidence of her consciousness of her own guilt and as an implied admission of guilt. 4.3 The issue with respect to the house keys was an indispensable intermediate fact in proof of the appellant’s guilt. 4.4 The learned trial Judge summed up to the jury seven days later, on 26 July 2021. Other than a very brief general direction on lies (SU154) nothing was said in the summing up about the prosecutor’s closing submission to the jury. 6 The first two appeal grounds address aspects of the directions given by the trial judge on the alternative case against the appellant, based on accessorial liability. The fourth appeal ground addresses certain comments made by the prosecutor at the conclusion to her final address which it is said invited ‘consciousness of guilt’ reasoning, which was both impermissible and inadequately addressed by the trial judge in her summing up. 7 The parties were agreed that the first appeal ground raised a question of law for which permission to appeal was not required.1 8 I would dismiss appeal grounds 1, 2 and 4. The directions on accessorial liability were not defective and assisted the jury in the determination of the appellant’s liability for murder as an accessory.2 The conclusion of prosecution closing address did not invoke consciousness of guilt reasoning. These reasons are set out as follows: The case against the appellant Hinrichsen ................................................................................. [9] The prosecution case against Skinner and Thrupp................................................................... [12] An overview of the prosecution evidence ................................................................................ [15] Two relevant features of a criminal trial .................................................................................. [53] The trial judge must give directions on the ‘real’ issues’ ............................................. [54] A party is ordinarily bound by the conduct of counsel .................................................. [64] The conduct of this trial: opening and defence closing, summing up...................................... [90] The prosecution opening................................................................................................ [91] The defence ‘opening’ and closing ................................................................................ [94] The directions on accessorial liability in this case ...................................................... [107] Appeal ground 1: accessory before the fact ........................................................................... [113] The contentions of the appellant .................................................................................. [113] Addressing the first five criticisms – accessorial liability ........................................... [120] 1 Criminal Procedure Act 1921 (SA), s 157; permission to appeal was earlier granted for appeal grounds 2 and 4. The question of permission to appeal grounds 3 and 5 was referred for argument as on appeal. 2 The issue of withdrawal did not feature at the trial and the evidence did not require that it be left to the jury. -- 7 of 121 -- [2023] SASCA 111 Livesey P 4 The first criticism ......................................................................................................... [135] The second criticism .................................................................................................... [147] The third criticism........................................................................................................ [158] The fourth criticism...................................................................................................... [162] The fifth criticism ......................................................................................................... [177] The sixth criticism: withdrawal or whether encouragement was “spent” .................. [181] Appeal ground 2: out of court statements made by the appellant’s co-accused .................... [199] Appeal ground 4: consciousness of guilt ............................................................................... [221] Conclusion ............................................................................................................................. [233] The case against the appellant Hinrichsen 9 The case of joint criminal enterprise against the appellant was that she was party to an agreement or arrangement with Skinner to kill or cause grievous bodily harm to the deceased and that she intentionally participated in that agreement by giving Skinner her house keys. In this way, Skinner was able to enter the deceased’s home where he and Thrupp caused the deceased’s death. 10 The case that the appellant was guilty of murder as an accessory before the fact was that she intentionally counselled or procured Skinner to murder the deceased before he was killed by Skinner and Thrupp. 11 The trial judge left an alternative verdict of manslaughter against the appellant. That case was based on the contention that the appellant was guilty of manslaughter if she had entered into an agreement to assault the deceased, that they participated in that agreement and that in the course of carrying out the agreement another party committed voluntary and deliberate acts which were dangerous and unlawful and caused the death of the deceased, and the appellant foresaw the possibility that another party to the agreement might inflict a dangerous act with an intention to commit harm. The prosecution case against Skinner and Thrupp 12 The case of joint criminal enterprise against Skinner and Thrupp was that they were parties to an agreement or arrangement with each other to kill or cause grievous bodily harm to the deceased. The prosecution contended that they participated in that agreement by inflicting the fatal wounds, or being present when those wounds were inflicted, as part of their agreement. 13 The extended joint criminal enterprise case against Skinner and Thrupp was that they were parties to an agreement or arrangement with each other to assault the deceased, that they each participated in that agreement by being present when the fatal wounds were inflicted and, in the course of carrying out their agreement, one of the accused inflicted the fatal wounds with an intention to kill or cause grievous bodily harm whilst the other foresaw the possibility that the first accused -- 8 of 121 -- [2023] SASCA 111 Livesey P 5 might inflict violence on the deceased with an intention to kill or cause grievous bodily harm. 14 The trial judge left an alternative verdict of manslaughter against Skinner and Thrupp, based on the contention that, if they had entered into an agreement to assault the deceased and they participated in that agreement, that in the course of carrying out the agreement another committed voluntarily and deliberate acts which were dangerous and unlawful and caused the death of the deceased and the accused foresaw the possibility that another party might inflict a dangerous act with the intention to commit harm. As has been noticed, Thrupp was convicted of manslaughter. An overview of the prosecution evidence 15 It is only necessary to mention aspects of the evidence led at the trial which are relevant to this appeal. Some of this material was not admissible against the appellant. As will be seen, in this complex case the trial judge was careful to direct the jury as to the evidence which was and was not admissible against the appellant. 16 The appellant and the deceased had been married for around 14 years but by the time of his death the deceased was incapacitated, and for some time the appellant had been caring for him. Their three children had been taken into care by Families SA. The deceased, Skinner and the appellant had known each other for some years. Around two months before the deceased’s death, the appellant and Skinner had commenced a sexual relationship. The appellant wished to leave the deceased and live with Skinner. The appellant told police that Skinner was described in her mobile phone contacts as ‘Future husband’. 17 The deceased, however, had been trying to persuade the appellant to remain in their marriage. 18 Extensive texts and multimedia messages extracted from the mobile phones used by the appellant, Skinner and the deceased featured prominently in the prosecution case.3 These and other messages revealed that the appellant knew about two earlier assaults of the deceased undertaken by Skinner during November 2018, in the month before his death. 19 The first was an assault of the deceased in his home on 16 November 2018. On 15 November 2018 the appellant and Skinner had spent the night together, with the appellant sending a message to Skinner “I’m here, waiting for my husband” to which Skinner replied, “Be there shortly, baby”. On the morning of 16 November, the appellant messaged Skinner, “He’s alive but has a bruised cheek”. Skinner replied, “Should be the right hand side” and, after the appellant reported that the deceased told her he had been bashed outside, Skinner responded, “WTF LOL it 3 Exhibits P20, P21 and P28. -- 9 of 121 -- [2023] SASCA 111 Livesey P 6 was in your bed, the lying fuck”, together with “I might have to do a better job next time”. 20 There was evidence that the deceased had a bruised face and a swollen and painful left elbow, and attended at the Noarlunga Hospital on 17 November 2018. There was also evidence that Skinner had presented to the same hospital the day before with a fractured scaphoid bone which was later bandaged. 21 The appellant later told police that before Skinner and Thrupp bashed the deceased on 16 November, the deceased and Skinner had a heated conversation on her phone. She drove Skinner and Thrupp to the deceased’s home. She gave them the front door key. Skinner and Thrupp disguised themselves. She parked down the end of the street, not knowing what was going to happen, not wanting to know what happened. She guessed they were going to put some fear into the deceased for not leaving her alone. 22 In addition, there was evidence before the jury suggesting that Skinner had assaulted the deceased in his home a second time on 26 November 2018. On this occasion the appellant was present. 23 Before that second assault, in messaging at around 11 pm on 24 November 2018, the appellant complained about being kicked out of her bed and sleeping on the couch, to which Skinner replied: Skinner: If he wants to carry on I will knock him out again. Appellant: How about come round tomorrow. I want to piss him big time. Is that okay? Skinner: Hmmmm ... Appellant: I’m [sic] just had enough being here. He really needs to go. Skinner: I can do that tonight not a problem. Appellant: But I’ve got nowhere to go when you do this. Skinner: Hmmmm ... Appellant I should be getting $150 for my wedding set so maybe do it tomorrow night. Skinner: A knife to the throat should do the job. Appellant: Don’t wanna know what happens. Is that okay? Skinner: I’m so tempted to do it tonight especially the mood I’m in atm. Appellant: Well…But how am I going to get to your place. Please calm down just for me. 24 In later messaging just before midnight, the appellant asked Skinner to tell her when he was on the way so that she could go out, and then: -- 10 of 121 -- [2023] SASCA 111 Livesey P 7 Appellant: Well… it’s up to you now. I’m sorry but this needs to be done. I don’t care if I drive the car around the corner why u do it. Skinner: After … I need to get rid of some clothes. 25 In text messaging between Skinner and the appellant on 26 November 2018 at 5.29 pm, just before the second assault, the following messages were exchanged: Appellant: STEVE [the deceased] has to go. Skinner: What’s wrong now…?? Appellant: All I can say is he needs to go. 26 An audio file from Skinner’s mobile phone recorded what was alleged to be the assault of the deceased by Skinner on 26 November 2018 at around 6.11 pm. The appellant could be heard to tell Skinner repeatedly to leave. 27 After the appellant and Skinner left the house, Skinner said, amongst other things, “Next move he’s dead, I am serious”. Hinrichsen said in response that she had been waiting for Skinner to grab a knife from the kitchen, to which Skinner said, “Na that’s the next move” before remarking “I’ll stab him in the fucking neck, I don’t give a fuck”.4 Later that evening, at 11.42 pm they exchanged the following messages: Skinner: I should have killed that fucking cunt. Appellant: I know babe. 28 In a discussion between the deceased and police on the evening of 26 November 2018, the deceased told police that whilst in his wheelchair he had just been assaulted by Skinner and that the appellant had got Skinner out of the house so that, in effect, he suffered only minor wounds. 29 On 26 November 2018 police spoke with Skinner and the appellant about the assault of the deceased earlier that evening at Nathan Court.5 30 The prosecution led evidence that after a call initiated by an insurance company, the appellant had taken out an insurance policy or plan providing cover for accidental death or injury of $50,000 and funeral expenses of $4,000. The appellant was a policy holder and beneficiary of the policy relating to her husband, the deceased. In telephone calls made on 4 and 12 December 2018 the appellant asked the insurance company about coverage for cancer and about life insurance and funeral benefits. The appellant was told that a different policy was required for cancer or life insurance coverage. The appellant told the insurer that her 4 Exhibit P22. 5 Exhibits P23 and P24. -- 11 of 121 -- [2023] SASCA 111 Livesey P 8 husband had broken his femur twice was recently diagnosed with cancer and she wanted to know whether he was covered. She was told that he should be covered. 31 In her directions to the jury as to the deceased’s motive, the trial judge warned that the evidence was unclear as to whether the appellant would receive any benefit under the insurance policy if the deceased was murdered. 32 On 9 December 2018, the deceased made a missing person’s report concerning the appellant. When police found Skinner and the appellant near the Onkaparinga River, they were described as being annoyed about what they regarded as interference by the deceased. 33 The prosecution led evidence from the occupants of Astrid Street, Ms Varney, the aunt of Thrupp, and Mr Stretton, her stepson. Ms Varney spoke about conversations between Skinner and Thrupp indicating antipathy towards the deceased. As the trial judge had done repeatedly with a number of items of evidence, she made the use of this evidence clear to the jury. Her Honour explained that this evidence was not admissible against the appellant. 34 The evidence from Mr Stretton included that in December 2018 he had seen Skinner together with “Tracey”, the appellant, almost daily in the lounge room at Astrid Street, talking and hugging romantically. He heard the appellant tell Skinner and occasionally Thrupp how much she hated her ex-partner, and that he was hitting her or being rude and aggressive to her. This occurred on 10 occasions over a few months. He heard Skinner say “We should go round there” and “sort him out”. 35 There was a large body of text messages between Skinner and the appellant, and the appellant and the deceased, between 14 and 15 December 2018, when the deceased was murdered. 36 During the evening of 14 December 2018, the appellant complained to the deceased that he had to stop taking over her life and their marriage was finished. This message was in response to the deceased refusing permission for Skinner to stay over. 37 Later that evening, the appellant messaged Skinner at 6.06 pm, telling him that she had found out that the reason why the deceased would not let Skinner stay over was that the house was in his name. She told Skinner she loved him and that she needed to move out as soon as possible. Soon after, at 6.09 pm on 14 December 2018: Skinner: Soooooo ready to go on a hunting spree … . Appellant: If it’s to do him Then I’ll give you my permission. Skinner: I absolutely don’t give a fuck atm … Dead set … . -- 12 of 121 -- [2023] SASCA 111 Livesey P 9 38 After this “hunting spree” exchange, in subsequent messaging over the next few hours, the appellant again told Skinner that she loved him, and she was scared of losing him. 39 At around 8.00 pm that evening, Skinner told the appellant that he had a better solution and the appellant responded that she was going to the Christies Beach Police to figure out what to do. 40 There was evidence that late in the evening of 14 December 2018, at around 11.00 pm, the appellant went to Astrid Street and met with Skinner and, at around 12.05 am on 15 December 2018, together they went to the Christies Beach Police Station. There they had a discussion with police in which the appellant sought advice about how she might leave the deceased. That conversation was covertly recorded by Skinner on his mobile phone. 41 At around 12.23 am on the morning of 15 December 2018, Skinner messaged Thrupp asking, in effect, whether he wanted to have some fun. Soon after, Skinner messaged the appellant, telling her to “Come in, need to discuss. Might have a place”. 42 There was evidence from Thrupp’s daughter that she had offered to let her father, Skinner and the appellant move into her flat at around this time. She also gave evidence that she travelled with Thrupp, Skinner and the appellant in the appellant’s car to Nathan Court that evening to collect some of the appellant’s clothes and belongings. Thrupp’s daughter said she heard Skinner going off at the deceased, and she asked the appellant whether she wanted her to discourage Skinner going off at the deceased, to which the appellant agreed. She then told Skinner to leave the appellant’s husband alone, after which Skinner drove them back in the appellant’s car to Astrid Street. 43 Thrupp’s daughter said that after they returned to Astrid Street, the appellant lay down on the couch in the lounge room and went to sleep. She saw that the appellant was still asleep at a later time when she could not see Skinner and Thrupp at Astrid Street. 44 There was evidence at the trial, which included CCTV footage and mobile phone data, demonstrating that Skinner and Thrupp walked from Astrid Street to Nathan Court between 5.00 am and 6.00 am and then walked back again shortly after 7.00 am. On the prosecution case, this was when they killed the deceased. 45 Thrupp’s daughter gave evidence about a conversation with Skinner after he returned to Astrid Street. She said that Skinner told her that he had heard sirens and that the deceased had committed suicide. She said that Skinner referred to “blood” and started to yell, repeating that they did not go back there. She also spoke about a conversation with her father in which she asked whether the deceased had committed suicide. After she told Thrupp that this is what Skinner had told her, Thrupp said, “Every dog gets his day”. -- 13 of 121 -- [2023] SASCA 111 Livesey P 10 46 Later in the morning of 15 December 2018, the appellant drove from Astrid Street to her former home at Nathan Court. She said that she discovered the deceased’s body. She made a triple zero call to police at around 9.00 am. 47 Messaging between Skinner and the deceased from 9.09 am commenced with: Appellant: Steve’s dead. Skinner: Oh my fuckn god baby … so wish I was there to comfort you … What the fuck happened … ??? 48 When police attended, they found no evidence of any forced entry into Nathan Court. This was said to support the prosecution contention that the appellant had given Skinner her keys to Nathan Court. For the defence, it was contended that the evidence did not exclude that Skinner or Thrupp or both had simply taken the keys from the appellant’s bag whilst she slept. Alternatively, the defence contended that Skinner might have retained the house keys after he used the appellant’s car keys when he drove her car back from Astrid Street. The house and car keys were on the same key ring. 49 Expert pathology evidence demonstrated that the deceased had sustained at least 65 separate applications of force. Death was caused by multiple stab wounds and incised wounds, leading to extensive loss of blood. 50 The prosecution evidence linked Skinner and Thrupp to the crime scene. Statements taken by police from the appellant after 9.00 am on 15 December 2018 were to the effect that she denied being party to any agreement to kill or cause grievous bodily harm to the deceased, and she denied having given her house keys to Skinner. 51 Skinner was interviewed by police and his record of interview was before the jury. Though Thrupp gave an informal statement and an addendum statement to police, he declined to participate in any formal interview. Both denied any involvement in the deceased’s death. 52 Neither the appellant, Skinner nor Thrupp gave evidence at the trial. Two relevant features of a criminal trial 53 There are two features of a criminal trial which it is helpful to bear in mind when addressing the appellant’s contentions, particularly the contention that any encouragement from the appellant to Skinner was withdrawn or ‘spent’ by the time the deceased was murdered (appeal ground 1.7). The first relates to the role of the judge, and the second relates to the role of defence counsel in the conduct of a criminal trial before a jury. -- 14 of 121 -- [2023] SASCA 111 Livesey P 11 The trial judge must give directions on the ‘real issues’ 54 Fundamental to our system of criminal justice is the right of an accused to receive a fair trial according to law. A concomitant of that right is the duty of the judge presiding over a jury trial to ensure fairness and balance so as to avoid any miscarriage of justice. The duty to ensure fairness and balance at the trial is usually achieved by the instructions, directions and warnings given by the trial judge to the jury, both as to the law and the application of the law to the evidence, as well as the case which the accused makes:6 The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. 55 In the ordinary course of a criminal appeal, as here, the appeal court will be called upon to determine whether an evidentiary ruling or a direction given by the trial judge in the course of the trial, or less commonly before trial, resulted in the accused being deprived of a fair trial and led to a miscarriage of justice.7 56 The instructions, directions and warnings which the trial judge must give are those essential to the resolution of the “real issues” in the case. The real issues are those necessary to address the verdicts required of the jury, which are defined by the charges laid, the defences relied on and the evidence relevant to the determination of those issues.8 57 As the High Court said in Alford v Magee, directions about the law are only necessary in so far as they bear on the real issues in the case; it is not necessary for a trial judge to provide instruction about the general law without regard to the real issues which “will generally narrow themselves down”.9 Diplock LJ explained in R v Mowatt that a “general dissertation” on some aspect of the criminal law is not required:10 The function of a summing-up is not to give the jury a general dissertation upon some aspect of the criminal law, but to tell them what are the issues of fact on which they must make up their minds in order to determine whether the accused is guilty of a particular offence. 58 Just as it is not necessary to instruct the jury on the criminal law generally, it is not necessary to give directions on every legal or factual issue that might conceivably arise on the evidence. Rather, it is only necessary to instruct the jury on so much of the law and the facts as is necessary to guide the jury to a decision 6 RPS v The Queen (2000) 199 CLR 620, 637 [41] (Gaudron ACJ, Gummow, Kirby and Hayne JJ). 7 Dietrich v The Queen (1992) 177 CLR 292, 299-300 (Mason CJ and McHugh J). 8 Alford v Magee (1952) 85 CLR 437, 466. 9 Alford v Magee (1952) 85 CLR 437, 466. 10 R v Mowatt [1968] 1 QB 421, 426 (Diplock LJ). -- 15 of 121 -- [2023] SASCA 111 Livesey P 12 about guilt based on the real issues in the case.11 Indeed, in Huynh v The Queen the High Court referred to Alford v Magee in this context:12 The contention that it is an error of law for a trial judge to omit to instruct a jury on all of the elements of liability for an offence cannot stand with the many decisions of this Court affirming the statement of the responsibility of the trial judge in Alford v Magee.13 The duty is to decide what the real issues in the case are and to direct the jury on only so much of the law as they need to know to guide them to a decision on those issues. The application of the principle was illustrated in Alford v Magee by reference to the trial of an accused for larceny at which the sole issue is proof of the taking away of the thing stolen. In such a case it is neither necessary nor desirable to instruct the jury on the elements of the offence of larceny. Commonly liability does not reduce to a single factual question at the trial and the trial judge’s responsibility will not be as readily discharged as in the celebrated illustration of Sir Leo Cussen’s “great guiding rule”.14 Discharge of that responsibility will usually involve instruction respecting the elements of the offence15 and, where appropriate, the principles governing accessorial or joint enterprise liability. This is not to say that the omission to specify an element of liability that is not in issue in the trial is legal error. 59 So, the discharge of a trial judge’s responsibility will usually extend to instruction about the elements of the offence and, where relevant, about the principles governing accessorial or joint enterprise liability. Nonetheless, the failure to address an element of liability “that is not in issue” does not amount to “legal error”.16 60 What become the real issues in the case, and what is not in issue, are usually determined by the evidence and the way in which the case was conducted before the jury. The directions given by the trial judge must be tailored to reflect those matters, not the matters that are not in issue.17 To do otherwise courts the risk that the jury will be inundated with information, directions and warnings which are disengaged from the real issues. 61 Whilst at times difficult, particularly in a complex case, it is therefore necessary that the trial judge exercise judgment about what is in issue and what is not in issue, guided by the conduct and speeches of counsel when addressing the directions that must be given to a jury. 62 There at least two reasons why a trial judge must confine directions to the real issues. Both are associated with the burden associated with hearing a criminal trial before a jury which, in a complex case such as this, amounts to a heavy burden for all involved. The first is that the burden on a trial judge to prepare and present 11 Alford v Magee (1952) 85 CLR 437, 466 (Dixon, Williams, Webb, Fullagar and Kitto JJ). As was pointed out in R v Adrakakos [2003] VSCA 170, [11] (Ormistion JA), this principle from Alford v Magee has been re-affimed in the High Court many times. 12 Huynh v The Queen (2013) 87 ALJR 434, [31]. 13 Alford v Magee (1952) 85 CLR 437, 466 (Dixon, Williams, Webb, Fullagar and Kitto JJ); and see R v Getachew (2012) 248 CLR 22, [29] (French CJ, Hayne, Crennan, Kiefel and Bell JJ) and the cases set out therein at footnote 35. 14 Alford v Magee (1952) 85 CLR 437, 466 (Dixon, Williams, Webb, Fullagar and Kitto JJ). 15 RPS v The Queen (2000) 199 CLR 620, [41] (Gaudron ACJ, Gummow, Kirby and Hayne JJ). 16 Huynh v The Queen (2013) 87 ALJR 434, [31]. 17 JJP v The Queen (2021) 139 SASR 91, [158] (Doyle JA). -- 16 of 121 -- [2023] SASCA 111 Livesey P 13 a summing up should be kept within manageable parameters. Secondly, and more importantly, directions on issues other than the real issues are only likely to add unnecessarily to the length and detail of a summing up, with the associated risk that an overlong summing up ranging across apparently irrelevant matters may only confuse and deflect the jury from their proper task. For example, in Doggett v The Queen it was emphasised that directions to the jury must be kept to a minimum, and that they must be comprehensible and referable to the particular circumstances of the case, having regard to the way in which the trial was conducted:18 The essential principle of flexibility: In a number of recent decisions, this Court has resisted attempts to add needlessly to the duties of judges, presiding in criminal trials held before juries, by insisting on “more, and more complicated, directions than the particular case requires”19. The starting point for considering what the law requires in the present case is, therefore, an appreciation of this basic principle. The obligatory components of a judge’s directions to a jury should be kept to a minimum20. Any directions given must also be comprehensible21. They should include basic instructions about the functions of the judge and jury, the onus and burden of proof and the legal elements of the offence or offences charged. However, beyond such essential matters, wide latitude is reserved to the trial judge to provide such warnings and comments as the circumstances of the particular case, and the conduct of the trial, require. 63 Whatever the theoretical issues that might be thrown up in an academic discussion about criminal liability in any particular case, a judge presiding over a criminal trial before a jury has a duty to identify the real issues and to direct the jury on those. Whilst important, that duty must be met in a pragmatic way. It is therefore necessary, particularly when addressing cases involving “multiple layers of complexity”, to ensure that jury directions remain “as clear, brief, simple and comprehensible as possible”.22 In part that is achieved by confining directions to the real issues. A party is ordinarily bound by the conduct of counsel 64 Whilst a criminal trial is accusatorial, it is also adversarial.23 Appellate review of the conduct of a trial must commence with an understanding of the way in which the trial was conducted, which extends to those issues which were put into contest by the parties, through their counsel:24 18 Doggett v The Queen (2001) 208 CLR 343, [115] (Kirby J). 19 Melbourne v The Queen (1999) 198 CLR 1, 52 [142], (Hayne J); see also at 52-53 [143], citing Alford v Magee (1952) 85 CLR 437, 466; KRM v The Queen (2001) 206 CLR 221, 259 [114]. 20 See Flatman and Bagaric, “Juries Peers or Puppets – The Need to Curtail Jury Instruction”, Criminal Law Journal, vol 22 (1998) 207, 209-211. 21 Zoneff v The Queen (2000) 200 CLR 234, 260 [64]-[65]. 22 Being the stated legislative intention for the Juries Directions Act 2013 (Vic), see Byrne and Maxwell AC, “Putting Jurors First: Legislative Simplification of Jury Directions” (2019) 43 Crim LJ 180. 23 Gately v The Queen (2007) 232 CLR 208, [88] (Hayne J). 24 Nudd v The Queen (2006) 80 ALJR 614, [79] (Kirby J). -- 17 of 121 -- [2023] SASCA 111 Livesey P 14 … Ordinarily, a party is held to the way in which his or her counsel has presented that party’s case.25 This is not merely because the relationship between lawyer and client is grounded in the law governing agency and apparent authority.26 There are other, highly pragmatic, reasons for this approach that cannot be ignored. The adversarial system of trial (including its variant of the accusatorial criminal trial) could not operate effectively without according a high measure of deference to the multitude of decisions necessarily made by a legal representative in the course of conducting a trial.27 The appellate approach is thus a practical one, influenced by the realities of our trial process. 65 There is a clear correlation between the conduct of counsel and the way in which the trial judge determines the real issues and directs the jury on them. Of necessity, those are the issues on which the parties, through their counsel, have chosen to litigate:28 It is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law. Upon the evidence and under the judge’s directions, the jury is to decide whether the accused is guilty or not. Consequently if the proceedings are not blemished by error on the part of the judge, whether it be on a matter of law or in the proper conduct of the proceedings, or by misconduct on the part of the jury, there has been a fair trial. 66 Great weight is attached to the conduct of counsel at the trial, whether or not it is before a jury. The parties are ordinarily bound by the conduct of their counsel, who is conferred a wide discretion as to the manner in which proceedings are conducted.29 That discretion extends to how and on what bases the proceeding will be fought,30 together with the issues or forensic landscape against which the facts are to be determined.31 Counsel is free to determine “what issues to contest” and “what lines of argument to pursue”.32 67 Nonetheless, the common law also recognises that the trial judge must direct the jury on all defences properly raised on the evidence, even if addressing those 25 R v Birks (1990) 19 NSWLR 677, 684 (Gleeson CJ). See also Re Ratten [1974] VR 201, 214; R v Miletic [1997] 1 VR 593, 598. 26 Strauss v Francis (1866) 1 QB 379, 381 (Blackburn J) cited in TKWJ v The Queen (2002) 212 CLR 124, [74] (McHugh J). 27 R v Birks (1990) 19 NSWLR 677, 682-685; TKWJ v The Queen (2002) 212 CLR 124, [8] (Gleeson CJ); Ali v The Queen (2005) 79 ALJR 662, [7] (Gleeson CJ). 28 Ratten v The Queen (1974) 131 CLR 510, 517 (Barwick CJ). 29 Nudd v The Queen (2006) 80 ALJR 614, [9] (Gleeson CJ); TKWJ v The Queen (2002) 212 CLR 124, [74] (McHugh J). The cases were recently reviewed in Police and Department for Correctional Services v Mahon (2022) 141 SASR 374, [43]-[60] (Livesey P, Lovell and Doyle JJA). 30 Gately v The Queen (2007) 232 CLR 208, [77] (Hayne J, with whom Gleeson CJ, Heydon and Crennan JJ agreed), citing, amongst other authorities, Ratten v The Queen (1974) 131 CLR 510, 517 (Barwick CJ), RPS v The Queen (2000) 199 CLR 620, 630 [22] and TKWJ v The Queen (2002) 212 CLR 124, 158 [106]. 31 Ratten v The Queen (1974) 131 CLR 510, 517 (Barwick CJ); Roberts v The Queen (2022) 141 SASR 73, [1] (Livesey P), [63] (Doyle JA, with whom David JA agreed). 32 Nudd v The Queen (2006) 80 ALJR 614, [9] (Gleeson CJ). -- 18 of 121 -- [2023] SASCA 111 Livesey P 15 defences is contrary to the approach taken by counsel for the accused. The breadth of the obligation was explained by Barwick CJ in Pemble v The Queen:33 There is no doubt that the course taken by counsel for the appellant at the trial contributed substantially to the form of the summing up. If the trial had been of a civil cause, it might properly be said that the trial judge had put to the jury the issues which had arisen between the parties. But this was not a civil trial. The decision of the House of Lords in Mancini v Director of Public Prosecutions [1942] AC 1 following Lord Reading's judgment in R v Hopper (1915) 2 KB 431 and its influence in the administration of the criminal law must ever be borne in mind (see Kwaku Mensah v. The King [1946] AC 83, at p 92-94). Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part. 68 At the end of this passage, Barwick CJ described the obligation of the trial judge to secure a fair trial according to law as extending to “any matter upon which the jury could … find or base a verdict in whole or in part”. 69 The Chief Justice then described the duty of the trial judge as extending to put, “any matters on which the jury, upon the evidence, could find for the accused”:34 Here, counsel for the defence did not merely not rely on the matters now sought to be raised; he abandoned them and expressly confined the defence to the matters he did raise. However, in my opinion, this course did not relieve the trial judge of the duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused … 70 These passages from Pemble v The Queen have been referred to on numerous occasions, generally in connection with the duty of a trial judge to leave for the consideration of the jury any defences which may be available on the evidence, even if disavowed by the defence.35 71 The references made to a “defence” in this context are usually references to an issue on which the accused bears at least an evidential burden,36 although they may also extend to statutory defences on which the accused also bears a legal or persuasive burden.37 For example the approach required of the trial judge in 33 Pemble v The Queen (1971) 124 CLR 107, 117-118 (Barwick CJ), 130 (Menzies J). 34 Pemble v The Queen (1971) 124 CLR 107, 117-118 (Barwick CJ). 35 See, for example, R v Perks (1986) 41 SASR 335, 343 (White J, with whom O’Loughlin J agreed. King CJ agreed in separate reasons), “if there is a basis on the evidence on which a jury, not being satisfied of all the elements of murder could find manslaughter, the judge is bound to direct the jury accordingly, His duty cannot be controlled by the tactics of the accused.” See also Bedi v The Queen (1993) 61 SASR 269, 273 (Duggan J, with whom Bollen and Mullighan JJ agreed). 36 The identification of a true ‘defence’ rather than an exception under s 56 of the Criminal Procedure Act 1921 (SA) was recently discussed in Dietman v Karpany [2023] SASCA 52, [39]-[49] (Livesey P, Doyle and Bleby JJA). 37 Braysich v The Queen (2011) 243 CLR 434, [32] (French CJ, Crennan and Kiefel JJ). -- 19 of 121 -- [2023] SASCA 111 Livesey P 16 connection with defences was explained by the majority in Braysich v The Queen in this way:38 If a trial judge has to consider whether, at the close of the evidence in a criminal trial, a particular defence should be left to the jury, the question which the trial judge will have to ask himself or herself will be: 1. In a case where the legal burden is on the prosecution and the evidential burden on the accused – is there evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence had been negatived?39 2. In a case in which both the legal burden and the evidential burden rest upon the accused – is there evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to conclude on the balance of probabilities that the defence had been established? 72 In that case the High Court went on to explain that the “authority and responsibility of the judge to instruct the jury on questions of law” requires that a defence be addressed even if counsel has “expressly abandoned” it, unless there is “no evidence capable of supporting” the defence:40 In a trial by jury the issues of fact are decided by the jury “in the presence and under the superintendence of a judge empowered to instruct them on the law”.41 It is an “elementary principle of the criminal law that unless express statutory provision to the contrary be made, the onus lies upon the Crown throughout to negative defences sufficiently raised.”42 The authority and responsibility of the judge to instruct the jury on questions of law requires the judge “to put to the jury every lawfully available defence open to the accused on the evidence even if the accused’s counsel has not put that defence and even if counsel has expressly abandoned it.”43 It may also require a direction to the jury that there is no evidence capable of supporting a particular defence to the charge and that they are not to consider that defence in their deliberations.44 In such a case the accused is said to have failed to meet the “evidential burden” necessary to raise the defence. Such a direction may be made in respect of a defence which, if open, the prosecution, bearing the “legal burden” of proof, would have to negative beyond reasonable doubt.45 It may also be made in respect of a statutory defence, such as that created by s 998(6), which by statute the accused is required 38 Braysich v The Queen (2011) 243 CLR 434, [36] (French CJ, Crennan and Kiefel JJ). 39 A question on the formulation of which there is “little direct authority” – Heydon, Cross on Evidence, (LexisNexis Australia, 8th ed, 2010) at [7050]. See Stingel v The Queen (1990) 171 CLR 312 in relation to the defence of provocation. 40 Braysich v The Queen (2011) 243 CLR 434, [32] (French CJ, Crennan and Kiefel JJ). 41 Cesan v The Queen (2008) 236 CLR 358, 390 [103] per Gummow J, citing Capital Traction Co v Hof 174 US 1 at 13-14 (1899). 42 King v The Queen (2003) 215 CLR 150, 168 [52] (Gummow, Callinan and Heydon JJ). 43 Fingleton v The Queen (2005) 227 CLR 166, 198 [83] (McHugh J) (footnote omitted); and see Pemble v The Queen (1971) 124 CLR 107, 117-118 (Barwick CJ). 44 Da Costa v The Queen (1968) 118 CLR 186, 213-215 (Owen J, Kitto, Menzies and Windeyer JJ agreeing); Lee Chun-Chuen v The Queen [1963] AC 220, 229-230 (Lord Devlin); Parker v The Queen (1964) 111 CLR 665, 681-682; [1964] AC 1369, 1392. 45 As to the defences at common law and created by statute where the accused bears an evidential burden, despite the prosecution's legal burden, see generally Heydon, Cross on Evidence, (LexisNexis Australia, 8th ed, 2010) at [7050]. -- 20 of 121 -- [2023] SASCA 111 Livesey P 17 to establish.46 The standard of proof necessary to discharge the legal burden imposed upon the accused in such a case is proof on the balance of probabilities.47 73 So, even if defences have been explicitly eschewed by counsel for the accused, the trial judge is nonetheless obliged to give directions about those defences which are raised on the evidence so that the jury can decide whether the accused has any defence to the charges faced. Whether defences are raised for this purpose is determined on the view of the evidence most favourable to the accused.48 74 A recent example of the approach required is provided by Lindsay v The Queen, where it was common ground that there was evidence upon which a reasonable jury might consider it possible that the appellant was provoked by the deceased’s conduct and that he lost his self-control when he carried out the fatal assault, with the result that provocation had to be left to the jury in connection with its deliberation on a charge of murder.49 75 The approach which is applied to common law or statutory defences might be seen as complimentary to the duty of a trial judge to determine the real issues, being those put into issue at the trial, having regard to the evidence and the forensic decisions made by counsel in the conduct of the case, so as to ensure that the accused receives a fair trial according to law. 76 What is meant by a “defence” for this purpose may however extend beyond what might strictly be viewed as a defence, as a convenient way to refer to any line of argument that may defeat a prosecution.50 There are other similarly broad statements which in their terms are not confined to defences. One example is provided by R v Stokes, a murder case concerning the failure of the trial judge to adequately leave the issue of intoxication to the jury, an issue which the Crown had to eliminate in proof of intent rather than a defence which the appellants had to establish.51 The approach of the trial judge was based on an agreement between counsel. The reasons of Hunt J in R v Stokes explained why the failure of the trial judge to leave the issue to the jury entailed an error of law:52 The disavowal by counsel then appearing for the appellants that intoxication was being raised as an issue, though no doubt made for tactical reasons which were bona fide thought to be in the best interests of their clients, did not relieve the judge of the duty to give directions in relation to that issue in this case: Pemble v The Queen (1971) 124 CLR 107 at 117-118, 130. Counsel cannot concede a matter of law to the disadvantage of the accused: Pemble (at 133); R v Galambos (1980) 2 A Crim R 388 at 395, 396-397. The judge must comply with his duty to put to the jury any issue sufficiently raised by the evidence even if that issue gives an air of unreality to the case sought to be 46 Parker v The Queen (1964) 111 CLR 665, 681-682; [1964] AC 1369, 1392. 47 See eg Sodeman v The King (1936) 55 CLR 192, 216 (Dixon J); Johnson v The Queen (1976) 136 CLR 619, 644 (Barwick CJ), 653-654 (Gibbs J), 660 (Mason J agreeing). 48 Queen v R (1981) 28 SASR 321, 322-323 (King CJ), citing with approval the speech of Viscount Simon in Holmes v Director of Public Prosecutions [1964] AC 588, 597, a case of provocation. 49 Lindsay v The Queen (2015) 255 CLR 272, [13]-[16]. 50 Glanville Williams, Textbook of Criminal Law (Stevens & Sons, 2nd ed, 1978), 113. 51 R v Stokes (1990) 51 A Crim R 25, 32. 52 R v Stokes (1990) 51 A Crim R 25, 32. Referred to with approval in Bedi v The Queen (1993) 61 SASR 269, 273. -- 21 of 121 -- [2023] SASCA 111 Livesey P 18 made by the accused in relation to some other issue: R v Lawson [1986] VR 515 at 548; R v Marshall (unreported, Court of Criminal Appeal, NSW, Gleeson CJ, Priestley and Sharpe JJ, 17 July 1990) at pp 1-2. 77 Apart from Pemble v The Queen, the cases referred to by Hunt J in this passage were the cases where what should have been left to the jury concerned intoxication,53 or self-defence.54 Ultimately Hunt J concluded that the error caused no substantial miscarriage of justice because a conviction was inevitable. 78 Defences aside, where parties are represented by experienced and competent senior counsel it is likely to be an unusual case where it is necessary for a trial judge to sum up in a manner which is inconsistent with the way in which counsel has determined to run a case. For example, if the trial has been conducted on the basis that an element of an offence is not in issue, Huynh v The Queen shows that the trial judge makes no error by failing to treat the element as if it were in issue.55 79 Moreover, the trial judge is not required to address unreal, fanciful or speculative hypotheses.56 In R v Brown it was suggested on an appeal against a murder conviction that a factual hypothesis should have been put to the jury even though it had never been raised by the accused (who had given four other versions of events) or on his behalf by counsel. The Full Court rejected the complaint. Pincus J (with whom Fox J agreed) explained:57 It appears to me that only in unusual circumstances should it be held to be erroneous for a trial judge to fail to place before the jury hypotheses derived from his own imagination, inconsistent with the Crown case and with the defence case. 80 In the same case Miles J (with whom Fox J also agreed) explained that the issue raised on appeal was not a defence but a way of looking at the evidence, “simply an alternative version of the facts”:58 The trial judge in summing up fairly was not bound to pick and choose from the material before the jury in order to explain every possible inference of fact which might have arisen from the evidence and the accused's statement. In particular, he was not bound to isolate the particular inferences which the respondent now seeks to rely upon. The duty of the trial judge is to “secure for the accused a fair trial according to law” (Pemble at 117 per Barwick CJ) and this involves directions as to the relevant law as well as an explanation of the defences that may be seen to arise from the evidence. However, it is another matter altogether to put to the jury alternative inferences of fact upon which neither the defence nor the prosecution have sought to rely and which neither raise a matter which is in positive 53 R v Galambos (1980) 2 A Crim R 388, following cases such as Viro v The Queen (1978) 141 CLR 88 and Pemble v The Queen (1971) 124 CLR 107. 54 R v Lawson and Forsythe [1986] VR 515; R v Marshall (unreported, Court of Criminal Appeal, NSW, Gleeson CJ, Priestley and Sharpe JJ, 17 July 1990) at pp 1-2 following cases such as Viro v The Queen (1978) 141 CLR 88 and Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645. 55 Huynh v The Queen (2013) 87 ALJR 434, [31], “This is not to say that the omission to specify an element of liability that is not in issue in the trial is legal error”. 56 R v Payne [1970] Qd R 260, 264 (Lucas J, with whom Hanger and Hoare JJ agreed); R v Holden [1974] 2 NSWLR 548, 551 (Street CJ, McClemens CJ at CL and Slattery J); R v Burns [1975] VR 241, 255 (Pape, Menhennitt and Nelson JJ); R v Brown (1987) 78 ALR 368, 373 (Pincus J), 380-381 (Miles J). 57 R v Brown (1987) 78 ALR 368, 373 (Pincus J, with whom Fox J agreed). 58 R v Brown (1987) 78 ALR 368, 381 (Miles J). -- 22 of 121 -- [2023] SASCA 111 Livesey P 19 defence nor materially weaken the prosecution case. In the atmosphere of the trial, the presiding judge is usually in a better position than an appellate court to decide whether fairness demands putting such alternatives to the jury. In R v Hopper [1915] 2 KB 431 at 435 Lord Reading CJ said: “Whatever the line of defence adopted by counsel at the trial of a prisoner, we are of opinion that it is for the judge to put such questions as appear to him properly to arise from the evidence even although counsel may not have raised some question himself.” Although it was understandable and proper that counsel for the respondent at the trial might have wished to rely upon the hypothesis now raised without mentioning it to the jury, the fact that counsel sought no relevant directions from the trial judge in that regard is eloquent testimony that that hypothesis played no real part in the trial and that the trial judge's silence on the point in no way affects the essential fairness of the summing up. 81 More recently, and consistently, in R v Baden-Clay the High Court addressed Pemble v The Queen in the following way, emphasising that the requirement that the prosecution prove guilt is consistent with the further proposition that the trial judge secure a fair trial according to law, each having regard to the way in which defence counsel conducted the case:59 It may readily be accepted that “it is not incumbent on the defence either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference.”60 That proposition merely reflects that it remains for the prosecution to prove the accused's guilt of an offence beyond reasonable doubt.61 And it does not detract from, and is consistent with, the further proposition that a “trial judge must be astute to secure for the accused a fair trial according to law.”62 A trial judge must adequately direct the jury “both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part”;63 the trial judge is under a "duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused”64 (emphasis added). No complaint is made in this Court that the directions given to the jury were inadequate. The directions “put fairly before the jury the case which the accused” made.65 The trial judge left manslaughter to the jury and put to them the four hypotheses identified by defence counsel. 82 The trial judge was not required to address a hypothesis “which was not put for tactical reasons” by counsel at the trial, albeit in a case where the accused gave evidence:66 But it is quite another matter, as occurred on appeal to the Court of Appeal and again to this Court, to contend for a hypothesis which was not put to the jury for tactical reasons, which is directly contrary to evidence of the respondent at trial, which is directly contrary to the way in which the respondent's counsel conducted the defence and which, in response 59 R v Baden Clay (2016) 258 CLR 308, [62] (French CJ, Kiefel, Bell, Keane and Gordon JJ). 60 Barca v The Queen (1975) 133 CLR 82, 105. 61 Knight v The Queen (1992) 175 CLR 495, 502. 62 Pemble v The Queen (1971) 124 CLR 107, 117. 63 Pemble v The Queen (1971) 124 CLR 107, 117-118. 64 Pemble v The Queen (1971) 124 CLR 107, 118. See also James v The Queen (2014) 253 CLR 475, 481 [10]. 65 RPS v The Queen (2000) 199 CLR 620, 637 [41]. 66 R v Baden-Clay (2016) 258 CLR 308, [63] (French CJ, Kiefel, Bell, Keane and Gordon JJ). -- 23 of 121 -- [2023] SASCA 111 Livesey P 20 to direct questions from the trial judge, was expressly rejected by the respondent's counsel. The issues and available lines of argument to be pursued were narrowed by the way the case was conducted at trial. That is commonplace. But it cannot be ignored. The hypothesis identified by the Court of Appeal was not open. Once that hypothesis is rejected, no other hypothesis consistent with guilt of manslaughter, but innocence of murder, has ever been identified at trial, before the Court of Appeal or in this Court. 83 In R v Baden-Clay the High Court emphasised that the way the case was conducted at the trial “narrowed” the issues and available lines of argument. 84 Whilst each case will inevitably depend on its own particular facts and circumstances, it is not usually necessary for the trial judge to treat the elements of a crime, or the evidence relevant to those elements, as if they were defences, or as if they were in contest, where those elements have not been put into issue, or where possible ways of viewing the evidence relevant to the elements have not featured in the conduct of the trial. Counsel may have good reasons, if not also explicit instructions, for conducting a case in a particular way, and this may not necessarily be apparent to the trial judge or the appeal court. 85 In many cases an impugned direction or summing-up can only be understood and fairly assessed by reference to the conduct of counsel, and the way in which counsel elected to address what were regarded at trial as the real issues in the case. That kind of approach may well assist the appeal court to conclude that the way in which the case was conducted, and the associated absence of any suggested direction, has caused the appellant no prejudice and there has been no failure to ensure that the trial was fair according to law.67 86 When considering whether a party is bound by the conduct of counsel at the trial, particularly where a different course is suggested by new counsel on appeal, it will usually be relevant to consider whether there is any rational forensic justification for counsel’s approach at the trial, including for any failure to object or seek a direction concerning a point which is later raised on appeal.68 87 In many cases the failure of defence counsel at the trial to take a particular approach, or to object or seek a direction regarding certain evidence, may represent an indication that the issue did not feature in the trial and was of no real significance.69 That may influence the determination made by the appeal court about what were the real issues in the case, particularly where the appeal court is 67 R v Baden-Clay (2016) 258 CLR 308, [62] citing Pemble v The Queen (1971) 124 CLR 107, 117. 68 Orreal v The Queen (2021) 274 CLR 630, [16] (Kiefel CJ and Keane J); Gately v The Queen (2007) 232 CLR 208, [46] (Kirby J). 69 See, for example, Farrell v R (1998) 194 CLR 286, [53] (Hayne J); R v Aziz [1982] 2 NSWLR 322, 330–331 (Samuels JA); R v Calides (1983) 34 SASR 355, 359 (Wells J, with whom Matheson and Legoe JJ agreed); Chamberlain v R (1983) 72 FLR 1, 11–12, 17 (Bowen CJ and Forster J); R v Gallagher [1998] 2 VR 671, 684 (Brooking JA), 688 (Callaway JA) and 702 (Ashley AJA); R v MMJ (2006) 166 A Crim R 501, [33]-[34] (Warren CJ), [94]-[97] (Ashley JA, with whom Buchanan JA agreed); Wyper v R [2017] ACTCA 59, [65]–[67] (the Court); R v Singh [2019] SASCFC 51, [77] (Doyle J, with whom Peek and Parker JJ agreed). -- 24 of 121 -- [2023] SASCA 111 Livesey P 21 invited to address what appears to be an entirely new issue raised for the first time on appeal. 88 Real care must be exercised when considering whether there is a miscarriage of justice associated with the failure by the trial judge to address entirely new points which did not feature at the trial. 89 By contrast, the absence of any rational forensic justification for the conduct of counsel at the trial may well assist the appeal court to identify whether there has been a miscarriage of justice within the meaning of the common form criminal appeal provision.70 Indeed, in that kind of case the failure by counsel to put a matter into issue, or to address an element or evidence relevant to an element of the charge, may assist the appeal court to conclude that there has been a miscarriage of justice. The conduct of this trial: opening and defence closing, summing up 90 Before coming to appeal ground 1, it necessary to outline the way this trial was conducted on the topic of the appellant’s liability as an accessory. The prosecution opening 91 In the course of the prosecution opening, the prosecutor referred to the “hunting spree” message sent by Skinner to the appellant at 6.09 pm on 14 December 2018, and submitted to the jury:71 On the prosecution case, far from talking Skinner down, Hinrichsen proceeds to send him messages including “I am hurting so much” and “maybe I should end my life”. 92 The prosecutor then referred to the trip made by the appellant and Skinner to the Christies Beach Police Station. Later in her opening, the prosecutor explained the way in which the case was made against the appellant:72 The prosecution also relies upon the concept of a joint criminal enterprise in order to implicate Tanya Hinrichsen in the murder of her husband… The prosecution contends that there is a large body of evidence from which it will be open to you to find that Tanya Hinrichsen and Gavin Skinner had reached an agreement that Steven Hinrichsen would be killed or caused grievous bodily harm. On the prosecution case Tanya Hinrichsen played her part in bringing about that outcome by removing herself from … Nathan Court and giving Skinner access to those premises, and thereby access to her already physically vulnerable husband. 70 Hofer v The Queen (2021) 274 CLR 351, [113]-[116] (Gageler J). See also R v Birks (1990) 19 NSWLR 677, 682-685; TKWJ v The Queen (2002) 212 CLR 124, [8] (Gleeson CJ); Nudd v The Queen (2006) 80 ALJR 614, [9] (Gleeson CJ); Gately v The Queen (2007) 232 CLR 208, [47] (Kirby J); Khoury v The Queen (2011) 209 A Crim R 509, [104]-[105] (Simpson J, with whom Davies J and Grove AJ agreed). 71 Transcript of Proceedings, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 8 June 2021 – 26 July 2021), 379. 72 Transcript of Proceedings, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 8 June 2021 – 26 July 2021), 397-398. -- 25 of 121 -- [2023] SASCA 111 Livesey P 22 In this trial the prosecution puts its case against Tanya Hinrichsen on an alternate footing. The prosecution contends that Tanya Hinrichsen can be found guilty of murder on the basis of what is termed counselling or procuring. This alternate basis of liability…requires the prosecution to prove beyond reasonable doubt that by her words, her actions or both she intentionally encouraged Gavin Skinner to kill her husband or inflict grievous bodily harm upon the man. 93 On its alternate case, the prosecution opened to the jury that it was proposing to prove beyond reasonable doubt that the appellant, by her words or conduct or both, intentionally encouraged Skinner to kill the deceased or inflict grievous bodily harm upon him. The defence ‘opening’ and closing 94 Immediately following the prosecution opening, senior counsel for the appellant identified for the jury what he described as the “central or critical issues in this case” regarding the appellant. Counsel said the issues were whether the appellant was part of an agreement or plan to commit murder, as well as whether she was aiding and abetting or counselling or procuring the commission of the murder.73 95 Counsel for the appellant then explained that the “critical issue” was whether the appellant participated by being part of a plan or an agreement “with whoever might have killed Mr Hinrichsen”. Counsel suggested to the jury that they consider what the appellant said, whether orally or by way of text, and what the appellant meant in relation to whatever she said. Senior counsel urged the jury to consider what it was the appellant did that “makes her guilty of murder”, emphasising that the issue is “what the evidence demonstrates that the appellant did not do”. 96 In the course of his closing address for the appellant, counsel returned to these matters, which he described as the “critical issue, or issues” and submitted that these were:74 … at the very start of this trial … I endeavoured to identify what I anticipated would be the critical issue, or issues … and that issue I anticipated was namely whether the evidence established that Tanya Hinrichsen was party to any agreement that her husband be murdered on 15 December 2018 and participated in some way in any agreement or even knew of any agreement between the people who killed her husband, that any agreement had existed let alone encouraged that it should happen. That still is the issue… what she may have said, and you have got a lot of evidence of that, but perhaps more so than what she may have said, what was meant or not meant by what she may have said. Then, of course, this I think will be a critical issue for your consideration more so perhaps than what she said or what she meant, what did she actually do or not do. 73 Transcript of Proceedings, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 8 June 2021 – 26 July 2021), 403-404. 74 Transcript of Proceedings, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 8 June 2021 – 26 July 2021), 1354. -- 26 of 121 -- [2023] SASCA 111 Livesey P 23 97 The closest that counsel came to directly addressing the “hunting spree” exchange was to later contend that the appellant’s response was merely “a throw away line” which bore no relationship to the “actual murderous plan” which came into effect “much, much later”.75 No attempt was made to address the messaging between the appellant and Skinner at the time of the two November assaults. 98 Clearly, counsel determined to meet the Crown case that the events and emotions slowly built over November and December by concentrating only on the final 24 hours, dealing with the incriminating “hunting spree” messaging in a light manner. In what followed, counsel took the jury through the events of 14 and 15 December 2018 after that message at some length, emphasising at each stage the absence of any sign that the appellant was procuring murder. For example, counsel put to the jury:76 I suppose knowing human nature as you do and knowing the motivations and intentions of Tanya Hinrichsen on 14 December and the early hours of 15 December you might fairly take the view that what she was wanting to be achieved had been achieved. From late afternoon she had formed the view that she wanted to get out of here – that is move out from her husband. By 8 o’clock at night she had decided that that process may be assisted by going and getting some advice from police… Matter for you members of the jury, but you might think that the answer is glaringly obvious: when she got back from the police and getting the advice she got the offer of moving into the spare room at Rachel Thrupp’s house, so now her desired solution was within relatively easy reach… 99 It is difficult to regard this part of the address as amounting to a submission that, if the appellant had already agreed to or procured murder, she was countermanding that agreement or procurement. 100 The better view of these submissions is that counsel was building the case for why the appellant no longer had any motive to agree to or procure the murder of her husband. The submissions were directed to speaking with police about leaving her husband and finding a place to stay. They were not directed to what the appellant had already agreed or procured. These submissions were put in a context where counsel had already urged the jury to find that there was nothing in the appellant’s conduct which, to this point, could be described as agreeing to or procuring murder. 101 Indeed, counsel mocked the prosecution case against the appellant thereafter, ridiculing the notion that “despite being asleep, she counselled, or procured, or encouraged others to commit … murder”.77 Counsel emphasised that, by the time 75 Transcript of Proceedings, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 8 June 2021 – 26 July 2021), 1372. 76 Transcript of Proceedings, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 8 June 2021 – 26 July 2021), 1378. 77 Transcript of Proceedings, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 8 June 2021 – 26 July 2021), 1371. -- 27 of 121 -- [2023] SASCA 111 Livesey P 24 the appellant went to sleep, there was “nothing to see here”. The argument was that, whatever occurred thereafter, it did not involve the appellant in any way.78 102 Later in his address, counsel for the appellant questioned when the plan for murder was formulated, arguing that it was likely formulated only shortly before, or on the way to, the deceased’s home.79 On that basis, counsel argued, the appellant could hardly be a party to murder because “she was asleep”.80 103 The forensic attraction of putting the case for the appellant in this way is obvious. Rhetorically, it was effectively said to the jury, how can anyone make an agreement to murder or procure murder whilst asleep? 104 Counsel might well have reasoned that this was the appellant’s best means of addressing the prosecution case, rather than by tackling head-on the problematic events in November and December, including the “hunting spree” exchange of messages on the night of 14 December 2018. Those were addressed by counsel by simply asking the jury to question what the appellant really meant. 105 Objectively, counsel is likely to have reasoned that it would have strained credulity to suggest to the jury that there was anything in the appellant’s conduct on the night of 14 December 2018 which had the effect of explicitly countermanding her earlier conduct and messaging. There was no evidence to furnish a basis to suggest that, if there was a change of heart in the appellant, she had done all that was reasonable and practicable in the circumstances to withdraw her encouragement.81 106 There was simply no evidence that the appellant said anything to Skinner or overtly acted on the night of 14 December 2018 in a way which had the effect of unwinding what she had previously said to him, including in the “hunting spree” exchange during which, it will be recalled, she told Skinner, “If it’s to do him then I’ll give you my permission.” The directions on accessorial liability in this case 107 In the course of her summing up, the trial judge addressed accessorial liability, pointing out that the prosecution accepted that the appellant was not at Nathan Court when the deceased was murdered on the morning of 15 December 2018:82 78 Transcript of Proceedings, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 8 June 2021 – 26 July 2021), 1379. 79 Transcript of Proceedings, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 8 June 2021 – 26 July 2021), 1381. 80 Transcript of Proceedings, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 8 June 2021 – 26 July 2021), 1382. 81 White v Ridley (1978) 140 CLR 342, 351 (Gibbs J); R v Sully (2012) 112 SASR 157, [53]-[54], [75] (Vanstone J, with whom Sulan and Anderson JJ agreed); R v BFG (2012) 114 SASR 170, [39]-[40] (Kourakis CJ). 82 Transcript of Summing Up, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 26 July 2021), 43-44. -- 28 of 121 -- [2023] SASCA 111 Livesey P 25 Under our law a person who is an accessory to a crime can be charged and convicted of that crime. A person is guilty of being an accessory before the fact where at some time before the offence of murder is actually carried out she intentionally counsels or procures or, in other words, intentionally encourages another to commit the offence. Therefore, there must be some act committed by the accessory that was intended to bring about the offence later committed by another. The act of an accessory consists of words or conduct of encouragement, including advising, urging or persuading another to commit the crime. In this case, the prosecution alleges, and must prove beyond reasonable doubt, that Tanya Hinrichsen intentionally provided encouragement to Gavin Skinner as proved in various text messages and statements to him, intending that Gavin Skinner would commit the offence of murder at a later time. You would come to consider Tanya Hinrichsen’s accessorial liability in circumstances where you were not satisfied that she was part of a plan with Gavin Skinner either to kill or cause grievous bodily harm to the deceased… 108 The trial judge then directed the jury that there were three elements which the prosecution must prove beyond reasonable doubt for the appellant to be found guilty of murder as an accessory:83 Firstly, that someone committed the offence of murder. The trial judge explained that in the particular circumstances of the case if the jury found Skinner not guilty of murder they could not find the appellant guilty of murder as an accessory before the fact. Secondly, that the appellant knew at the time of her encouragement of Skinner, all of the essential facts or circumstances which would make what was later done an offence of murder, namely the infliction of fatal injuries by another with an intention to kill or cause grievous bodily harm to the deceased. Thirdly, that the appellant intentionally counselled or procured, that is she intentionally encouraged Skinner to commit the offence of murder. The trial judge added: • The appellant’s intentional counselling, procuring or encouraging must be done before the offence of murder is actually carried out. • There must be some act committed by the accessory that was intended to bring about the offence later committed. • The act of an accessory consists of words or conduct of encouragement, including advising, urging or persuading another to commit the crime. • The prosecution must show that the appellant communicated or attempted to communicate that encouragement to Skinner. 83 Transcript of Summing Up, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 26 July 2021), 44. -- 29 of 121 -- [2023] SASCA 111 Livesey P 26 • The prosecution will not have proved this element merely by showing that the accused agreed with the commission of the offence. • The acts of encouragement by the appellant must be for Skinner to commit the murder alleged on 15 December 2018 and not some earlier event. 109 As for the evidence, the trial judge assisted the jury by reminding them about the three categories of evidence by which the prosecution intended to prove the case of accessorial liability against the appellant.84 As to the accessorial case against Tanya Hinrichsen, the prosecution relies on the following evidence to establish that she intentionally encouraged Gavin Skinner to murder the deceased knowing the essential fact involved in the commission of the offence of murder. First, the evidence of the deterioration of her marriage and her increasing desperation to be with Gavin Skinner and live with him. Secondly, Tanya Hinrichsen’s text messages to Gavin Skinner which on the prosecution case show her knowledge of Gavin Skinner’s plan to kill or inflict grievous bodily harm on the deceased, and the communication of her encouragement to do so. Thirdly, her statements after the assault on the deceased on 26 November 2018, captured in the audio recording P22. 110 The trial judge then addressed the defence contentions. The defence criticisms of the prosecution case were, her Honour explained, primarily aimed at the capacity of the evidence to support an inference that the appellant encouraged Skinner to commit murder. Associated with this was criticism of the capacity of the evidence to support any inference that the appellant contemplated that Skinner would commit murder. As to this, the trial judge directed the jury as follows:85 Members of the jury, I need to make something very clear to you. In respect of this alternative basis for murder, the acts of encouragement by Tanya Hinrichsen must be for Gavin Skinner to commit the alleged murder on 15 December 2018 and not some earlier event. Whilst her statements about earlier events might inform the meaning of a later communication to Gavin Skinner, you must find that her purported statements of encouragement to Gavin Skinner were to commit the alleged offence of murder on 15 December, rather than some earlier event, for this element of the offence to be proved. 111 The trial judge then addressed the evidence in the case at some length, repeatedly indicating the permissible uses of the evidence, as well as what was and was not admissible against each accused. 112 It is now convenient to address appeal ground 1. 84 Transcript of Summing Up, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 26 July 2021), 45. 85 Transcript of Summing Up, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 26 July 2021), 46. -- 30 of 121 -- [2023] SASCA 111 Livesey P 27 Appeal ground 1: accessory before the fact The contentions of the appellant 113 The appellant contends that the trial judge erred in six separate ways by failing to properly direct the jury concerning the requirements for proof of liability as an accessory before the fact. 114 The first criticism is that the jury should have been directed that the prosecution needed to prove in relation to each “piece of conduct on which it relied” that the appellant knew at the time of that conduct that Skinner was going to intentionally kill or inflict grievous bodily harm. Reliance is placed upon the decision of the New South Wales Court of Criminal Appeal in Blundell v The Queen.86 115 Second, it is submitted that the trial judge failed to direct the jury that the appellant would not be guilty of murder if at the time of her counselling or procuring she knew only that it was possible that Skinner intended to kill or inflict grievous bodily harm to the deceased. Again, reliance is placed on Blundell v The Queen.87 116 Third, it is submitted that the trial judge erred in failing to relate her directions to the facts of the case because the trial judge failed to link the appellant’s knowledge that Skinner was going to intentionally kill or inflict grievous bodily harm to a particular message sent by her. 117 Fourth, it is submitted that the trial judge erred by failing to direct the jury that the conduct by which the appellant was said to have counselled or procured Skinner to murder the deceased was objectively capable of counselling or procuring Skinner to do that. Reliance is placed upon the decision of R v BFG.88 118 Fifth, the appellant submitted that the trial judge erred in failing to specifically identify the conduct on which it might find that the appellant had intentionally counselled or procured Skinner to commit murder. Although the appellant acknowledged that the trial judge referred to three parts of the evidence, set out earlier, which included messaging between the appellant and Skinner, Exhibit P20 contained over 3,000 text messages between the appellant and Skinner between 1 November and 15 December 2018. 119 Sixthly and finally, the appellant submitted that the trial Judge erred in failing to direct the jury that it had to be proved that she had not withdrawn her encouragement and that her conduct was still capable of encouraging Skinner to commit murder at the time that the murder occurred. That is to say, the appellant 86 Blundell v The Queen (2019) 279 A Crim R 302, [207]-[209] (N Adams J, with whom Payne JA and Johnson J agreed). 87 Blundell v The Queen (2019) 279 A Crim R 302, [213]-[214] (N Adams J, with whom Payne JA and Johnson J agreed). 88 R v BFG (2012) 114 SASR 170, [30] (Kourakis CJ). See also Blundell v The Queen (2019) 279 A Crim R 302, [176]-[186] (N Adams J, with whom Payne JA and Johnson J agreed). -- 31 of 121 -- [2023] SASCA 111 Livesey P 28 submitted that it was necessary to direct the jury that the appellant’s conduct was not “spent” by the time the deceased was murdered.89 On this final part of the challenge to the directions of the trial judge, the appellant emphasised that what might suffice as a withdrawal would necessarily vary from case to case. Addressing the first five criticisms – accessorial liability 120 In South Australia the common law distinctions between principals, accessories before the fact, and principals in the second degree have been obviated by s 267 of the CLCA, eliminating the significance as to where assistance is given:90 A person who aids, abets, counsels or procures the commission of an offence is liable to be prosecuted and punished as a principal offender. 121 In this case it was common ground that, before the appellant could be convicted of counselling or procuring the murder of the deceased, it had to be proved that she intentionally counselled or procured the commission of murder, knowing the essential facts or circumstances which made what was done a crime.91 122 It was not necessary to prove that the appellant realised that those facts or circumstances comprised the particular crime.92 All that needed to be proved was that the encouragement was given knowing the essential facts which rendered what was done a crime, intending that it be committed. 123 A number of the criticisms made of the trial judge’s directions in this case proceeded on a misunderstanding of the ruling made by the High Court in Giorgianni v The Queen.93 It is accordingly necessary to address the High Court’s ruling in that case. 124 In Giorgianni v The Queen, the application for special leave to appeal concerned six charges of culpable driving, five causing death and one causing grievous bodily harm, after a heavily laden truck got out of control whilst descending a steep incline, colliding with other vehicles. The applicant was not present at the time of the collisions. He employed the driver. It was alleged that the applicant procured the driver to drive the truck in a defective condition. The brakes were later found to be dangerously defective, with the result that driving the truck in that condition involved driving in a manner dangerous to the public. 125 There were two questions of principle before the High Court. The first concerned whether the ordinary rules governing the liability of a secondary party, that is to say a person who has aided, abetted, counselled or procured the 89 Relying upon R v BFG (2012) 114 SASR 170, [35] (Kourakis CJ). 90 R v BFG (2012) 114 SASR 170, [13] (Kourakis CJ). 91 Giorgianni v The Queen (1985) 156 CLR 473, 505 (Wilson, Deane and Dawson JJ). 92 Giorgianni v The Queen (1984) 156 CLR 473, 506-507 (Wilson, Deane and Dawson JJ), “need not recognize the criminal offence as such, but … participation must be intentionally aimed at the acts which constitute it …”. 93 Giorgianni v The Queen (1985) 156 CLR 473. -- 32 of 121 -- [2023] SASCA 111 Livesey P 29 commission of a crime, were excluded under the applicable legislation. The Court found that they were not. 126 This appeal is concerned with the second question of principle, which was whether the accessory may be convicted if it has not been proved that the accessory knew all the circumstances which made what was done an offence. In that case, the trial judge had directed the jury that it was sufficient if the accessory had acted recklessly when he procured the use of the truck by his employee. In other words, rather than proving that the accessory knew that the brakes were defective and could fail and could constitute driving in a manner dangerous, the jury was directed that it was sufficient if the accessory acted recklessly in not caring whether those facts existed or not.94 127 In the course of his reasons, Gibbs CJ referred to the objective standard set by the relevant dangerous driving provision, which referred to driving “at a speed or in a manner dangerous to the public”. This, the former Chief Justice explained, referred to the behaviour of the driver rather than any given state of mind as an essential element of the offence.95 Nonetheless, the words “aid, abet, counsel or procure” indicated that a particular state of mind was essential before liability as an accessory could be established, even if the offence was one of strict liability. His Honour referred to the decision of Bright J in Lenzi v Miller,96 where his Honour had cited with approval the following passage from the decision of Judge Learned Hand in United States v Poeni:97 It will be observed that all these definitions have nothing whatever to do with the probability that the forbidden result would follow upon the accessory’s conduct; and [that] they all demand that he in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed. All the words used – even the most colourless ‘abet’ – carry an implication of purposive attitude towards it. 128 Chief Justice Gibbs agreed with the statement made by Cussen ACJ in R v Russell, regarding it as necessary for the accessory to be “linked in purpose with the person actually committing the crime”.98 Gibbs CJ also cited with approval the explanation of Lord Goddard CJ in Johnson v Youden:99 Before a person can be convicted of aiding and abetting the commission of an offence he must at least know the essential matters which constitute that offence. He need not actually know that an offence has been committed, because he may not know that the facts constitute an offence and ignorance of the law is not a defence. 129 Accordingly, in R v Robert Millar (Contractors) Ltd, it had been held that if a driver was sent out by his employer to drive a heavy vehicle with a dangerously 94 Giogianni v The Queen (1985) 156 CLR 473, 477, 479 (Gibbs CJ). 95 R v Coventry (1938) 59 CLR 633, 637-638. 96 Lenzi v Miller [1965] SASR 1, 15 (Bright J). 97 United States v Poeni (1938) 100 F (2d) 401, 402 (Judge Learned Hand), 98 R v Russell [1933] VLR 59, 67 (Cussen ACJ). 99 Johnson v Youden [1950] 1 KB 544, 546 (Lord Goddard CJ). -- 33 of 121 -- [2023] SASCA 111 Livesey P 30 defective front tyre and the employer knew that the tyre was dangerous, then an accident resulting from the tyre bursting would render the employer guilty of counselling and procuring death by dangerous driving.100 130 These authorities, concluded Gibbs CJ, demonstrated that the accused must be proved to both have knowledge of the essential circumstances as well as an intention to aid, abet, counsel or procure an offence before liability as an accessory could be established.101 Gibbs CJ held that recklessness and negligence were not sufficient. Those states of mind could not be equated to knowledge.102 131 Justice Mason took a similar approach.103 So did the plurality, Wilson, Deane and Dawson JJ.104 In the course of their reasons, the plurality criticised a decision on which the trial judge had relied, R v Glennan.105 It is not necessary to address all of the criticisms made.106 For present purposes, it is sufficient to address the following passage, intended to criticise that part of R v Glennan which had accepted that it was possible to aid, abet, counsel or procure by acting recklessly:107 Aiding, abetting, counselling or procuring the commission of an offence requires the intentional assistance or encouragement of the doing of those things which go to make up the offence. The necessary intent is absent if the person alleged to be a secondary participant lacks knowledge that the principal offender is doing something or is about to do something which amounts to an offence. 132 In developing this criticism, the plurality referred to another decision of Lord Goddard CJ, Thomas v Lindop, in which his Lordship had explained:108 More than once this Court has pointed out that it is impossible to convict persons of aiding and abetting the commission of an offence unless they know the facts which must be proved to show that an offence has been committed … 133 Their Honours left to one side those cases to the effect that the requisite knowledge of the accessory need not extend to the precise crime committed, though some crime was in contemplation. In those cases, knowledge of a “general criminal purpose” had been held to be insufficient. The plurality summarised their ruling in these terms:109 The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make 100 R v Robert Millar (Contractors) Ltd [1970] 2 QB 54, 72. 101 Giorgianni v The Queen (1985) 156 CLR 473, 482 (Gibbs CJ), citing National Coal Board v Gamble [1959] 1 QB 11, 20. 102 Giorgianni v The Queen (1985) 156 CLR 473, 483-487 (Gibbs CJ). 103 Giorgianni v The Queen (1985) 156 CLR 473, 490-492, 495 (Mason J), “knowledge of all the facts giving rise to the dangerous driving”. 104 Giorgianni v The Queen (1985) 156 CLR 473, 500, 501, 507 (Wilson, Deane and Dawson JJ). 105 R v Glennan (1970) 91 WN (NSW) 609, 614. 106 Giorgianni v The Queen (1985) 156 CLR 473, 504 ff (Wilson, Deane and Dawson JJ). 107 Giorgianni v The Queen (1985) 156 CLR 473, 505 (Wilson, Deane and Dawson JJ). 108 Giorgianni v The Queen (1985) 156 CLR 473, 505 (Wilson, Deane and Dawson JJ), citing Thomas v Lindop [1951] All ER 966, 968. 109 Giorgianni v The Queen (1985) 156 CLR 473, 506 (Wilson, Deane and Dawson JJ). -- 34 of 121 -- [2023] SASCA 111 Livesey P 31 up the facts which constitute the commission of the relevant criminal offence. He need not recognize the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it. 134 With these observations in mind, it is now convenient to address the first five of the appellant’s criticisms of the summing up under appeal ground 1. The first criticism 135 On the first criticism, the appellant contended that the trial judge erred in law by failing to direct the jury, “for each piece of her conduct on which the prosecution relied as having counselled or procured Skinner to murder the deceased”, that they had to be satisfied beyond reasonable doubt that the appellant knew Skinner would or “was going to … intentionally kill” the deceased or inflict grievous bodily harm. That is to say, the jury had to be satisfied that the appellant knew at the time of her conduct that Skinner was going to kill or inflict grievous bodily harm. 136 The direction which is criticised was given in the following terms:110 Secondly, the prosecution must prove that the accused knew, at the time of her encouragement of Gavin Skinner, of the essential facts or circumstances which would make what was later done a crime. So the prosecution must prove that Tanya Hinrichsen at the time of her encouragement of Gavin Skinner knew the essential facts involved in the commission of murder; namely, the infliction of fatal injuries by another with an intention to kill or cause grievous bodily harm to the deceased. 137 By this point, the trial judge had already identified that it was necessary to identify some act of encouragement, whether by way of words or conduct, by which the appellant intended to bring about the offence later committed. In context then, the impugned direction must be seen as demonstrating that the appellant’s knowledge must coincide in time with her act of encouragement to Skinner to commit the crime of murder. 138 The appellant relied on passages from Blundell v The Queen,111 in which the Court referred to Giorgianni and said: The High Court held in Giorgianni that the relevant knowledge to be proved beyond reasonable doubt is that the accessory before the fact knew that the principal was “doing something or is about to do something”. The closest the trial judge came to giving this direction was where his Honour directed the jury that “[t]he necessary intent or state of mind is absent if the accused lacked the knowledge that Owen Fuller was going to do something which amounts to assault to inflict really serious bodily injury upon Mr Power”. This direction was not repeated nor did it form part of the written direction. As this Court held in Hadchiti v The Queen (2016) 93 NSWLR 671 at [70], written directions are likely 110 Transcript of Summing Up, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 26 July 2021), 44. 111 Blundell v The Queen (2019) 279 A Crim R 302, [207], [209] (N Adams J, with whom Payne JA and Johnson J agreed). -- 35 of 121 -- [2023] SASCA 111 Livesey P 32 to “decisively frame the jurors’ deliberations, as opposed to the jurors’ recollections of a lengthy oral address”. … There was no reference in any of the exchanges between the appellant and Mr Fuller as to when or how any assault would take place and most of the exchanges are suggestive of the assault taking place when both of Mr Fuller and the appellant were present. In the context of the evidence at trial, I am satisfied that it was not sufficient that the jury only be told that they needed to be satisfied beyond reasonable doubt that the appellant knew “all the essential facts and circumstances necessary to show that Mr Fuller intended to assault and inflict upon the victim grievous bodily harm”. The jury ought to have been fully directed, consistent with Giorgianni (as applied in Phan), that the Crown needed to establish beyond reasonable doubt that the appellant knew that Mr Fuller was going to intentionally inflict grievous bodily harm on the deceased. 139 There are two aspects to these passages of present relevance. The first concerns whether it is necessary to prove that the accessory knew, rather than was reckless about whether, the principal would commit the offence. That will be addressed as part of the second criticism. The second aspect of this passage concerns what it was that the accessory knew the principal would do, being “when or how any assault would take place”. 140 Respectfully, when the plurality in Giorgianni referred to the accessory knowing that the principal was “doing something or is about to do something”,112 they were referring to the facts the accessory must know at the time of giving assistance, and that those facts must amount to a crime. In that case the requisite knowledge comprised knowledge (and not merely recklessness) about the defective condition of the truck, combined with the intention that the heavily laden truck would be driven. That is, proof that the accessory knew that whilst the heavily laden and defective truck was driven by the employee, the defective brakes were at risk of failing. Knowledge of these facts would constitute driving in a manner dangerous (even if the accessory did not know that this amounted to an offence). The accessory could never know for certain whether the brakes would fail or exactly how the truck would be driven. 141 There is a danger in taking passages from cases like Blundell v The Queen out of the context in which they were made, which includes the particular facts and directions under consideration in that case. The Court in that case was concerned to apply Giorgianni, as must this Court. The appellant’s contention is answered by Giorgianni. It will be necessary to return to the appellant’s reliance on Blundell v The Queen. 142 The appellant invited a comparison between the directions given in this case and the directions approved in Likiadopoulos v R.113 In that case, one of murder, the directions were regarded by the Court of Appeal as according with the Bench Notes and Charge contained in the Victorian Criminal Charge Book. The second 112 Giorgianni v The Queen (1985) 156 CLR 473, 505 (Wilson, Deane and Dawson JJ). 113 Likiadopoulos v R (2010) 30 VR 654, [76]-[77] (Buchanan, Ashley and Tate JJA). -- 36 of 121 -- [2023] SASCA 111 Livesey P 33 element concerning accessorial liability was addressed by the trial judge in that case in the following way:114 The second element which the Crown must prove is that the accused knew all of the essential circumstances needed to establish the offence of murder, or believed that those essential circumstances existed. The essential circumstances that are needed to establish murder are: that the principal offender or offenders, being the persons who committed the acts or acts on [the deceased], had at least the intention to really seriously injure him and, as I said, they performed those acts consciously, voluntarily and deliberately, and without lawful justification or excuse. 143 It is difficult to see any material difference between that direction and the directions in this case. In each case the direction was given in a manner consistent with the decision of the High Court in Giorgianni. 144 Indeed, when one looks at the elements identified by the trial judge, supported as they were by an aide memoire, and the identification of both the evidence and the purported encouragement relied on, the trial judge clearly directed the jury to determine whether the appellant encouraged Skinner to commit the offence of murder which was committed on 15 December rather than some other crime. 145 Having regard to the impugned direction and the directions earlier set out in these reasons, it is difficult to see how there arises any perceptible risk that the jury were left in doubt that, before they could convict the appellant as an accessory, the acts of encouragement had to be acts committed by her, intending at the time of those acts to encourage Skinner to commit the murder which he later committed, at a time when she knew the essential facts or circumstances which made what Skinner did, the crime of murder. 146 This criticism should be rejected. The second criticism 147 As for the second criticism, the appellant submitted that the jury should have been directed that it was not sufficient if she only knew that Skinner may possibly kill or cause grievous bodily harm, as opposed to knowing that he was going to commit murder. The appellant submitted that the evidence left open the possibility that the appellant was reckless as to what Skinner might do, and recklessness was not sufficient for guilt. 148 These submissions must be rejected, for it was not necessary to prove that the appellant knew that the offence would be committed, as the ruling in Giorgianni only required that the accessory intend that the crime be committed. 149 As has been recognised, the accessory to a crime may never know “in an absolute sense” whether what has been encouraged will in fact eventuate, because 114 Likiadopoulos v R (2010) 30 VR 654, [76]-[77] (Buchanan, Ashley and Tate JJA). -- 37 of 121 -- [2023] SASCA 111 Livesey P 34 it is always possible that the principal will “change his mind or be unable for some reason to carry out” his intention.115 In this kind of case it is sufficient for the purposes of criminal liability that the accessory intended that the crime be committed and that, ultimately, the crime was committed by the principal. As Kourakis CJ later explained in R v BFG, it is sufficient that the accessory intends to facilitate conduct that in the circumstances known constitutes, or if engaged in the future will constitute, an offence.116 150 The appellant relied on the following passages from Blundell v The Queen where it was said:117 The High Court in Giorgianni clearly stated that recklessness is an insufficient state of knowledge to implicate an accessory before the fact. As the extracts above show, the Crown case in this matter relied upon non-specific, generalised talk over a period of time about wanting to assault the deceased. The high point of such assault rising to the level of intentional infliction of grievous bodily harm, was the combination of the appellant suggesting to Mr Fuller that if he saw the deceased he should “jump on his head” and the appellant’s earlier reference to chopping (presumably “off”) the deceased’s index finger. After these discussions in which it was suggested that the two men would assault the deceased together, Mr Fuller beat the deceased to death with a tomahawk 24 hours later on his own. This evidence relied upon by the Crown left open the question of whether the appellant was simply reckless as to what Mr Fuller might do. On the facts in this case, I am satisfied that a recklessness direction ought to have been given … 151 As earlier mentioned, various passages including these from Blundell v The Queen are founded on the reasons of the High Court plurality in Giorgianni as follows:118 The third question raised by the passage which we have cited from Reg v Glennan is whether it is possible to aid, abet, counsel or procure the commission of an offence by acting recklessly. Aiding, abetting, counselling or procuring the commission of an offence requires the intentional assistance or encouragement of the doing of those things which go to make up the offence. The necessary intent is absent if the person alleged to be a secondary participant lacks knowledge that the principal offender is doing something or is about to do something which amounts to an offence. 152 Properly understood, this passage says nothing about proof of knowledge as to exactly when or precisely how the principal is going to offend. It is concerned only with the accessory’s knowledge of the essential facts which amount to a crime at the time of encouragement. That is a different issue to the one raised by the appellant. 153 The plurality in Giorgianni went on to emphasise the passages from the decisions of Lord Goddard CJ in Johnson v Youden and Thomas v Lindop, set out 115 R v Rich and Hynes (1997) 93 A Crim R 483, 497 (Cox J). 116 R v B, FG (2012) 114 SASR 170, [27] (Kourakis CJ). 117 Blundell v The Queen (2019) 279 A Crim R 302, [213]-[214] (N Adams J, with whom Payne JA and Johnson J agreed). 118 Giorgianni v The Queen (1985) 156 CLR 473, 505 (Wilson, Deane and Dawson JJ). -- 38 of 121 -- [2023] SASCA 111 Livesey P 35 earlier, in which his Lordship emphasised the necessity to show that the accessory knew the facts which must be proved to show that an offence has been committed (as distinct from whether the accessory knew that those facts comprised an offence “because he cannot plead ignorance of the law”). The plurality then said:119 There are, of course, those cases which hold that the requisite knowledge need not extend to the precise crime which is in fact committed, although some crime must be in contemplation at the time secondary participation is alleged to occur, a general criminal purpose being insufficient. See R. v. Lomas (1913) 9 Cr App R 220; Reg. v. Bullock (1955) 1 WLR 1; (1955) 1 All ER 15; R v. Bainbridge (1960) 1 KB 129; Reg. v. Maxwell. The questions which these cases raise do not arise in this case and it is unnecessary to do more than refer to them. 154 Later, the plurality in Giorgianni explained that the accessory must know or believe that what is assisted or encouraged is something which goes to make up the facts which constitute the commission of the relevant criminal offence:120 The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence. He need not recognize the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it. It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which he is assisting or encouraging are such, whether he realizes it or not, as to constitute the factual ingredients of a crime. If that were sufficient, a person might be guilty of aiding, abetting, counselling or procuring the commission of an offence which formed no part of his design. Intent is required and it is an intent which must be based upon knowledge or belief of the necessary facts. To the extent that Reg. v. Glennan suggests the contrary, it is not, in our view, in accordance with principle and does not correctly state the law. 155 The accessory must know the facts which constitute the commission of the relevant criminal offence. That is, the accessory must know the principal’s acts which are assisted or encouraged which constitute “the factual ingredients of a crime”. It was sufficient if the accessory knew the principal intended to commit the acts constituting the crime.121 156 Giorgianni shows that it was not necessary to prove that the appellant knew that the deceased would be murdered, or exactly when or how Skinner might do so. It was sufficient if the accessory’s participation was intentionally directed to the commission by the principal of those acts or conduct which comprised the crime of murder, for the accessory would then be “linked in purpose with the person actually committing the crime”.122 157 This criticism is answered by the ruling in Giorgianni and should be rejected. 119 Giorgianni v The Queen (1985) 156 CLR 473, 505-506 (Wilson, Deane and Dawson JJ). 120 Giorgianni v The Queen (1985) 156 CLR 473, 506-507 (Wilson, Deane and Dawson JJ). 121 R v Rich and Hynes (1997) 93 A Crim R 483, 520-521 (Bleby J with whom Williams J agreed). 122 R v Russell [1933] VLR 59, 67 (Cussen ACJ). -- 39 of 121 -- [2023] SASCA 111 Livesey P 36 The third criticism 158 As for the third criticism, the suggested failure of the trial judge to relate her directions on law to the evidence, that has already been addressed in connection with the first criticism. 159 The trial judge was not required to follow any set formula or pattern in her summing up. It is clear that her Honour went through the evidence in some detail, emphasising the key messages relied upon by the prosecution to demonstrate encouragement as well as the requisite knowledge and intention. 160 When the summing up is viewed as a whole, the jury could have been in no doubt that it could only convict the appellant if her words or acts of encouragement, as found, related to the murder of the appellant’s husband by Skinner and that it was necessary that it be proved that those acts of encouragement were performed intending that Skinner would kill or cause grievous bodily harm. 161 This complaint must be rejected. The fourth criticism 162 The fourth criticism is that, objectively, some form of causal connection between the accessory’s encouragement and the principal’s offending is necessary. Particularly, that the appellant’s conduct in counselling or procuring Skinner to murder the deceased was capable of having that effect. 163 A related proposition was rejected by the Court of Appeal in Likiadopoulos.123 In that appeal, counsel for the convicted accessory relied upon the view of Professor Sir John Smith in Reshaping the Criminal Law: Essays in Honour of Glanville Williams,124 to the effect that “procuring” requires proof of causation, by contrast with “counselling”. In that appeal the Crown countered that this view did not represent the law in Australia:125 Counsel for the Crown submitted that Sir John Smith’s essay, in which the author differentiated between the concepts of ‘abet’ and ‘counsel’ on the one hand, and ‘procure’ on the other, did not represent the law in this country. He referred to R v Russell,126 R v Wong & Ors127 and Giorgianni v The Queen.128 He cited also R v Lam,129 and referred to Archbold’s Criminal Pleading Evidence and Practice,130 and Smith and Hogan, Criminal Law.131 164 The Court of Appeal rejected the complaint, though it did not accept that all the authorities relied on by the Crown supported its submission. The Court 123 Likiadopoulos v R (2010) 30 VR 654, [103]-[112] (Buchanan, Ashley and Tate JJA). 124 Reshaping the Criminal Law: Essays in Honour of Glanville Williams (London: Steven & Sons, 1978). 125 Likiadopoulos v R (2010) 30 VR 654, [104] (Buchanan, Ashley and Tate JJA). 126 [1933] VLR 59, 77 (Cussen ACJ). 127 (2005) 202 FLR 1 (Kellam J). 128 (1985) 156 CLR 473, 493 (Mason J). 129 (2005) 159 A Crim R 448, 472 [76], and on appeal, (2008) 185 A Crim R 453, 477 [89]. 130 (2010), [18-20] – [18-24]. 131 12th ed, (2008), pp 202 and following. -- 40 of 121 -- [2023] SASCA 111 Livesey P 37 emphasised that the words “aid, abet, counsel or procure” conveyed a single, composite concept, as recognised by the High Court in Giorgianni, and did not require proof of any causal effect on the principal. 165 The Court followed R v Lam, where Redlich J132 and the Court of Appeal133 had earlier held that it was unnecessary for the prosecution to prove that the act or acts there relied upon to establish aiding and abetting in fact assisted or encouraged the principal in the first degree to commit the offence.134 Likewise, it was not necessary to prove that the principal committed the crime because of the encouragement given by the accessory.135 166 In R v BFG, in the course of dismissing applications for permission to appeal, the Chief Justice referred to conflicting authority on “the causal relationship between the accomplice’s conduct and the commission of the offence necessary to establish accessorial liability”. 136 As his Honour explained the issue:137 There is inconsistent authority on the casual relationship between the accomplice’s conduct and the commission of the offence that is necessary to establish accessorial liability.138 Leaving aside cases in which procurement is alleged, it appears to be sufficient to show that the conduct was calculated, in an objective sense, to promote the commission of the offence. It is unnecessary to enquire into the extent, if any, that the principal was subjectively influenced by the conduct.139 167 These observations were made by way of obiter dicta. The reference in R v BFG to leaving aside “procurement” is a reference to the view of Professor Smith. It will be recalled that it was on his view that the unsuccessful appellant relied in Likiadopoulos:140 In his essay in Reshaping the Criminal Law, referring to the words ‘aid’, ‘abet’, ‘counsel’ and ‘procure’, Sir John Smith stated, having referred to the ordinary meaning(s) of those words - So defined, the meanings overlap and there seems to be little distinction between ‘abet’ and ‘counsel.’ ‘Procure’ stands apart in that it requires a causal connection. One may give help, support or assistance, or incite, instigate, encourage or advise without producing any result. A person advised to commit a crime has been none the less ‘counselled’ (in the ordinary use of the word) to do it because he rejects the proffered advice. The use of ‘procure’, however, seems inapt unless the result is 132 R v Lam (2005) 159 A Crim R 448, [77]–[78] (Redlich J). 133 R v Lam (2008) 185 A Crim R 453, 477 [89]. 134 Which was not to say that encouragement, as distinct from assistance, could be unknown to the principal. 135 Likiardopoulos v R (2010) 30 VR 654, [106]-[113] (Buchanan, Ashley and Tate JJA). 136 R v BFG (2012) 114 SASR 170, [30] (Kourakis CJ). 137 R v BFG (2012) 114 SASR 170, [30] (Kourakis CJ). 138 See generally K J M Smith, ‘Complicity and Causation’ (1986) Criminal Law Review 663; White v Ridley (1978) 140 CLR 342 at 351 [10]–[12] per Gibbs J, at 353–354 [4]–[6] per Stephen J; Lenzi v Miller [1965] SASR 1 at 14 per Bright J; Attorney Generals reference (No. 1 of 1975) [1975] QB 773 at 780 per Widgery CJ; Attorney General v Able [1984] 1 QB 795 at 812 per Woolf J; Howell v Doyle [1952] VLR 128 at 134 per Herring CJ. K J M Smith, A Modern Treatise on the Law of Criminal Complicity (Clarendon Press, 1991) 78–93. 139 R v Ready [1942] VLR 85 at 88–89 per Mann CJ on behalf of The Court. 140 Likiadopoulos v R (2010) 30 VR 654, [106] (Buchanan, Ashley and Tate JJA). -- 41 of 121 -- [2023] SASCA 111 Livesey P 38 actually brought about. This was accepted in Attorney-General’s Reference where the court said ‘You cannot procure an offence unless there is a causal link between what you do and the commission of the offence.’ 168 The view of Professor Smith is that only the word “procure” suggests a causal link. None of the other words in the phrase “aids, abets, counsels or procures the commission of an offence” in s 267 of the CLCA suggest a causal link. And, as the Court of Appeal explained in Likiadopoulos, 141 the view of Professor Smith is out of step with the approach taken by Cussen ACJ in R v Russell.142 It is also difficult to reconcile it with the approach of the High Court in Giorgianni, where it was accepted that the ordinary meanings of these words overlap and are generally to be determined by reference to the common law.143 169 Apart from Professor Smith’s work, the authorities to which reference was made in R v BFG are either English or they were decided in Australia before Giorgianni, and certainly before Lam and Likiadopoulos. The ruling of the High Court in Giorgianni must be followed, and the Victorian authorities should be followed on this point. No causal relationship is required to be proved between the accessory’s encouragement and the principal’s commission of the crime. 170 The appellant also relied on observations made in Blundell v The Queen to the effect that the accessory’s encouragement had to be “capable” of encouraging the principal.144 The observations on which the appellant relied were generally to the effect that the prosecution need not prove that the accessory’s encouragement in fact encouraged the principal, relying on the Victorian authorities of Lam and Likiadopoulos to which reference has been made.145 In the course of addressing this issue, the Court referred to its earlier decision in Phan,146 and particularly the requirement that the “accessory do an act capable of encouraging or assisting accompanied by an intention to encourage or assist”.147 When read in context, the use of the word “capable” says nothing about the capacity of the accessory’s conduct to in fact encourage the principal. That would undercut the rejection of any requirement that there be a causal link between the accessory’s encouragement and the principal’s commission of the crime. What is meant by the use of the word “capable” in this context is that it be proved that the conduct of the accessory could 141 Likiadopoulos v R (2010) 30 VR 654, [107]-[112] (Buchanan, Ashley and Tate JJA). 142 R v Russell [1933] VLR 59, 66-67 (Cussen ACJ), although “procurement” was not mentioned. Referred to with approval by Mason J in Giorgianni v The Queen (1985) 156 CLR 473, 492-493; by Redlich J in R v Lam (2005) 159 A Crim R 448, [19]; and by the Court of Appeal in Likiardopoulos v R (2010) 30 VR 654, [107]-[108] (Buchanan, Ashley and Tate JJA). 143 Giorgianni v The Queen (1985) 156 CLR 473, 480 (Gibbs CJ), 490, 492-493 (Mason J). 144 Blundell v The Queen (2019) 279 A Crim R 302, [176], [186] and [186] (N Adams J, with whom Payne JA and Johnson J agreed). 145 Blundell v The Queen (2019) 279 A Crim R 302, [171]-[186] (N Adams J, with whom Payne JA and Johnson J agreed). 146 Blundell v The Queen (2019) 279 A Crim R 302, [172]-[176] (N Adams J, with whom Payne JA and Johnson J agreed); R v Phan (2001) 53 NSWLR 480. 147 Blundell v The Queen (2019) 279 A Crim R 302, [176] (N Adams J, with whom Payne JA and Johnson J agreed); R v Phan (2001) 53 NSWLR 480, [115] (Smart AJ), original emphasis. -- 42 of 121 -- [2023] SASCA 111 Livesey P 39 properly be regarded as encouragement. It is in that sense that it is said that the conduct must be capable of being regarded as encouragement. 171 The problem emerges most clearly in cases where the accessory attends at the scene of the crime but may otherwise be inactive and silent whilst the principal commits the crime. That is demonstrated by two of the authorities relied on in Blundell v The Queen. The first has already been mentioned. In Phan, Wood CJ in CL, with whose reasons McClennan J and Smart AJ agreed, explained what he meant by using the word “capable” in the following passage:148 In R v Clarkson [1971] 1 WLR 1402 at 1405; [1971] 3 All ER 344 at 347, where Megaw LJ similarly pointed out that “non-accidental presence at the scene of the crime is not conclusive of aiding and abetting”: see also R v Roughley (1995) 78 A Crim R 160 at 162, per Cox J. It is true that in R v Russell [1933] VLR 59, Cussen A-CJ observed (at 66): “I am of opinion (1) that if a person present at the commission of a crime in the opinion of the jury on sufficient evidence shows his assent to such commission, he is guilty as principal, and (2) that assent may in some cases be properly found by the jury to be shown by the absence of dissent, or in the absence of what may be called effective dissent.” and, (at 68): “Silence in some circumstances amounts to acquiescence and gives consent.” These observations were, however, made in the context of the particular facts of the case in which the accused was charged as a principal in the second degree when he refrained from intervening while his wife drowned herself and her children. In the light of the special relationship which existed between them, his acquiescence or silence was properly capable of being understood as encouragement. That there is no general principle by which assent or acquiescence, without more, will give rise to liability … (Emphasis added.) 172 The second authority relied on in Blundell v The Queen was Lam, also mentioned earlier.149 In that case Redlich J was also concerned to address whether the conduct of the accessory could properly be viewed as encouragement:150 In answer to the question whether the prosecution must establish that the principal in the first degree was aware of the acts said to constitute aiding and abetting, a distinction must be drawn between acts of assistance and acts of encouragement. The primary offender need not be aware of acts of assistance performed by the principal in the second degree with the requisite knowledge and intention. Acts of encouragement must be viewed differently. For 148 R v Phan (2001) 53 NSWLR 480, [73]-[76] (Wood CJ in CL, with whom McClennan J and Smart AJ agreed). 149 R v Lam (2005) 159 A Crim R 448 (Redlich J), upheld on appeal, R v Lam (2008) 185 A Crim R 453, [89]. 150 R v Lam (2005) 159 A Crim R 448, [76]-[77] (Redlich J) -- 43 of 121 -- [2023] SASCA 111 Livesey P 40 the words or conduct of an accused person to have the capacity to encourage the perpetrator of the crime, the words must be spoken and the conduct take place in the presence of the primary offender. The prosecution must establish that the secondary participant conveyed or communicated to the principal offender his encouragement by words or by his presence and behaviour that the offence should be committed. The prosecution need not establish that the principal in the first degree was aware of the words or acts of encouragement so long as they were communicated or conveyed with the necessary intention by the secondary participant and in circumstances where the principal offender could be aware of them. The prosecution is not required to establish that the acts said to constitute aiding and abetting in fact assisted or encouraged the principal in the first degree. The suggestion in some of the authorities to which I have referred that it must be established that the principal in the first degree was in fact assisted or encouraged do not in my respectful opinion accord with principle or those authorities which I regard as persuasive and plainly correct. Such a direction to a jury would be too favourable. It would impose an impossible burden upon the prosecution, who would rarely be in a position to place evidence before a jury as to the effect of the secondary participant’s conduct on the principal offender’s state of mind. (Emphasis added.) 173 These passages show that the accessory’s words or acts of encouragement must be made in the presence of the principal or communicated in a way that the principal could be aware of them. They also show that the principal need not be proved to know of them or actually be encouraged by the accessory, and that it does not assist the accessory to show that the principal would have committed the crime regardless of any encouragement from the accessory. 174 Properly viewed, Blundell v The Queen is not authority for the proposition that the accessory’s encouragement must be objectively capable of counselling or procuring the crime. That is different to proving that the principal could be aware of the encouragement. The appellant cited no authority which is binding on this Court that requires that an accessory’s encouragement be objectively capable of counselling or procuring the principal’s commission of the crime. 175 In any event, it ought not be overlooked that the appellant’s contention ignored that the observation made in R v BFG excluded “procurement”. The contention otherwise relied on the reference made “to conduct … calculated, in an objective sense, to promote the commission of the offence”.151 The use of the word “calculated” here is probably to be regarded as a reference to intention. If so it is, respectfully, difficult to see how the use of the word “objectively” adds to the analysis of the accessory’s intention. 176 The prosecution was required to prove that the accessory’s acts of encouragement communicated to or in the presence of the principal were intended by the accessory to promote the commission of an offence about which the accessory knew the essential facts. That is, to prove voluntary and intended acts of encouragement coupled with knowledge that what was encouraged, if 151 R v BFG (2012) 114 SASR 170, [30] (Kourakis CJ). -- 44 of 121 -- [2023] SASCA 111 Livesey P 41 performed, amounted to a crime by the principal (even if, which is not relevant to this case, the accessory did not recognise that the principal’s acts amounted to a crime). It was not necessary for the prosecution to establish that what the accessory encouraged or procured was objectively capable of causing the principal to commit the crime.152 This criticism should be rejected. The fifth criticism 177 The fifth criticism is similar to the third, for it is submitted that the trial judge failed to specify for the benefit of the jury the conduct of the appellant when deciding if the appellant intentionally counselled or procured Skinner to murder her husband. 178 The appellant submits that the jury was simply told in general terms about three parts of the evidence relied on, including the appellant’s text messages. The appellant points out that Exhibit P20 alone contained over 3,000 text messages between the appellant and Skinner between 1 November and 15 December 2018. It is said that the specific text messages which were relied on by the prosecution should have been identified. 179 The answers given to the first and third criticisms assist with the answer to this criticism. The relevant portions of the summing up have already been set out. The trial judge assisted the jury by reminding them how the case of accessorial liability against the appellant was to be proved by the prosecution.153 In addition, the trial judge addressed each of the three categories she referred to separately, and in some detail. In so far as is relevant to this complaint, the summing up can be seen to be structured as follows: 1. The judge gave directions that the jury were the judges of the facts,154 as to assessing witnesses,155 considering motive,156 and drawing inferences.157 2. The judge referred to the three categories separately, and in detail: • The evidence of the deterioration of the appellant’s marriage and her increasing desperation to be with Skinner.158 152 Cf, R v BFG (2012) 114 SASR 170, [30] (Kourakis CJ). 153 Transcript of Summing Up, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 26 July 2021), 45-46. 154 Transcript of Summing Up, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 26 July 2021), 1-2. 155 Transcript of Summing Up, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 26 July 2021), 4-5. 156 Transcript of Summing Up, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 26 July 2021), 10-12AB 78-80. 157 Transcript of Summing Up, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 26 July 2021), 13-14. 158 Transcript of Summing Up, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 26 July 2021), 51-60, 71-74. -- 45 of 121 -- [2023] SASCA 111 Livesey P 42 • The appellant’s text messages to Skinner which on the prosecution case showed her knowledge of Skinner’s plan to kill or inflict grievous bodily harm on the deceased.159 • The appellant’s statements after the assault on the deceased on 26 November 2018, captured on the audio recording P22.160 3. The defence case was summarised.161 180 When the summing up is taken as a whole, the jury was ably assisted in its fact-finding, both as to the evidence relevant to determining accessorial liability and the appellant’s case in response. This criticism should be rejected. The sixth criticism: withdrawal or whether encouragement was “spent” 181 Finally, as for the sixth criticism, the question of withdrawal of encouragement, or alternatively whether the appellant’s encouragement was “spent”, one must keep in mind that the trial judge’s obligation was to direct the jury about the real issues in the case having regard to the conduct of the trial. 182 It may be accepted that an accused cannot be convicted as an accessory to murder if, before it is committed, the accused withdraws and countermands encouragement. A mere change of mind or motive is not sufficient. The putative accessory must effectively communicate and nullify the encouragement earlier given. That requires an evaluation of what was reasonable and practicable in the circumstances.162 Whilst withdrawal might be demonstrated without communication, such as where the encouragement is “spent”, the law usually looks to subsequent conduct that effectively nullifies the earlier encouragement, regarding it as a supervening event.163 183 There has been some debate about the necessity to demonstrate whether the withdrawal and nullification had a causal effect on the principal, even though causation is not relevant to proof of accessorial liability.164 184 It seems clear that what is required, what is reasonable and practicable, may vary. The more encouragement or assistance given, the more required to countermand that encouragement or assistance. Though withdrawal is not strictly 159 Transcript of Summing Up, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 26 July 2021), 75-76. 160 Transcript of Summing Up, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 26 July 2021), 62-68. 161 Transcript of Summing Up, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 26 July 2021), 171-174. 162 White v Ridley (1978) 140 CLR 342, 351 (Gibbs J); R v Sully (2012) 112 SASR 157, [53]-[54], [75] (Vanstone J, with whom Sulan and Anderson JJ agreed); R v BFG (2012) 114 SASR 170, [39]-[40] (Kourakis CJ). 163 R v Sully (2012) 112 SASR 157, [75] (Vanstone J, with whom Sulan and Anderson JJ agreed); R v BFG (2012) 114 SASR 170, [31]-[36], [39]-[40] (Kourakis CJ). 164 White v Ridley (1978) 140 CLR 342, 351 (Gibbs J); R v Sully (2012) 112 SASR 157, [75] (Vanstone J, with whom Sulan and Anderson JJ agreed); R v BFG (2012) 114 SASR 170, [40] (Kourakis CJ). -- 46 of 121 -- [2023] SASCA 111 Livesey P 43 a defence, it has been accepted that where the accused meets an evidential onus it is for the prosecution to prove that the accused’s encouragement was not countermanded or otherwise nullified.165 185 It is helpful to illustrate what is required for effective withdrawal. In R v Croft the appellant was convicted of murder having encouraged a woman to take her own life pursuant to a suicide pact.166 The appellant contended that after the first shot, the wounded woman asked him to go for help, and he was moving to do that when she shot herself a second time. The English Court of Criminal Appeal held that there was no error in not leaving the question of withdrawal to the jury:167 We are of opinion that the circumstances in this case did not amount, and could not reasonably have been held to amount, to such a clear countermanding or determination of the agreement as would discharge the appellant from liability to a charge of murder if that which occurred was the result of what he had done before. He never said anything to the woman which could have removed from her mind the effect of the counsel which he had previously given her. 186 After describing this case as “important”, in R v Sully Vanstone J (with whom Sulan and Anderson JJ agreed) explained:168 Writing in 1961, Professor Glanville Williams, Criminal Law: The General Part (Stevens & Sons, 2nd ed, 1961), 384, having referred to Croft, said that to demand express withdrawal might be “in some cases too stringent”. He said that in some circumstances withdrawal could be implied from conduct. He also observed that the question of withdrawal should be approached by asking whether the “authorisation” had been withdrawn, rather than asking whether the accessory had influenced the principal’s mind. In R v Becerra (1975) 62 Cr App R 212 the court approved of the requirement in Croft for express and actual countermand or revocation of the advising, counselling, procuring or abetting (at 219). There, three men had formed an agreement to break into a house. It was agreed that a knife would be taken in case they should be surprised. Becerra handed the knife to one of the others, Cooper, as they entered the house. When an occupant interrupted them he was stabbed to death by Cooper. Becerra argued that he was not liable because just before the killing he had said to Cooper “let’s go” and had jumped out of the house through a window. 187 In R v Becerra, the Court said that in order to be effective to countermand his earlier involvement, the appellant had to point to conduct “vastly different and vastly more effective”. Having carefully reviewed the authorities, Vanstone J concluded in R v Sully:169 What will suffice in terms of withdrawal from a joint enterprise or from a situation which a defendant has counselled and procured or aided and abetted a crime will vary markedly from case to case. It will involve an assessment of what was reasonable and practical in the circumstances. The more the defendant has done by way of planning or providing 165 R v BFG (2012) 114 SASR 170, [40] (Kourakis CJ). 166 R v Croft [1944] 1 KB 295. 167 R v Croft [1944] 1 KB 295, 298. 168 R v Sully (2012) 112 SASR 157, [49]-[50] (Vanstone J, with whom Sulan and Anderson JJ agreed) 169 R v Sully (2012) 112 SASR 178, [75] (Vanstone J, with whom Sulan and Anderson JJ agreed). -- 47 of 121 -- [2023] SASCA 111 Livesey P 44 information or items to enable completion of the crime, the more is likely to be required of him by way of withdrawal or countermand, if he is to avoid criminal responsibility. In some cases, particularly where the participation or aiding and abetting is spontaneous, withdrawal by leaving the scene, especially when coupled with advice or other indication to those who remain of the abandonment, or with the effluxion of time, might be sufficient. However, with respect to those who have expressed a contrary view, I do not agree that there is any distinction in point of principle between cases where there is a pre-existing agreement to commit the crime in cases of spontaneous participation, such as by aiding and abetting. It is a matter of fact and degree. Therefore I do not consider that Mitchell and King and O’Flaherty should be followed in this Court. Also, while there might seem to be a degree of incongruence in introducing questions of causation to an aiding and abetting situation, it seems clear that withdrawal could be demonstrated where the secondary party’s encouragement has been “spent”, even where there was no communication. 188 R v Sully was a case where the appellant failed to overturn a conviction for aiding and abetting dangerous driving. The appellant was involved in a high-speed race before pulling out of the race without signalling or communicating with the other driver. Seconds later the other driver was involved in a collision, causing death and injuries. The argument by senior counsel for the appellant in that case (who, as it turns out, appeared for the appellant at the trial in this case) was that the appellant was not liable because he had effectively withdrawn his encouragement. After extensively reviewing the authorities, Vanstone J (with whom Sulan and Anderson JJ agreed) rejected that argument and upheld the conviction. 189 The point about withdrawal which is now taken on this appeal did not ever feature at the trial. Although the appellant accepted that she came under an evidential onus, she did not suggest that the point was a true defence as distinct from a way of viewing the evidence relevant to proof of accessorial liability. No authority was cited which demonstrated how encouragement which was not spontaneous could be said to have been “spent” as the result of inactivity and without “express and actual countermand or revocation”.170 190 The observations earlier made about the duty of the trial judge to direct the jury as to the real issues in a complex case, having regard to the conduct of counsel at the trial, particularly experienced and competent senior counsel, need not be repeated. As a reading of the closing address of senior counsel for the appellant demonstrates, the appellant’s case at trial was that she never agreed that Skinner should murder her husband and she never gave her encouragement to Skinner to commit murder. 191 If the jury took the view that the appellant either agreed to or encouraged murder, the defence of the appellant at trial did not ever extend to an alternative case that the appellant withdrew her agreement or encouragement, still less that her encouragement was somehow spent in the hours between the “hunting spree” exchange and falling asleep at Astrid Street on the evening of 14 December 2018, 170 R v Becerra (1976) 62 Cr App R 212, 219 (Roskill LJ, with whom Bridge LJ and Brown J agreed). -- 48 of 121 -- [2023] SASCA 111 Livesey P 45 after which Skinner and Thrupp walked to Nathan Court where the deceased was murdered on the morning of 15 December 2018. 192 Whilst the appellant pointed to events that night, such as the visit to the police station, it cannot be said that these represented any express or actual countermand of her earlier encouragement. Indeed, in her final address the prosecutor questioned the purpose of the visit to the police station. The appellant knew about Skinner’s unusual conduct in surreptitiously filming the encounter:171 So I pose this for your consideration, members of the jury: did Mr Skinner go to the police station with Ms Hinrichsen and did he record that conversation to create a record of them wanting a peaceful separation from Steven Hinrichsen? Is that the reason why Mr Skinner sounds so reasonable and measured and why he tells Officer Coden that he has no issue with this man Steven? 193 Indeed, this was a case where the prosecution pointed to the events and messaging which inexorably built over time during November and before 15 December 2018. Inherent in the prosecution case was that the appellant gave Skinner her house keys. Whether the appellant gave Skinner her keys was potentially relevant to both the agreement and the encouragement to commit murder. On the prosecution case that happened before the appellant went to sleep. 194 So, in this case, senior counsel for the appellant tried to meet that case by emphasising the conduct of his client in the days leading to 26 November, her conduct in removing Skinner from the house that evening, going to the police on the evening of 14 December and, most importantly, by pointing to what she did not do during the evening of 14 December and in the early hours of 15 December 2018. That approach included the proposition, expressed in her record of interview, that she did not give her keys to Skinner. It was contended that it remained a reasonable possibility that Skinner obtained them without her involvement. That approach cannot be criticised for, objectively, it represented a rational forensic strategy. 195 The conduct of counsel reveals what the real issues were.172 The question of withdrawn or “spent” encouragement was never put into issue and the evidence did not require that it be addressed by the trial judge. It would have been idle to do so. Even taken at its highest, the evidence did not meet the requisite evidential burden.173 It would have amounted to an invitation to address an unreal and speculative hypothesis. A change of heart or motive is not sufficient. There was no evidence to which the appellant could point to suggest that she had said or done what was reasonably practicable to countermand the effect of her earlier words or 171 Transcript of Proceedings, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 8 June 2021 – 26 July 2021), 1284. 172 Alford v Magee (1952) 85 CLR 437, 466; Perara-Cathcart v The Queen (2017) 260 CLR 595, [53], [65]-[66] (Kiefel, Bell and Keane JJ). 173 Braysnich v The Queen (2011) 243 CLR 434, [31]-[33] (French CJ, Crennan and Kiefel JJ), [101] (Bell J); see also Strong v Woolworths (2012) 246 CLR 182. -- 49 of 121 -- [2023] SASCA 111 Livesey P 46 conduct.174 As Doyle CJ explained in R v Jenner, relying on R v Becerra,175 there was “nothing to indicate a withdrawal from the planned venture”, and as withdrawal did not realistically arise it was not necessary for the trial judge to leave the issue to the jury. As the former Chief Justice also explained, for withdrawal to arise “there must be some communication of the intention to abandon the planned venture, or some action which can reasonably be regarded as terminating” the effect of the accused’s conduct.176 The need for timely communication or conduct which countermands the effect of earlier encouragement or assistance has been the approach consistently applied in other cases.177 196 In particular, this is not a case where the appellant, having encouraged murder, could then point to evidence that she spoke with Skinner, making it clear that she no longer intended that the offence be committed.178 This is not a case where it was or could realistically be suggested that the mere effluxion of time during the evening of 14 December and morning of 15 December was sufficient, of itself, to demonstrate the appellant’s withdrawal and countermanding of the encouragement which, on the prosecution case, had been building over a number of weeks. As in R v Becerra, in order to be effective to countermand her earlier conduct, the appellant had to be able to point to conduct “vastly different and vastly more effective”.179 197 It was not necessary for the trial judge to direct the jury in the manner now suggested by the appellant for the first time on appeal.180 In these circumstances, there is no warrant for concluding that the jury convicted the appellant on something less than what the law required in order to establish liability as an accessory. The absence of the suggested direction has occasioned no miscarriage of justice. 198 Appeal ground 1 should be dismissed. 174 Cf White v Ridley (1978) 140 CLR 342, 351 (Gibbs J), 358 (Stephen J), 363 (Aicken J); R v Sully (2012) 112 SASR 178, [75] (Vanstone J, with whom Sulan and Anderson JJ agreed). 175 R v Jenner (2000) 110 A Crim R 512, [34]-[36] (Doyle CJ, with whom Bleby and Martin JJ agreed). 176 Citing R v Becerra (1976) 62 Cr App R 212, 218 (Roskill LJ, with whom Bridge LJ and Brown J agreed). 177 R v Rook [1993] 2 All ER 955, 961-963 (Lloyd LJ, with whom Potter and Buckley JJ agreed); Croxford v R (2011) 34 VR 277, [51]-[64] (Ashley JA and Ross AJA, with whom Maxwell P agreed); McEwan v R (2013) 41 VR 330, [35], [87] (Redlich, Coghlan JJA and Dixon AJA). 178 Cf White v Ridley (1978) 140 CLR 342, 351 (Gibbs J). 179 R v Becerra (1976) 62 Cr App R 212, 219 (Roskill LJ, with whom Bridge LJ and Brown J agreed). 180 Cf, Perara-Cathcart v The Queen (2017) 260 CLR 595, [53], [65]-[66] (Kiefel, Bell and Keane JJ): “It is neither necessary …, nor desirable generally, for a trial judge to instruct the jury about the law in relation to matters about which no issue arises in the trial. The heavy responsibility of a trial judge does not extend to imagining possible issues which the parties have not raised – much less to formulating directions designed to instruct the jury in relation to the resolution of such non-issues.” -- 50 of 121 -- [2023] SASCA 111 Livesey P 47 Appeal ground 2: out of court statements made by the appellant’s co-accused 199 By appeal ground 2 it is suggested that the trial Judge failed to give adequate directions on the means by which the jury could be satisfied that Skinner committed the offence of murder in the case against the appellant. 200 The complaint is that when addressing the jury as to the first element of accessorial liability, the trial judge failed to direct the jury that it must confine itself to the evidence which was admissible against the appellant. That is to say, the judge failed to instruct the jury that it could not have regard to the evidence which was only admissible against Skinner. 201 On this part of the case the appellant accepts that there was evidence admissible against Hinrichsen capable of proving that Skinner had murdered the deceased. Nonetheless the appellant maintains that there remains a risk that the jury failed to appreciate that it could only have regard to that evidence and not to evidence admissible only as against Skinner. 202 Accordingly, it is submitted that the absence of a clear direction occasioned a miscarriage of justice. 203 It may be accepted that this case involved some complexity. There was evidence before the jury which did not form part of the case against the appellant. 204 It is of course important to have regard to the summing up as a whole. When that is done, it can be seen that the trial judge gave careful directions addressing the issue the subject of this complaint. 205 First, the trial judge directed the jury that it must consider the case against each accused quite separately and only by reference to the evidence admissible against the particular accused.181 206 Secondly, and insofar as there was evidence before the jury which did not form part of the case against the appellant, the trial judge gave specific directions about that evidence. That evidence included: 1. Firstly, the text messages exchanged between Skinner and Thrupp which the trial judge directed the jury could not be used against the appellant.182 2. Secondly, there were the admissions made by each of Skinner and Thrupp to Rachel Thrupp shortly following the murder which were summarised by the 181 Transcript of Summing Up, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 26 July 2021), 18. 182 Transcript of Summing Up, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 26 July 2021), 51. -- 51 of 121 -- [2023] SASCA 111 Livesey P 48 trial judge. In each case, her Honour directed the jury that those statements were only admissible as against their maker.183 3. Thirdly, the evidence of statements made by Skinner to Thrupp regarding the assault on 16 November 2018 which the jury were told could not be used against the appellant.184 4. Fourthly, Thrupp made various statements to the police on 15 December 2018 which the trial judge directed the jury were only admissible in the case against Thrupp and were not admissible in the case against the appellant (or Skinner).185 The trial judge reminded the jury about this direction later in her summing up.186 5. Fifthly, when the judge addressed the record of interview of Skinner she warned them that it was only admissible against Skinner.187 207 Accordingly, the trial judge clearly and effectively directed the jury about the necessity to confine their consideration of proof of guilt to the evidence which was only admissible as against the particular accused. Necessarily, that meant that when the jury considered whether Skinner was guilty of murder for the purposes of the appellant’s liability as an accessory, the jury had already been told to confine its consideration to the evidence admissible against the appellant. 208 The directions given on these matters were, as has been seen, helpfully given by reference to bodies of evidence which were identified as only being admissible against particular accused, and would likely have had a cumulative, constraining effect upon the jury. 209 There is no perceptible risk that the jury determined whether Skinner was guilty of murder in the case against the appellant as accessory on anything other than the evidence which was admissible against the appellant. 210 Nevertheless, it is complained that the aide-memoire given to the jury by the trial judge contained the following extract regarding the first element of accessorial liability regarding the appellant: 1. Someone committed the offence of murder. A person cannot be an accessory to the commission of a crime if no crime is committed. 183 Transcript of Summing Up, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 26 July 2021), 82-84. 184 Transcript of Summing Up, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 26 July 2021), 86-87. 185 Transcript of Summing Up, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 26 July 2021), 113. 186 Transcript of Summing Up, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 26 July 2021), 155. This was in addition to the general direction at p 18. 187 Transcript of Summing Up, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 26 July 2021), 155. -- 52 of 121 -- [2023] SASCA 111 Livesey P 49 In the circumstances of this case if you were to find Gavin Skinner not guilty of murder, you could not find Tanya Hinrichsen guilty of murder as an accessory before the fact. 211 It is said that there was nothing in the aide-memoire to confine the jury in its consideration of Skinner’s liability for murder in connection with the appellant’s liability as an accessory to the evidence admissible against the appellant.188 212 Although it was not put in these terms, the effect of the contention is that it was an error for the trial judge to fail to articulate the first sentence in the extract from the aide-memoire as: “Someone committed the offence of murder, which is only proved on the evidence admissible against the accessory”. 213 The jury is assumed to understand and to comply with the directions given to them by the trial judge.189 As to those, the jury was in this case left with the careful and detailed directions given in the course of the summing up which confined their consideration of the case against the appellant to the evidence admissible against the appellant. There is nothing in the aide-memoire which detracted from those directions. 214 Indeed, this appeal ground was argued by reference to the statements made by the appellant’s co-accused out of court and not in her presence. As has been seen, the jury was explicitly told that these statements were only admissible against their makers. On a number of occasions, the jury was also told that statements like these were not admissible against the appellant. 215 A further difficulty with this contention is that, in oral argument, the appellant placed particular reliance on the statement in the aide-memoire about the consequences of finding Skinner not guilty of murder. 216 Obviously enough, that statement was disengaged from the determination of Skinner’s liability for murder. This particular point concerning the aide-memoire is not made about proof of murder at all. Rather, it is made about a different issue altogether. That is, the aide-memoire operated as a warning that the jury could not convict the appellant of accessorial liability if Skinner was acquitted of murder. 217 As it is conceded that there was evidence sufficient in the case against the appellant to convict Skinner of murder, and as Skinner was convicted of murder, it is difficult to see how this warning could have prejudiced the appellant in any way. 218 It is difficult to see how this different issue could have negated the combined, constraining effect of the numerous, clear directions given by the trial judge to the jury about its determination of the appellant’s guilt as an accessory on the evidence admissible against the appellant. These, it will be recalled, were to the effect that the jury needed to consider the case against the appellant quite separately, and only 188 King v The Queen (1986) 161 CLR 423. 189 Gilbert v The Queen (2000) 201 CLR 414, 420 (Gleeson CJ and Gummow J). -- 53 of 121 -- [2023] SASCA 111 Livesey P 50 by reference to the evidence admissible against the appellant, together with the various directions given about the evidence which was not admissible against the appellant. 219 It ought not be overlooked that no complaint was made about the aide-memoire by senior counsel for the appellant at the trial. There is no perceptible risk that the determination of the appellant’s liability as an accessory was prejudiced by the aide-memoire, including the warning about the consequences of a finding that Skinner was not guilty of murder. 220 This appeal ground should be dismissed. Appeal ground 4 – consciousness of guilt 221 At the very conclusion to her closing address on 19 July 2021 the prosecutor invited the jury to reject a statement made by the appellant to the police to the effect that on the morning after the murder she noticed that her keys were placed differently on her key ring. This, said the prosecutor, was:190 …a late desperate conniving attempt to distance herself from providing those house keys to Skinner and, therefore, from the truth of her involvement in this crime. 222 The appellant submitted that this submission amounted to a contention that the appellant lied and that this was evidence of a consciousness of her own guilt in her husband’s murder. Though this had not formed part of the prosecution case during the trial, the appellant contended that what amounted to an implied admission of guilt was left ringing in the jury’s ears as the court adjourned for the day.191 223 The appellant emphasised that, because of COVID related issues, the court adjourned for a week until the addresses of defence counsel were given. Accordingly, it was submitted that the prosecutor’s invitation to the jury to “misuse the evidence of the alleged lie … was left untouched for an entire week”. 224 The appellant complained that the prosecutor’s invitation to the jury to misuse her statement occasioned a miscarriage of justice because of the combination of its emotive strength, the lengthy period before anything was said by the trial judge about lies and the fact that the direction on lies was general and not specifically by way of correction of the prosecutor’s submission. 225 It is first helpful to address what the appellant said about the topic in her record of interview with police.192 The appellant told police: 1. When she went to Nathan Court on 14 December 2018 at around 11.30 pm with Skinner, Thrupp and Thrupp’s daughter to collect her clothes she used 190 Transcript of Proceedings, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 8 June 2021 – 26 July 2021), 1333. 191 R v Sheppard [2010] QCA 342, [20] (McMurdo P, with whom Holmes JA and Daubney J agreed). 192 Exhibit P65. -- 54 of 121 -- [2023] SASCA 111 Livesey P 51 her front door key to unlock the front door. She locked the door when they left. 2. On returning to Astrid Street, she fell asleep on the couch on the evening of 14 December 2018 (in the early hours of 15 December 2018). Her handbag was on the floor next to her. Amongst other things, it contained her keys. Her keys were in her handbag when she awoke the following morning. 3. On the morning of 15 December, before she left to check on her husband, her keys were placed differently on her key ring. She said that she did not take her keys off her key ring. 4. When she returned to her home alone on the morning of 15 December 2018, just after 9.00 am, the front door was locked. She had the keys on her key ring with other keys and she unlocked the front door, though the screen door was wide open. 5. The implication was that someone had access to her handbag whilst she was asleep, took her keys and went to Nathan Court. She reasoned that this must have occurred because there was no sign of forced entry, and the screen door was left wide open. The deceased would have locked both the front door and the front screen door. 6. She thought her husband’s killer must have broken in, but she could not work out how because she had her keys and everything was locked up. All of her keys were accounted for. 7. When Skinner and Thrupp confronted her husband on 16 November 2018, she gave them her key so that they could get into the house. 226 The prosecutor addressed for the whole of Monday, 19 July 2021 and, as mentioned, in the concluding stages she addressed the appellant’s record of interview:193 The prosecution asks you to consider it in this way; how can you accept from the mouth of this lady that it is true or even reasonably possibly true that when she found her husband’s phone in her bag that morning, the same phone that she failed to take back to her husband, failed to turn around to get when she claims she realised she had forgotten it, how can you accept that she also found at that time that the house keys were placed differently? Remember, in that interview one of the first things she said to detectives is that she can’t work out what happened because the house was locked. That might tell you that she well understood the significance of the way in which entry had been made into this house. Members of the jury, in the prosecution submission, you cannot accept that claim about the keys as anything other than a late desperate conniving attempt to distance herself from 193 Transcript of Proceedings, The King v Hinrichsen (Supreme Court of South Australia, SCCRM-20-65, David J, 8 June 2021 – 26 July 2021), 1332-1333. -- 55 of 121 -- [2023] SASCA 111 Livesey P 52 providing those house keys to Skinner and, therefore, from the truth of her involvement in this crime. 227 It would seem that as both the prosecution and the defence accepted that the appellant’s keys were used. The question was whether they were taken by Skinner and Thrupp without the appellant’s knowledge, or whether they were provided to them by the appellant. 228 In submissions before this Court, the Director submitted that the appellant was, in her record of interview, deflecting attention from herself. In his submission, the prosecutor’s address to the jury targeted that the appellant’s attempt to implicate others in the use of her keys without her knowledge or approval lacked credibility. The prosecutor was, it was submitted, only attacking the appellant’s credibility. No submission was made that suggested that the appellant had lied out of a consciousness of guilt. Accordingly, this was not a case that required an Edwards direction.194 229 It is true that in most cases where criticisms are made of accounts given by an accused in a record of interview, a Zoneff direction rather than an Edwards direction is usually required.195 In this case, it is of course noteworthy that, here again, counsel for the appellant did not criticise the approach taken in final address or request that anything more be said by the trial judge in her summing up. 230 Objectively, that approach was likely adopted for a number of sound forensic reasons. First, and most importantly, this aspect of the prosecutor’s final address is not likely to have been thought to have the significance which is now given to it. It is likely to have been regarded, correctly, as a straight-forward attack on the credibility of the appellant’s account to police about her keys. Secondly, the prosecutor’s speech did not suggest that the jury should, on account of what she told police, find that the appellant had lied and that this lie should be used in the determination of the appellant’s guilt. 231 Thirdly, and in any event, after the address of counsel for the prosecution, the matter was adjourned for a week and the conclusion to counsel’s address is likely to have faded in the minds of all concerned. It was not addressed directly in summing up and there is no reason to think that it featured in the jury’s deliberations. Asking the judge to address it again would have been likely only to have reinforced the point about the appellant’s lack of credibility in the minds of the jury. 232 In these circumstances, the standard “lies” direction given by the trial judge has not been shown to have been inadequate. It has not been demonstrated that the prosecutor’s address on this point has resulted in a miscarriage of justice. This appeal ground should be dismissed. 194 Edwards v The Queen (1993) 178 CLR 193. 195 Zoneff v The Queen (2000) 200 CLR 234. -- 56 of 121 -- [2023] SASCA 111 Livesey P 53 Conclusion 233 For these reasons, appeal grounds 1, 2 and 4 should be dismissed. 234 The balance of the appellant’s appeal grounds should be dismissed for the reasons given by Lovell and Doyle JJA. 235 The appeal should be dismissed. -- 57 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 54 236 LOVELL AND DOYLE JJA: The appellant, Tanya Hinrichsen, together with Gavin Skinner and Robert Thrupp, was jointly charged with murder. It was alleged that on 15 December 2018 they murdered Steven Hinrichsen, the husband of the appellant, in his home at Nathan Court, Morphett Vale. 237 The evidence was that the deceased died from multiple stab and incised wounds which resulted in extensive blood loss. The deceased’s injuries were consistent with at least 65 separate applications of force. 238 The prosecution case against Hinrichsen was that she was guilty of murder on two bases: as a party to a joint enterprise with Skinner or, in the alternative, as an accessory before the fact. 239 The three accused were tried before a judge and jury. The jury found Skinner guilty of murder, and Thrupp not guilty of murder but guilty of manslaughter. The jury found the appellant guilty of murder. 240 The appellant’s notice of appeal contains the following grounds: 1. The learned trial Judge erred at law in not correctly and adequately directing the jury about what had to be proved for the appellant to be guilty of murder as an accessory before the fact. 2. The learned trial Judge erred and a miscarriage of justice was occasioned by the failure to adequately direct the jury how to decide whether Skinner murdered the deceased for the purposes of whether the appellant was guilty of murder as an accessory before the fact. 2A. The learned trial Judge erred in leaving to the jury the pathway of convicting the appellant of murder on the basis that she had been a party to a joint criminal enterprise with Skinner to kill or cause grievous bodily harm to the deceased. 2B. The learned trial Judge erred in law in directing the jury to the effect that if one or more of Skinner and Thrupp committed the acts which caused the deceased’s death, Hinrichsen would be guilty of murder on the basis of the principles of joint enterprise if she had, at that time, been a party to an understanding or arrangement with Skinner alone to kill or cause grievous bodily harm to the deceased. 2C. The learned trial Judge erred by failing to direct the jury that because the prosecution case was that there were separate joint criminal enterprises between Skinner and Thrupp and Skinner and Hinrichsen, it could only find Hinrichsen guilty of murder according to joint enterprise principles if it was satisfied beyond reasonable doubt that physical acts done by Skinner caused the deceased’s death. 3. A miscarriage of justice was occasioned, or alternatively the conviction is unreasonable, because it was left open to the jury to convict the appellant of murder on the basis she was a party to a joint criminal enterprise with Skinner to murder the deceased. 4. A miscarriage of justice was occasioned by the learned trial Judge’s failure to adequately direct the jury in relation to prosecution counsel’s submissions to the jury about what the appellant told police about her house keys. -- 58 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 55 241 The particulars of these grounds of appeal are set out later in these reasons. 242 Ground 1 raises issues of law and so does not require permission to appeal. A judge of this Court granted permission to appeal on grounds 2 and 4, and referred the application for permission to appeal on ground 3 to the Court of Appeal for hearing as on appeal. Permission to add Grounds 2A, 2B and 2C was granted on the hearing of the appeal. The prosecution case against Skinner and Thrupp 243 The prosecution case against Skinner and Thrupp was that in the early hours of 15 December 2018, they walked from a house at Astrid Street, Christie Downs, to the deceased’s home at Nathan Court, arriving between 5.00am and 6.00am, and together killed the deceased. 244 The prosecution case was that Skinner and Thrupp were guilty of murder on the basis of joint criminal enterprise or, in the alternative, extended joint criminal enterprise. 245 As to the former, the prosecution case was that Skinner and Thrupp were parties to an agreement or arrangement with each other to kill or cause grievous bodily harm to the deceased, and that each participated in that agreement by inflicting the fatal wounds or being present when they were inflicted as part of the agreement. 246 As to extended joint enterprise, the prosecution case was that Skinner and Thrupp were parties to an agreement or arrangement with each other to assault the deceased; that each participated in that agreement by being present when the fatal wounds were inflicted; that in the course of carrying out their agreement one of the accused inflicted the fatal wounds with an intention to kill or cause grievous bodily harm; and that the other accused foresaw the possibility that the accused may inflict violence on the deceased with an intention to kill or cause grievous bodily harm. 247 The judge left an alternative verdict of manslaughter for Skinner and Thrupp. The judge directed the jury that Skinner and Thrupp were guilty of manslaughter if they entered into an agreement to assault the deceased; they participated in that agreement; in the course of carrying out the agreement another party committed voluntary and deliberate acts which were dangerous and unlawful and caused the death of the deceased; and the accused foresaw the possibility that another party to the agreement may inflict a dangerous act with an intention to cause harm. The prosecution case against Hinrichsen 248 The prosecution case against Hinrichsen was factually and legally different from the case against Skinner and Thrupp. 249 On the prosecution case, Hinrichsen remained at the house at Astrid Street while the deceased was killed at Nathan Court. She fell asleep on a couch at about 2.00am and remained at Astrid Street until shortly before 9.00am. She then drove -- 59 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 56 to the deceased’s house and discovered his body, before calling triple zero with the result that police attended. On the prosecution case, Hinrichsen was not present when the deceased was killed and did not inflict any injury upon him. 250 The prosecution contended that Hinrichsen was guilty of murder on two bases: as a party to a joint enterprise with Skinner or, in the alternative, as an accessory before the fact. 251 The prosecution case of joint criminal enterprise was that Hinrichsen was a party to an agreement or arrangement with Skinner to kill or cause grievous bodily harm to the deceased; that she intentionally participated in that agreement by giving Skinner her house keys so he could enter the deceased’s house; and that whilst the agreement was on foot, Skinner or Thrupp committed the acts which caused the deceased’s death. 252 In the alternative, the prosecution alleged that Hinrichsen was guilty of murder as an accessory before the fact in that she intentionally encouraged Skinner to murder the deceased, intending that Skinner would commit the offence of murder. 253 The trial judge left an alternative verdict of manslaughter, on a basis equivalent to the case of manslaughter against Skinner and Thrupp. Overview of the prosecution evidence 254 The following is not intended to be a comprehensive summary of the evidence. It is intended merely to identify the general nature of the evidence at trial, and some of the key issues arising on the parties’ respective cases, so as to provide context for consideration of the various grounds of appeal. 255 Hinrichsen and the deceased had been married for many years at the time of his death. Hinrichsen had also been the deceased’s carer for some time. The deceased had been experiencing ‘back problems’ and had broken his femur twice in early 2018. He was confined to a wheelchair as at November and December 2018. 256 By November 2018, Hinrichsen and Skinner were in a sexual relationship, and had been for a couple of months. Hinrichsen was planning to leave the deceased to live with Skinner, but the deceased had been trying to persuade her not to do so, and making it difficult for Hinrichsen and Skinner to be together. On the prosecution case, there was increasing animosity shown by Skinner and Hinrichsen towards the deceased on account of his being an impediment to their relationship. 257 Text messages and multimedia messages extracted from mobile phones used by Skinner and the deceased were an important aspect of the prosecution evidence. The relevant exhibits containing these messages were: -- 60 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 57 • Exhibit P20 – a table of text messages sent and received by Skinner’s mobile phone between 1 November 2018 and 15 December 2018 to or from the mobile phones used by Hinrichsen and Thrupp; • Exhibit P21 – a table of multimedia messages sent and received by Skinner’s mobile phone between 12 October 2018 and 15 December 2018 to or from the mobile phones used by Hinrichsen and Thrupp; and • Exhibit P28 – a table of text messages sent and received by the deceased’s mobile phone between 6 December 2018 and 14 December 2018 to or from the mobile phone used by Hinrichsen. 258 On the prosecution case, the messages were said to reveal the nature of Hinrichsen’s relationship with Skinner, the deterioration of her marriage, and her growing animosity towards the deceased. It was said that they revealed her agreement with Skinner that her husband be killed or very seriously harmed. 259 On the defence case, it was argued that the messages, whilst showing tension in her marriage and frustration, were nevertheless ambiguous and consistent with Hinrichsen placating her new boyfriend, and talking him down, rather than expressing any genuine intention to kill her husband or cause him grievous bodily harm. It was argued that the evidence did not exclude as a reasonable possibility that Skinner and Thrupp went on a frolic of their own, fuelled by their methylamphetamine use, in inflicting the fatal wounds upon the deceased. 260 Evidence was adduced of Hinrichsen’s knowledge of, and indeed involvement in, two earlier assaults of the deceased by Skinner. They both occurred in November 2018, and were said to show the extent of Hinrichsen’s animosity towards the deceased. 261 In particular, evidence was adduced from which the jury was asked to infer that Skinner and Thrupp had previously entered the deceased’s home on 16 November 2018 and assaulted him. This evidence included: • messages contained in Exhibits P20 and P21 sent between Skinner’s and Hinrichsen’s mobile phones on 15 and 16 November 2018; • Skinner’s presentation at Noarlunga Hospital on 16 November 2018 with a fractured scaphoid bone in his hand; • photographs of the deceased and Skinner in Exhibit P28, taken and sent on 16 and 17 November 2018, showing bruising to the deceased’s face and a bandage on Skinner’s hand; and • the deceased’s attendance at Noarlunga Hospital on 17 November 2018 with a swollen and painful left elbow. -- 61 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 58 262 During a police interview conducted on 15 December 2018, Hinrichsen acknowledged that on 16 November 2018 she met Skinner and Thrupp and gave them her front door key, then parked down the end of the street while they went to the deceased’s house. She said that she did not know what was going to happen, and did not want to know what happened. She said she guessed Skinner and Thrupp wanted to put some fear into the deceased for him to leave her alone and let her do what she wanted to do. 263 The evidence at trial included evidence from a Barbara Varney, who was the aunt of Thrupp and was living at Astrid Street during December 2018. She said that she recalled an occasion when she overheard Skinner and Thrupp talking; that Skinner was talking about a time when he had been taken by his partner to give a man a beating, and that he ended up hurting his hand. Varney said that Skinner and Thrupp were laughing about the incident. 264 Text messages between Skinner’s and Hinrichsen’s mobile phones on 23 and 24 November 2018 referred to a possible further assault of the deceased, Hinrichsen’s frustration with the deceased, and the desire of Hinrichsen and Skinner to be together. 265 The jury were invited by the prosecution to infer that Skinner entered the deceased’s home again on 26 November 2018, this time assaulting him whilst Hinrichsen was present. The evidence from which the jury were asked to draw this inference included: • text messages in Exhibit P20 sent between Skinner and Hinrichsen on 26 November 2018. These included an exchange at 5.29pm, with Hinrichsen saying that “Steve has to go”, Skinner responding “What’s wrong now?” and Hinrichsen responding “All I can say is he needs to go”. They also included an exchange later that evening, after the events described in the next few bullet points, with Skinner saying at 11.42pm “I should have killed that fucking cunt” and Hinrichsen responding at 11.44pm “I know babe”; • a recording in Exhibit P22 of an audio file from Skinner’s mobile phone of the alleged assault of the deceased by Skinner and its aftermath, recorded on 26 November 2018 from 6.11pm. During the incident, Hinrichsen could be heard repeatedly telling Skinner to leave. After they left the house, Skinner made remarks to Hinrichsen, threatening what he would do to the deceased (including saying “Next move he’s dead, I am serious”, and then after Hinrichsen said that she had been waiting for him to grab a knife from the kitchen, he said “No that’s the next move … I’ll stab him in the fucking neck, I don’t give a fuck”); • a recording in Exhibit P19 of a discussion between Brevet Sergeant Bass and the deceased at his home on 26 November 2018 about the deceased having just been assaulted by Skinner, but suffering only minor wounds. The -- 62 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 59 deceased told Bass that Hinrichsen had got Skinner out of the house so that Skinner would not cause him any more damage; and • recordings in Exhibits P23 and P24 made by Senior Constable Little and Probationary Constable Denny at Noarlunga Hospital, on the evening of 26 November 2018, when they spoke to Skinner and Hinrichsen about Skinner having gone to Nathan Court and having assaulted the deceased. 266 On 9 December 2021, the deceased made a missing person’s report about Hinrichsen to police. As a result, a police patrol went to an area of the Onkaparinga River where they found Skinner and Hinrichsen. Police told them they had come there to speak to Hinrichsen because of the deceased’s report. Both Skinner and Hinrichsen displayed annoyance with what they regarded as the deceased’s interference. 267 There were then numerous relevant text messages in Exhibits P20 and P28 between Skinner and Hinrichsen, and Hinrichsen and the deceased, leading up to the deceased’s death on 15 December 2018. These included: • a text message from Skinner (on Hinrichsen’s mobile) to the deceased sent on 13 November 2018 to the effect that Skinner and Hinrichsen were in a relationship, that Hinrichsen had chosen him over the deceased, and that the deceased should leave them alone; • a text message exchange between Hinrichsen and the deceased in the evening of 14 December 2018 in which the deceased refused permission for Skinner to stay over, and Hinrichsen said that the deceased needed to stop taking over her life and that their marriage was finished; • text messages from Hinrichsen to Skinner sent on 14 December 2018 at 6.06pm and 6.07pm in which she said that she had found out why the deceased would not “let over”, that she loved Skinner, and that she “seriously need[ed] to move out asap”; • a text message from Skinner to Hinrichsen sent a few minutes later at 6.09pm, saying that he was “soooooo ready to go on a hunting spree …,” to which Hinrichsen replied at 6.10pm that “if it’s to do him then I’ll give you my permission”, and Skinner in turn responded “I absolutely don’t give a fuck atm … Dead set …”; • subsequent text messages between Hinrichsen and Skinner over the next few hours in which Hinrichsen repeatedly expressed how much Skinner meant to her, that she loved him and that she was scared of losing him; • text messages in the course of this exchange from Skinner to Hinrichsen at 7.58pm and 7.59pm saying “And don’t be pissed off at me … Cos I’m -- 63 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 60 directing you to a newer source … And hopefully a better solution to all this …”; and • a text message from Hinrichsen to Skinner at 8.05pm, saying that she was going to the Christies Beach police to figure out what she could do. 268 On the prosecution case of accessorial liability on the part of Hinrichsen, it was through these text messages, and in particular her message giving Skinner permission to go on a ‘hunting spree’, that Hinrichsen intentionally encouraged Skinner to murder the deceased. 269 Evidence given by Rachel Thrupp (Robert Thrupp’s daughter), Barbara Varney and Zac Stretton (all of whom were present at Astrid Street on 14 and 15 December 2018), and a text message in Exhibit P20, suggested that at about 11.00pm on 14 December 2018, Hinrichsen joined Skinner at Astrid Street. 270 At about 12.05am on 15 December 2018, Hinrichsen and Skinner attended the Christies Beach police station where they had a discussion with Probationary Constable Kate Coden. Hinrichsen sought advice about how she could leave the deceased. The conversation was recorded on Skinner’s mobile phone (Exhibit P30). 271 A short time later, at 12.23am, Skinner sent a message to Thrupp in which he said “Want some fuuuuuuuuuuun”. Whilst there was no evidence of any response to this message by Thrupp, the prosecution case was that this was, in effect, an invitation by Skinner for Thrupp to participate in what later occurred at the deceased’s premises. 272 At 12.29am, Skinner sent a text message to Hinrichsen saying “Come in, need to discuss, might have a place”. 273 Rachel Thrupp’s evidence196 was that while she was at Astrid Street on 14 December 2018 she offered to let her father, Skinner and Hinrichsen move into her flat. As such, Hinrichsen knew she had a place she could move into to live with Skinner well before the deceased was killed between about 5.00am to 6.00am the following morning. On the defence case, this evidence was significant because it meant that by this time, Hinrichsen no longer had a motive (or as great a motive) to participate in any agreement to kill or cause grievous bodily harm to the deceased. 274 Indeed, Rachel Thrupp also gave evidence that a little later that night, she travelled with Thrupp, Skinner and Hinrichsen, in Hinrichsen’s car, to Nathan Court to collect some of Hinrichsen’s belongings. They then all drove back to Astrid Street. 196 The prosecutor submitted that Rachel Thrupp’s evidence was credible and reliable. -- 64 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 61 275 Rachel Thrupp said that after they returned to Astrid Street, Hinrichsen lay down on the couch in the lounge and went to sleep. Later on, she saw Hinrichsen still asleep on the couch, but Skinner and Thrupp were nowhere to be seen. On the prosecution case, this was when Skinner and Thrupp went to Nathan Court and killed the deceased. The evidence at trial included CCTV footage and mobile phone data which the prosecution relied upon as establishing that Skinner and Thrupp walked from Astrid Street to Nathan Court, and then, after killing the deceased, walked back again. 276 Rachel Thrupp also gave evidence of conversations with Skinner some hours later, once he had returned to Astrid Street. She said that Skinner made reference to hearing sirens, and to the deceased having committed suicide and there being blood. She said that at one point Skinner started yelling, and repeating, “We didn’t go back there, we didn’t go back there”. She described their conversations as erratic. 277 Rachel Thrupp said she also had a conversation with her father around this time. She asked him about whether the deceased had committed suicide. He initially doubted whether that would have happened, but when she told him that Skinner had told her it was true, he said “Every dog gets their day”. 278 On the prosecution case of joint enterprise against Hinrichsen, she participated in an agreement with Skinner to kill, or cause grievous bodily harm to, the deceased by giving him the keys to Nathan Court, intending thereby to give Skinner access to the deceased to carry out their agreement. This was consistent with there being no evidence of forced entry to Nathan Court when police later attended. On the defence case, the evidence did not exclude as a reasonable possibility that Skinner or Thrupp, or both, took the keys from Hinrichsen’s bag while she slept, or that Skinner retained the house keys which were on the same key ring as the car keys he was given when he drove Hinrichsen’s car back to Astrid Street. 279 Later in the morning of 15 December 2018, Hinrichsen drove from Astrid Street to her home at Nathan Court. She made a triple zero call to police at 9.00am, just after she discovered the deceased’s body. She sounded shocked by her discovery. 280 There were then text messages and multimedia messages between Hinrichsen and Skinner from 9.09am. The first text message from Hinrichsen stated “Steve’s dead”. Skinner replied with apparent surprise and then asked her “What the fuck happened ..? ??” On the defence case, Skinner acting coy with Hinrichsen was an indication Skinner had not told her what he had done (and, indeed, had not previously told her that he was going to go back to Nathan Court). 281 The evidence at trial included evidence from a pathologist to the effect that the deceased’s death was caused by multiple stab wounds and incised wounds -- 65 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 62 which resulted in extensive blood loss. The deceased’s injuries were consistent with at least 65 separate applications of force. 282 The evidence also included a significant body of physical evidence (including DNA evidence) obtained from the crime scene examination, and other items of clothing and the like seized from Skinner and Thrupp, which the prosecution relied upon as linking Skinner and Thrupp to the murder of the deceased. 283 A handwritten statement was taken by police from Hinrichsen at the scene by Senior Constable Ellis. Later that morning, Hinrichsen was arrested. She took part in a video recorded interview with the police in which she denied being party to any agreement to kill, or cause grievous bodily harm to, the deceased. She also denied having given her house keys to Skinner. 284 The evidence at trial included an informal statement (and addendum statement) provided by Thrupp to police, but he did not participate in any formal interview after his arrest. 285 Skinner participated in an interview after his arrest, and the record of this interview was in evidence. 286 In their statements and interview, Thrupp and Skinner both denied any involvement in killing the deceased. 287 None of the accused gave evidence. Ground 1: directions in relation to accessory before the fact 288 In Ground 1, the appellant challenges the judge’s directions in relation to her potential liability for murder as an accessory before the fact: 1. The learned trial Judge erred at law by not correctly and adequately directing the jury about what had to be proved for the appellant to be guilty of murder as an accessory before the fact. Particulars 1.1 Failed to direct the jury that at the time of the conduct by which it was alleged the appellant counselled or procured Skinner to murder the deceased, it had to be proved that she knew that Skinner was going to intentionally inflict grievous bodily harm to, or kill, the deceased. 1.2 Failed to direct the jury that the appellant would not be guilty of murder if at the time of the conduct by which she was alleged to have counselled or procured Skinner to murder the deceased, she only knew that Skinner might possibly intentionally inflict grievous bodily harm to, or kill, the deceased. 1.3 Failed to relate her directions (at SU44) in relation to the second element of murder as an accessory before the fact to the facts of the case. -- 66 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 63 1.4 Failed to direct the jury that it had to be proved that the conduct by which the appellant counselled or procured Skinner to murder the deceased was conduct that was capable of counselling or procuring Skinner to do that. 1.5 Failed to specifically identify the appellant's conduct which the jury was to consider when it decided if the appellant had intentionally counselled or procured Skinner to murder the deceased (SU45). 1.6 [Abandoned]. 1.7 Failed to direct the jury that it had to be proved that at the time the deceased was murdered the appellant had not withdrawn her encouragement to Skinner to murder the deceased and that her conduct was still capable of encouraging Skinner to do that (that is, its effect was not spent). 289 As the appellant challenges various aspects of the judge’s directions in relation to this basis for liability, it is appropriate to commence by summarising the directions given by the judge on this topic. The judge’s directions 290 The judge gave directions concerning Hinrichsen’s potential liability for murder as an accessory before the fact both orally, and in an aide memoire given to the jury. 291 The judge directed the jury that they would come to consider whether Hinrichsen was guilty of murder as an accessory if they were not satisfied that she was party to an agreement or plan with Skinner to kill, or cause grievous bodily harm to, the deceased. She directed the jury that there were three elements which must be proven for Hinrichsen to be guilty of murder as an accessory. 292 First, that someone committed the offence of murder. The judge added that in the circumstances of this case, if the jury were to find Skinner not guilty of murder, they could not find Hinrichsen guilty of murder as an accessory before the fact. 293 Secondly, that Hinrichsen knew, at the time of her encouragement of Skinner, all of the essential facts or circumstances which would make what was later done an offence of murder, namely the infliction of fatal injuries by another with an intention to kill or cause grievous bodily harm to the deceased. 294 Thirdly, that Hinrichsen intentionally counselled or procured (that is, she intentionally encouraged) Skinner to commit the offence of murder. The judge added that: • the intentional encouragement must occur before the offence of murder is actually carried out; -- 67 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 64 • there must be some act committed by the accessory that was intended to bring about the offence later committed by another (here, an act intending that Skinner would commit the offence of murder at a later time); • the act may consist of words or conduct of encouragement (here, text messages and statements), including advising, urging or persuading another to commit the crime; • the prosecution must show that Hinrichsen communicated or attempted to communicate that encouragement to Skinner, although need not show that he would not have committed the offence without her input; • the prosecution will not have proved this element of the offence merely by showing that the accused agreed with the commission of the offence; and • the acts of encouragement by Hinrichsen must be for Skinner to commit the alleged murder on 15 December 2018 and not some earlier event. 295 The judge directed the jury that the prosecution relied upon the following evidence to establish Hinrichsen’s guilt as an accessory before the fact: • the evidence of the deterioration of her marriage and her increasing desperation to be with Skinner and to live with him; • Hinrichsen’s text messages with Skinner, which on the prosecution case showed her knowledge of Skinner’s plan to kill or inflict grievous bodily harm on the deceased, and the communication of her encouragement to do so; and • Hinrichsen’s statements after the earlier assault on the deceased on 26 November 2018, captured on the audio recording that was Exhibit P22. 296 The judge directed the jury that the defence case, on the other hand, was that the text messages were ambiguous as to their meaning. In particular, the text messages sent in the lead up to 26 November 2018 were informed by what took place on that date (namely, an assault) and did not evince an intention that Skinner would kill or cause grievous bodily harm to the deceased. Further, Hinrichsen’s statements in the audio recording of that day were consistent with her placating and talking down Skinner who, on the defence case, was a difficult and erratic partner. As for the subsequent messages involving her, the defence case was that their meaning must be seen in the context of Hinrichsen’s somewhat unusual and adolescent relationship with Skinner, and her stated desire to move on with her life by leaving her relationship with the deceased, rather than by killing or causing grievous bodily harm to the deceased. -- 68 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 65 Grounds 1.1 and 1.2: knowledge that Skinner was going to intentionally cause grievance bodily harm to, or kill, the deceased 297 The first complaint made by the appellant about the judge’s directions in relation to her potential liability for murder as an accessory before the fact is that the judge erred in failing to direct the jury that the prosecution was required to prove that, at the time of the conduct by which it was alleged that she counselled or procured Skinner to murder the deceased, she knew that Skinner was going to intentionally cause grievous bodily harm to, or kill, the deceased (Ground 1.1); and that it was not enough to prove only that she knew that Skinner might possibly do so (Ground 1.2). 298 In contending that it was necessary for the prosecution to prove that, at the time she encouraged him to murder the deceased, Hinrichsen knew that Skinner would, or was going to, do so – as opposed to knowing that it was possible that he might do so – the appellant relies upon passages from the reasons of the High Court in Giorgianni v The Queen197 (Giorgianni), and the emphasis in those passages upon accessorial liability requiring intention with knowledge, rather than recklessness. 299 The respondent, on the other hand, argues that Giorgianni does not support the appellant’s contention. He argues that the fault element of accessorial liability involves the intentional assistance or encouragement of another to engage in conduct, knowing that (rather than being reckless as to whether) the conduct constitutes the factual ingredients of a crime (here, murder). It is not necessary to prove that the accused knew that the offence encouraged would be, or was going to be committed. It is enough that the accused’s conduct was intentionally aimed at the commission of the acts constituting that offence, with the knowledge described above. 300 Giorgianni concerned an incident in which a prime mover, leased by the defendant and driven by his employee (Renshaw), suffered a brake failure while travelling down a steep gradient. The prime mover collided with two other vehicles, killing five people and causing another to suffer grievous bodily harm. The evidence established that the brakes of the prime mover were manifestly defective at the time of the collision, and that the defendant had carried out repairs on the vehicle some two weeks prior to the collision. It was open on the evidence to infer that the defendant was aware, or at least suspected, that the brakes were defective. 301 The defendant was charged with, and convicted of, six counts of culpable driving contrary to s 52 of the Crimes Act 1900 (NSW), comprising five counts of driving in a manner dangerous to the public causing death, and one count of driving in a manner dangerous to the public causing grievous bodily harm. The prosecution case was that the defendant was liable for these offences as an accessory under s 351 of the Crimes Act. In particular, the prosecution alleged that 197 Giorgianni v The Queen (1985) 156 CLR 473. -- 69 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 66 the defendant procured the commission of the culpable driving by Renshaw, in that he employed Renshaw to drive the prime mover, knowing of, or being recklessly indifferent as to, the defective state of the brakes and the danger which they constituted to the public. 302 An issue on appeal was whether accessorial liability198 required knowledge of all the essential facts giving rise to the dangerous driving, or whether recklessness as to those facts was sufficient. The trial judge had directed the jury on the basis that recklessness (or, indeed, negligence) as to the defective state of the brakes was sufficient. The High Court unanimously allowed the appeal, holding that recklessness was not sufficient. 303 Gibbs CJ framed the issue in the following terms:199 The second question that arises is whether a person may be convicted of an offence against s 52A of the Crimes Act, on the footing that he aided, abetted, counselled or procured the commission of that offence, if it is not proved that he knew all the circumstances which made what was done an offence. In other words, is it necessary to prove that the person sought to be made liable as a secondary party had knowledge of all essential facts, or is it enough to prove that he should have had knowledge of those facts or that he acted recklessly not caring whether those facts existed or not? 304 In answering this question, Gibbs CJ held that it was necessary to prove knowledge of the circumstances, or essential facts, that made what was done an offence:200 … the general principle is that a person can be convicted as a secondary party only if he had knowledge of the essential circumstances. Further, as has already been indicated, the person charged must have intended to help, encourage or induce the principal offender to bring about the forbidden result. In other words, both knowledge of the circumstances and an intention to aid, abet, counsel or procure are necessary to render a person liable as a secondary party … 305 His Honour later added that recklessness as to the existence of those facts was not enough:201 Suspicion of the existence of facts, although relevant when the accused has deliberately shut his eyes, does not by itself amount to or take the place of knowledge for present purposes. Further, it is not correct to say that a person may be convicted of aiding, abetting, counselling or procuring the commission of an offence simply because he has acted recklessly. … Recklessness, in the sense of not caring whether the facts exist or not, would be relevant only if it too was virtually equivalent to knowledge, in other words only if it amounted to wilful blindness. 306 His Honour concluded with the following summary of the law:202 198 Reflected in s 351 of the Crimes Act, but which was held to be declaratory of the common law. 199 Giorgianni v The Queen (1985) 156 CLR 473 at 479 (Gibbs CJ). 200 Giorgianni v The Queen (1985) 156 CLR 473 at 482 (Gibbs CJ). 201 Giorgianni v The Queen (1985) 156 CLR 473 at 487 (Gibbs CJ). 202 Giorgianni v The Queen (1985) 156 CLR 473 at 487-488 (Gibbs CJ). -- 70 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 67 My view of the law may be summed up very shortly. No one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender. Wilful blindness, in the sense I have described, is treated as equivalent to knowledge, but neither negligence nor recklessness is sufficient. 307 It followed that the trial judge’s summing up was materially defective. 308 Mason J framed the issue in the same way, namely whether “recklessness as to the state of the brakes and the danger which they constituted to the public” was sufficient to establish the mental element necessary to establish accessorial liability.203 His Honour also answered it in the same way:204 As we have seen, knowledge of all the essential facts giving rise to the dangerous driving is necessary to constitute commission of the offence on the part of the applicant. … It follows that the summing up was defective to the extent that it referred to the concept of recklessness. 309 Wilson, Deane and Dawson JJ also framed the issue as whether the trial judge misdirected the jury in telling them that it was sufficient that the defendant was negligent or reckless as to whether the brakes of the prime mover were defective.205 In holding that neither negligence nor recklessness were sufficient, their Honours said:206 Intent is an ingredient of the offence of aiding and abetting or counselling and procuring and knowledge of the essential facts of the principal offence is necessary before there can be intent. … The third question raised by the passage which we have cited from Reg v Glennon is whether it is possible to aid, abet, counsel or procure the commission of an offence by acting recklessly. Aiding, abetting, counselling or procuring the commission of an offence requires the intentional assistance or encouragement of the doing of those things which go to make up the offence. The necessary intent is absent if the person alleged to be a secondary participant lacks knowledge that the principal offender is doing something or is about to do something which amounts to an offence. We have already referred to Johnson v Youden and the other cases in which this point is made clearly. The same point was expressed differently but with equal clarity by Lord Goddard CJ in Thomas v Lindop, where he said: More than once this Court has pointed out that it is impossible to convict persons of aiding and abetting the commission of an offence unless they know the facts which must be proved to show that an offence has been committed. … It is, of course, not necessary to show that the person knew that it was an offence, because he cannot plead ignorance of the law, but where anyone is charged with aiding and abetting a person to commit an offence, it must, at least, be shown that he knew what that person was doing. A person who does not know of the acts which another person is doing cannot 203 Giorgianni v The Queen (1985) 156 CLR 473 at 489 (Mason J). 204 Giorgianni v The Queen (1985) 156 CLR 473 at 495 (Mason J). 205 Giorgianni v The Queen (1985) 156 CLR 473 at 503-504 (Wilson, Deane and Dawson JJ). 206 Giorgianni v The Queen (1985) 156 CLR 473 at 504-505 (Wilson, Deane and Dawson JJ) (omitting citations). -- 71 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 68 be charged with aiding and abetting him because he does not know that he is doing acts which amount to an offence.’ There are, of course, those cases which hold that the requisite knowledge need not extend to the precise crime which is in fact committed, although some crime must be in contemplation at the time secondary participation is alleged to occur, a general criminal purpose being insufficient … (emphasis added) 310 The appellant emphasises the sentence which we have italicised in the second paragraph of this passage, suggesting that it supports her contention that it is necessary to prove knowledge that the principal offender would, or was going to, commit the relevant offence. However, read in context, it is apparent that their Honours were identifying a requirement of knowledge of the facts (including the contemplated conduct by the principal) that would amount to an offence, rather than any requirement of knowledge that the conduct and offence would occur. This is apparent from the balance of the passage set out above, as well as their Honour’s subsequent conclusion that recklessness as to these facts (as opposed to knowledge of them) is not sufficient to establish accessorial liability:207 In this case, the Crown contends that the appellant procured the commission of the offences of culpable driving by Renshaw by sending him on the road in a vehicle with defective brakes. It contends that, even if the appellant had no knowledge of the state of the vehicle’s brakes, it was sufficient that he acted recklessly in doing what he did. … For the purposes of many offences it may be true to say that if an act is done with foresight of its probable consequences, there is sufficient intent in law even if such intent may more properly be described as a form of recklessness. There are, however, offences in which it is not possible to speak of recklessness as constituting a sufficient intent. Attempt is one and conspiracy is another. And we think the offences of aiding and abetting and counselling and procuring are others. Those offences require intentional participation in a crime by lending assistance or encouragement. They do not, of course, require knowledge of the law and it is necessary to distinguish between knowledge of or belief in the existence of facts which constitute a criminal offence and knowledge or belief that those facts are made a criminal offence under the law. The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence. He need not recognize the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it. It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which he is assisting or encouraging are such, whether he realizes it or not, as to constitute the factual ingredients of a crime. If that were sufficient, a person might be guilty of aiding, abetting, counselling or procuring the commission of an offence which formed no part of his design. Intent is required and it is an intent which must be based upon knowledge or belief of the necessary facts. 311 Again, it followed, on their Honours’ view of the law, that the trial judge in that case erred in directing the jury that recklessness (as opposed to knowledge) as 207 Giorgianni v The Queen (1985) 156 CLR 473 at 506-507 (Wilson, Deane and Dawson JJ). -- 72 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 69 to the defective nature of the brakes would suffice to establish the intent necessary to constitute him the procurer of the offences of culpable driving.208 312 Properly understood, Giorgianni does not support the appellant’s contention. Their Honours each held that accessorial liability requires that the defendant intend the commission of acts by another, knowing all of the essential facts and circumstances that would make those acts a criminal offence. However, their Honours did not require knowledge by the defendant that the defendant would, or was going to, commit the relevant acts. Whilst their Honours said that recklessness was not sufficient, this was recklessness as to the existence of the essential facts and circumstances that would make the acts a criminal offence, not recklessness as to whether the defendant would commit those acts. 313 This understanding of Giorgianni is supported by the subsequent decisions of this Court in R v Rich209 and R v B, FG.210 314 In R v Rich, the defendants, Rich and Hynes, were found guilty of a number of counts of fraudulent conversion of the money of the clients of an investment company of which they were the principal officers. The basis of the case against Rich was that he was an accessory before the fact in that he signed the cheques drawn on the trust account in order to assist Hynes. On appeal, counsel for Rich argued that the trial judge’s directions as to the knowledge required by an accessory before the fact were deficient. This included a submission similar to the one made in the present appeal, namely that the requirement that the defendant have knowledge of the essential facts constituting a criminal offence included a requirement that the defendant know that the offence would be committed. The appellant in that case also sought to rely upon Giorgianni in support of the argument being made. 315 In rejecting this argument, Cox J explained that Giorgianni did not support it. His Honour also pointed out that there was a difficulty with the argument in the sense that an accessory before the fact could never know “in an absolute sense” that the offence would be committed:211 In my opinion, this submission cannot succeed. It is enough at common law if the accessory before the fact foresees the commission of the crime as a possible event. On the prosecution case Rich was guilty by reason of his complicity in Hynes's crime if: (1) Rich was generally aware of the way the company received and managed investment funds for its clients; (2) Rich knew when he signed a trust account cheque that Hynes might well use it dishonestly to misappropriate a client's funds by using them for an unauthorized purpose; (3) Rich intended or at least knew that his signing of the cheque would assist or have the potential to assist Hynes in the commission of the crime; (4) Rich knew or believed that, should the act of conversion be committed by Hynes, it would be committed in circumstances that would, in fact, constitute a crime and (5) the crime was committed by Hynes. But Rich did not have to "know" that the crime would be committed. Indeed, he could never know in an 208 Giorgianni v The Queen (1985) 156 CLR 473 at 508 (Wilson, Deane and Dawson JJ). 209 R v Rich (1997) 53 A Crim R 483. 210 R v B, FG (2012) 114 SASR 170. 211 R v Rich (1997) 93 A Crim R 483 at 496-497 (Cox J). -- 73 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 70 absolute sense at the time he signed a cheque because it was always possible that Hynes would change his mind or be unable for some reason to carry out his intention. The principles upon which the criminal liability of an accessory before the fact is based in this respect are not confined to that category. The same realization of the mere possibility of the principal offender committing the crime suffices for the doctrine of common purpose as well. Giorgianni is not concerned with this aspect of complicity at all. The issue there related to the kind and extent of Mr Giorgianni's knowledge of the dangerous condition of the truck. Giorgianni would have been in point had the issue been whether Giorgianni "knew" that a dangerous truck was to be taken onto the road. Would it have been enough had he made it available to his servant believing only that it might be taken onto the road? If the servant had said, say, "Let me have your dangerous truck; I may use it to sleep in here or I may possibly take it onto the road - I have not yet made up my mind," and Giorgianni let him have the truck? I do not interpret Giorgianni as saying anything about that sort of contingency question. In the present case, then, it was enough for Rich to know, with respect to any particular cheque he signed, that Hynes might possibly use it to commit an act of fraudulent conversion. 316 Cox J also rejected Rich’s argument (again purportedly drawing on Giorgianni) to the effect that knowledge of the essential facts of the contemplated offence included knowledge of details such as who the client and payee would be, and when the offending would take place.212 317 Bleby J (with whom Williams J relevantly agreed) also held that the trial judge’s directions in relation to Rich’s potential liability as an accessory before the fact were adequate. However, in addressing Giorgianni, and rejecting the appellant’s argument, his Honour only squarely addressed the aspect of that argument relating to the suggested requirement that the accessory have knowledge of the detail of the contemplated offending. His Honour held that it was sufficient that the defendant have knowledge of the principal’s intention to commit acts constituting a crime of the type intended; he need not have knowledge of every detail of the intended crime:213 What those cases decided, however, was that what was needed on the part of the accessory before the fact was knowledge of the essential facts, or perhaps a wilful blindness or shutting one's eyes to what was going on, but that mere negligence or recklessness in failing to ascertain those facts was insufficient. The cases did not deal with what constituted the essential facts in a particular case of which the accessory had to have knowledge. I have already noted that the essence of the charge against Rich was that of an accessory before the fact. In such circumstances it is well-established that it is not necessary for the accessory to have knowledge of every detail of the crime intended to be committed. Knowledge of the intention to commit a crime of the type intended is sufficient. For example, in R v Bainbridge [1960] 1 QB 129 the defendant purchased oxy-cutting equipment on behalf of thieves who later used it to break into an office. It was not necessary to prove that the 212 R v Rich (1997) 93 A Crim R 483 at 497 (Cox J). 213 R v Rich (1997) 93 A Crim R 483 at 520-521 (Bleby J, Williams J agreeing). -- 74 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 71 defendant knew the date and location of the proposed break-in. That approach was endorsed by the House of Lords in R v Maxwell [1978] 1 WLR 1350. The High Court in Giorgianni specifically noted that it was not concerned in that case with the question whether knowledge of an intention to commit the type of offence was sufficient and indeed referred to Bainbridge in that context: See Gibbs CJ (ibid) at 481; Wilson, Deane and Dawson JJ at 505-506. That the approach taken in cases like Bainbridge had survived Giorgianni's case can be seen from Ancuta (1990) 49 A Crim R 307, per Lee J at 312-313 and Bruce v Williams (1989) 46 A Crim R 122 per Priestley JA at 129. In my opinion, it was therefore not necessary for the Crown to have to establish knowledge on the part of Rich that in respect of each count he knew that a certain amount had been deposited in the account in the name of the particular client, that it had been entrusted to Hynes for a particular purpose, that at the time of signing the cheques he knew that those cheques would be applied for purposes other than those specified by the client or that particular misappropriation was being undertaken by Hynes dishonestly. It was sufficient that at the time of signing the cheques he knew and did not merely suspect that Hynes intended to commit an offence or offences of the kind described in the various counts. 318 Whilst Bleby J referred to the accessory having knowledge that the principal intended to commit the acts constituting an offence,214 there is no suggestion in his Honour’s reasons that Giorgianni required proof of knowledge by the accessory that he would, or was going to, commit those acts. 319 As mentioned, what we have suggested is the proper understanding of what was decided in Giorgianni, is also supported by the views subsequently expressed by Kourakis CJ in R v B, FG.215 Having considered the principles governing accessorial liability, and their relationship with the principles governing liability by reason of a joint enterprise, his Honour cited Giorgianni as authority for the proposition that accessorial liability requires that the accessory have knowledge of all of the essential circumstances which make the principal’s conduct culpable. His Honour explained that knowledge of the essential circumstances was necessary because, as the plurality judgment in Giorgianni explained, without it an intention to assist or encourage conduct which will constitute an offence would be absent. He explained that in Giorgianni, in the absence of knowledge of the defective condition of the prime mover, there was nothing criminal in the proposed journey of the driver.216 320 Kourakis CJ then addressed the issue of the foresight required by the accessory, stating that:217 214 cf R v Golding & Edwards (2008) 100 SASR 216 at [46] (Gray J, Doyle CJ and David J agreeing), where it was held that knowledge of this intention on the part of the principal was not a requirement of accessorial liability. 215 R v B, FG (2012) 114 SASR 170. 216 R v B, FG (2012) 114 SASR 170 at [26] (Kourakis CJ). 217 R v B, FG (2012) 114 SASR 170 at [27] (Kourakis CJ). -- 75 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 72 … something less than certain knowledge that the principal will commit the offence is sufficient. In R v Rich218 Cox J pointed out that a person who facilitates an offence could never know in “an absolute sense” that the principal will commit the offence.219 The question in such a case may be whether the alleged accessory intends to facilitate conduct that in the known circumstances constitutes, or if engaged in the future will constitute, an offence.220 321 Whilst Kourakis CJ’s reasons might be read as supporting some contemplation by the accessory, short of knowledge, that the principal would commit an offence,221 his Honour did not accept that knowledge by the accessory that the principal would, or was going to, commit an offence was a requirement of accessorial liability. 322 With respect, we agree with the observations of Cox J and Kourakis CJ as to the proper understanding of Giorgianni, and the elements of accessorial liability. Giorgianni was concerned with whether knowledge was required of a fact (the defective nature of the brakes) that was essential to the criminal nature of the principal’s contemplated conduct. It was not concerned with knowledge of the likelihood (indeed, certainty) that the principal will engage in that conduct, and hence is not authority for the proposition that accessorial liability requires knowledge that the principal was going to, or would, engage in that conduct. 323 Correspondingly, the statements in Giorgianni to the effect that recklessness will not suffice to establish accessorial liability are to be understood as statements to the effect that recklessness (as opposed to knowledge) as to the existence of facts essential to the criminal nature of the principal’s contemplated conduct will not suffice. They are not to be understood as statements to the effect that recklessness as to whether the principal would engage in that conduct will not suffice. 324 In short, Giorgianni does not support any requirement of knowledge (as opposed to recklessness) that the principal was going to, or would, engage in the contemplated conduct. The fault element of accessorial liability is confined to a requirement that the accessory intend that the principal engage in that conduct, knowing the essential facts and circumstances that make that conduct an offence. 325 As Cox J pointed out in R v Rich, there would be a practical difficulty with requiring knowledge that the principal will “in an absolute sense”, or with certainty, engage in the relevant conduct. Whilst the appellant acknowledges this difficulty, she contends that it is adequately addressed by expanding the requirement to encompass not only knowledge, but also belief, that the principal will engage in the relevant conduct. We are not persuaded that this fully addresses the difficulty. Further, and in any event, requiring this knowledge or belief would result in what we would regard as an unexpected limitation upon the scope of 218 R v Rich (1997) 68 SASR 390. 219 R v Rich (1997) 68 SASR 390 at 496-497 (Cox J). 220 R v Rich (1997) 68 SASR 390 at 497 (Cox J). 221 R v B, FG (2012) 114 SASR 170 at [28] (Kourakis CJ). -- 76 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 73 accessorial liability. In particular, if knowledge or belief at the time of the encouragement that the principal would, or was going to, commit the acts constituting the offence were to be required, then accessorial liability would not extend to the accessory who encourages an undecided principal to commit those acts (intending that the principal do so). Indeed, it would not even extend to cases where the accessory provides encouragement knowing or believing that the principal was likely to, or would probably, commit those acts. Whilst it is well accepted that an accessory’s encouragement need not be causative of the principal’s commission of the offence, to confine accessory liability in the manner contended for by the appellant would be to exclude those cases where the encouragement was causative. 326 It is also difficult to see the relevance to the accessory’s culpability of the requirement of knowledge or belief contended for by the appellant, and hence its appropriateness as an element of accessorial liability. The gravamen or culpability of accessory offending lies in the accessory intending to assist or encourage commission of an offence by the principal. In the words of Wilson, Deane and Dawson JJ in Giorgianni,222 it lies in the accessory providing assistance or encouragement “intentionally aimed at the commission of acts which constitute” the contemplated offence. 327 There would, in our view, be something awkward, if not incoherent, about requiring proof of both (a) an intention that the principal commit acts knowing the facts and circumstances that would make those acts an offence, and (b) knowledge or belief that the principal will commit those acts. At the very least the two overlap. In our view, the relevance of the knowledge or belief in (b) is confined to its evidential significance to proof of (a). 328 If the alleged accessory knows or believes the principal is going to commit the acts, then this may assist in inferring the relevant intention from their words or acts of encouragement. Conversely, if the alleged accessory has no knowledge or belief that the principal will (or even might) commit the acts, then this may make it more difficult to draw an inference of intention that the principal commit those acts. But acknowledging this potential evidential significance of the alleged accessory’s knowledge or belief as to the likelihood the principal will commit the acts is not to give it the status of an additional requirement or element of accessorial liability. In our view, Giorgianni does not give it that status, and it does not have that status. 329 It is to be acknowledged that there is authority for the appellant’s argument in Blundell v The Queen.223 In that case, the deceased was murdered by a Mr Fuller, and the appellant was convicted as an accessory before the fact by reason of the encouragement and assistance he gave to Mr Fuller. N Adams J (with whom Payne JA and Johnson J agreed) held that the trial judge erred in failing to direct 222 Giorgianni v The Queen (1985) 156 CLR 473 at 506 (Wilson, Deane and Dawson JJ). 223 Blundell v The Queen (2019) 279 A Crim R 302. -- 77 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 74 the jury in terms that required proof that the appellant knew that Mr Fuller was going to intentionally inflict grievous bodily harm upon the deceased, and that made it plain that it was insufficient that the appellant was reckless as to this matter (in the sense that he realised that Mr Fuller may possibly intentionally inflict grievous bodily harm upon the deceased).224 330 In so concluding, her Honour relied upon the italicised sentence from the reasons of Wilson, Deane and Dawson JJ in Giorgianni225 addressed earlier in these reasons.226 However, as we have already endeavoured to explain, the focus of this sentence was the requirement of knowledge of facts (including the contemplated conduct by the principal) that would amount to an offence, not knowledge that the principal was going to, or would, engage in that conduct. We do not think that Giorgianni is authority for any fault element for accessorial liability beyond the requirement that the accessory intended that the principal engage in conduct knowing the essential facts and circumstances that make that conduct an offence. 331 As a decision of an intermediate appellate court, the reasoning in Blundell v The Queen warrants deference as a matter of comity. However, as the reasoning in that case relates to the meaning to be given to the reasons of the High Court in Giorgianni,227 it does not attract the heightened deference contemplated in Farah Constructions Pty Ltd v Say-Dee Pty Ltd.228 This Court is bound directly by what the High Court said in Giorgianni about the elements of accessorial liability; it is not bound indirectly by another court’s interpretation of what the High Court said.229 332 It is accordingly not necessary for this Court to be satisfied that the reasoning in Blundell v The Queen is plainly wrong before departing from it. In circumstances where there is authority in this jurisdiction (particularly the decision of the Court of Criminal Appeal in R v Rich) which supports our understanding of the reasons of the High Court in Giorgianni, we consider it appropriate to apply that understanding. In any event, to the extent necessary, we are convinced that the relevant aspect of the reasoning in Blundell v The Queen is plainly wrong. In the terminology we would prefer to use, we are persuaded that there are compelling 224 Blundell v The Queen (2019) 279 A Crim R 302 at [206]-[215] (N Adams J, Payne JA and Johnson J agreeing). 225 Giorgianni v The Queen (1985) 156 CLR 473 at 504-505 (Wilson, Deane and Dawson JJ) (omitting citations). 226 Blundell v The Queen (2019) 279 A Crim R 302 at [207] (N Adams J, Payne JA and Johnson J agreeing). 227 In the sense that it involves an application of the reasoning in that case, rather than a development in the law relating to accessorial liability. 228 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [135] (the Court); as applied in Hasler v Singtel Optus Pty Ltd (2014) 87 NSWLR 609 at [92]-[93], [97]-[100] (Leeming JA, Gleeson JA agreeing) and Commonwealth Bank of Australia Kojic (2016) 249 FCR 421 at [149] (Edelman J, Allsop CJ and Besanko J agreeing). 229 Hasler v Singtel Optus Pty Ltd (2014) 87 NSWLR 609 at [98] (Leeming JA, Gleeson JA agreeing); Commonwealth Bank of Australia Kojic (2016) 249 FCR 421 at [149] (Edelman J, Allsop CJ and Besanko J agreeing). -- 78 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 75 reasons230 to follow our understanding of Giorgianni, as reflected most explicitly in the reasons of Cox J in R v Rich.231 333 For the reasons we have explained, the challenges made to the trial judge’s directions as to the fault element of Hinrichsen’s potential liability for murder as an accessory before the fact have not been made out. The judge’s directions accurately encapsulated that fault element. The errors the subject of the complaints in Grounds 1.1 and 1.2 have not been made out. 334 For completeness, we add that to the extent that some of the authorities in this area have referred to, or assumed, at least some contemplation by the accessory that the principal would, or intended to, commit the acts constituting the relevant offence232 – as opposed to knowledge that the principal would, or was going to, commit those acts – we consider that this is merely descriptive of the circumstances that would ordinarily give rise to accessorial liability, rather than indicative of some additional aspect of the fault element. It is indicative of the evidential significance of the contemplation to the element of intention, rather than some additional element. In any event, to the extent that it is necessary that the accessory at least contemplate that the principal would, or intended to, commit the acts constituting the relevant offence, we do not understand that to have been in issue in the present case. Certainly it is not the focus of the appellant’s complaint on appeal. Assuming, as we do, that the jury followed the directions they were given, we do not consider that they could have been satisfied that Hinrichsen was liable as an accessory without being satisfied that she at least contemplated (as opposed to knew or believed) that Skinner would, or was going to, intentionally kill, or cause grievous bodily harm to, the deceased. It follows that we are not satisfied that the directions given by the trial judge on this issue were erroneous or otherwise occasioned a miscarriage of justice. Grounds 1.3 & 1.5: relating directions on elements 2 and 3 to the facts 335 Grounds 1.3 and 1.5 both complain that the trial judge failed to adequately link her directions as to the law to the facts of the case. Ground 1.3 focuses upon a failure to identify the evidence relevant to the jury’s consideration of the second element of accessorial liability; Ground 1.5 focuses upon an equivalent failure in respect of the third element. In essence, the appellant’s complaint is that the judge did not identify the evidence relied upon by the prosecution to establish that Hinirchsen intentionally encouraged Skinner to commit acts, knowing (at the time 230 RJE v Secretary to the Department of Justice (2008) 21 VR 526 at [104] (Nettle JA); Gett v Tabet (2009) 109 NSWLR 1 at [301] (Allsop P, Beazley and Basten JJA); R v XY (2013) 84 NSWLR 363 at [30] (Basten JA). 231 R v Rich (1997) 93 A Crim R 483 at 496-497 (Cox J). 232 As to a contemplation that the principal “would” commit the acts, see for example, R v B, FG (2012) 114 SASR 170 at [28] (Kourakis CJ); see also the reference by Wilson, Deane and Dawson JJ in Giorgianni v The Queen (1985) 156 CLR 473 at 505 to “some crime must be in contemplation”. As to a contemplation that the principal “intended” to commit the acts, this reflects the language used by Bleby J (Williams J agreeing) in R v Rich (1997) 93 A Crim R 483 at 520-521 (Bleby J, Williams J agreeing); but see R v Golding & Edwards (2008) 100 SASR 216 at [46] (Gray J, Doyle CJ and David J agreeing). -- 79 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 76 of that encouragement) the facts and circumstances that would constitute the offence of murder. 336 The appellant acknowledges that the trial judge followed her directions as to the second and third elements with a summary of the facts relied upon. As recounted earlier, her Honour mentioned that the prosecution relied upon: the evidence of the deterioration of Hinrichsen’s marriage and her increasing desperation to be in a relationship with Skinner and to live with him; Hinrichsen’s text messages to Skinner (adding that, on the prosecution case, they showed her knowledge of Skinner’s plan to kill or inflict grievous bodily harm on the deceased and her encouragement to do so); and Hinrichsen’s statements after the earlier assault on the deceased on 26 November 2018. 337 However, the appellant complains that the generality of this summary was not sufficient; that the trial judge ought to have identified the particular text messages (out of the thousands that were in evidence) that were said to constitute the relevant encouragement, and to establish the requisite intention and knowledge on the part of Hinrichsen; that the judge’s summary was unhelpful because it included reference to evidence about events and communications that were earlier and more general in nature; and that this evidence might have been probative of some animosity or even some intention or knowledge of an assault by Skinner, but was not probative of an intention to encourage Skinner to murder the deceased on 15 December 2018. 338 It may be accepted that the focus of the prosecution case in relation to the second and third elements was a handful of text messages between Hinrichsen and Skinner during the evening of 14 December 2018, and that the trial judge did not specifically identify these text messages when directing the jury in relation to the second and third elements of Hinrichsen’s potential accessorial liability. However, there are four observations that may be made in response to the appellant’s complaint about the judge’s directions. 339 The first is that whilst these messages were ultimately the critical ones, they needed to be considered and understood in the context of the broader events, relationships and communications involving Hinrichsen, Skinner and the deceased. The judge was right to emphasise the breadth of the evidence relevant to the jury’s consideration of the second and third elements. The full context was, on the prosecution case, very significant in understanding the true import of the text messages exchanged by Hinrichsen and Skinner in the immediate lead up to the murder of the deceased. 340 Secondly, after summarising the prosecution evidence relied upon in respect of the second and third elements, the judge not only mentioned the defence response to that evidence, but also concluded with a passage intended to ensure that the jury remained focused upon those messages which amounted to encouragement to Skinner to murder the deceased on 15 December 2018. Her Honour directed the jury: -- 80 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 77 Members of the jury, I need to make something very clear to you. In respect of this alternative basis for murder, the acts of encouragement by Tanya Hinrichsen must be for Gavin Skinner to commit the alleged murder on 15 December 2018 and not some earlier event. Whilst her statements about earlier events might inform the meaning of other later communications to Gavin Skinner, you must find that her purported statements of encouragement to Gavin Skinner were to commit the alleged offence of murder on 15 December, rather than some other event, for this element of the offence to be proved. 341 Thirdly, to the extent that these directions did not provide the jury with adequate guidance in relation to the particular messages relied upon, the appellant’s complaint must nevertheless be assessed in light of the balance of the judge’s summing up. Having provided a general summary of the relevant prosecution evidence relied upon as establishing elements 2 and 3 immediately following her directions on the law,233 her Honour later gave a relatively detailed summary of the important aspects of that evidence.234 This more detailed summary included reference to the key messages relied upon by the prosecution both contextually, and as constituting encouragement with the requisite intention and knowledge. As to the latter, her Honour made it plain that the critical messages were those exchanged during the afternoon and evening of 14 December 2018 (being the messages from that date mentioned earlier in these reasons), and in particular Skinner’s reference to going on a “hunting spree” and Hinrichsen’s messages giving him permission and then continuing to express her desperation at her situation and her love for Skinner. 342 To have included the entirety of the judge’s summary of the key aspects of the evidence earlier in the summing up would have interrupted the flow of the legal directions, and may also have resulted in undesirable repetition given the relevance of this evidence to other issues in the case. And to have included earlier reference to just some of the relevant communications, without the context of some of the surrounding communications, might have risked a complaint as to the balance or fairness of the directions given. 343 Whilst the later summary of the evidence did not include specific reference back to the second and third elements of accessorial liability, we do not think the jury would have failed to appreciate the relevance of that evidence to those statements. And the directions given as to those elements, including in the aide memoire, would have left the jury in no doubt as to their task and focus when considering that evidence. Of course, the jury were also assisted in that task and focus by the submissions of both the prosecutor and counsel for Hinrichsen in relation to the critical messages in the course of their closing addresses, and the judge’s summary of the latter submissions towards the end of the summing up. These submissions made it plain that the focus of the case against Hinrichsen was the text messages exchanged with Skinner during the evening of 14 December 233 SU45. 234 SU52-78. -- 81 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 78 2018, but that they were to be understood in the context of the earlier communications and events. 344 Fourthly, it is of some relevance in determining whether the judge’s directions occasioned a miscarriage that trial counsel for the appellant did not make any complaint about this aspect of the judge’s directions. He did not make any complaint about a failure by the judge to link her directions on accessorial liability to the facts of the case. 345 In the circumstances, we are not satisfied that the appellant has identified any inadequacy in the directions challenged in Grounds 1.3 and 1.5. Ground 1.4: conduct capable of encouraging Skinner to murder the deceased 346 In Ground 1.4, the appellant complains that the trial judge failed to direct the jury that it had to be proved that the conduct by which she counselled or procured Skinner to murder the deceased was conduct that was capable of counselling or procuring Skinner to do that. 347 The appellant accepts that there is no requirement that the conduct relied upon by the prosecution as the relevant encouragement in fact encouraged Skinner to murder the deceased; that there is no requirement that the encouragement was causative of Skinner’s conduct in murdering the deceased. But the appellant contends that it was necessary to establish that the conduct was objectively capable of encouraging Skinner to murder the deceased. The appellant draws support for this contention from the reasons of Kourakis CJ in R v B, FG235 and N Adams J in Blundell v The Queen.236 348 In order to respond to this contention, it is appropriate to commence by addressing the rejection of a causal requirement in accessorial liability. 349 An argument that causal encouragement, or conduct which in fact encouraged the principal’s commission of the relevant offence, is an element of accessorial liability was rejected by the Victorian Court of Appeal in Likiardopoulos v R.237 The argument in favour of a requirement of causative encouragement in that case relied upon academic commentary, which in turn made reference to an English decision (Attorney-General’s Reference (No 1 of 1975)),238 differentiating between the concepts of “aid”, “abet” and “counsel” on the one hand, and “procure” on the other hand, suggesting that whilst the former did not require conduct that brought about any result, the latter species of accessorial liability stood apart as requiring a causal connection. 235 R v B, FG (2012) 114 SASR 170 at [30] (Kourakis CJ). 236 Blundell v The Queen (2019) 279 A Crim R 302 at [176], [184]-[186] (N Adams J, Payne JA and Johnson J agreeing). 237 Likiardopoulos v R (2010) 30 VR 654 at [103]-[112] (Buchanan, Ashley and Tate JJA). 238 Attorney-General’s Reference (No 1 of 1975) [1975] QB 773 at 780 (Widgery CJ). -- 82 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 79 350 In rejecting this argument, the Court pointed out that in Australia the words “aid, abet, counsel or procure” had been held to convey a single, composite concept. As the Court recognised, this approach to accessorial liability had been confirmed by the High Court in Giorgianni. It was most clearly reflected in the reasons of Mason J in that case, in which his Honour had rejected the approach taken in Attorney-General’s Reference (No 1 of 1975) and confirmed that the terms “aid, abet, counsel or procure” are descriptive of a single concept. 239 The Court held that even if a dictionary meaning of “procure” might suggest a causal effect, to give the word that meaning in the present context would be contrary to the unity conveyed by the verbs “aid, abet, counsel or procure”. The Court drew support for this conclusion from the earlier decision of the Victorian Court of Appeal in R v Lam.240 351 The suggestion of a causal requirement was also rejected by the New South Wales Court of Criminal Appeal in Blundell v The Queen.241 352 Turning to the passages from the authorities relied upon by the appellant in the present case as nevertheless supporting a requirement that the encouragement provided by the accused be objectively capable of promoting the commission of the relevant crime, the first comes from the reasons of Kourakis CJ in R v B, FG:242 There is inconsistent authority on the causal relationship between the accomplice’s conduct and the commission of the offence that is necessary to establish accessorial liability.243 Leaving aside cases in which procurement is alleged, it appears to be sufficient to show that the conduct was calculated, in an objective sense, to promote the commission of the offence. It is unnecessary to enquire into the extent, if any, that the principal was subjectively influenced by the conduct.244 353 The appellant in the present case relies upon the second sentence from these obiter observations. In our view, there are difficulties with relying upon this sentence. Not only is it unsupported by authority, but also the first sentence leaves open the issue of whether the alleged accomplice’s conduct must be causative of the principal’s commission of the offence, when that question appears to us to have been resolved in the negative. To the extent that his Honour’s second sentence was drawn from, or based upon, those authorities which have suggested some basis for a causal requirement, or otherwise assumes some remnant of a causal 239 Giorgianni v The Queen (1985) 156 CLR 473 at 492-493 (Mason J). 240 R v Lam (2008) 185 A Crim R 453 at [89] (Buchanan, Vincent and Kellam JJA), drawing upon the reasoning below (R v Lam (2005) 159 A Crim R 448 at [45]-[62], [77]-[78] (Redlich J). 241 Blundell v The Queen (2019) 279 A Crim R 302 at [164]-[182] (N Adams J, Payne JA and Johnson J agreeing). 242 R v B, FG (2012) 114 SASR 170 at [30] (Kourakis CJ). 243 See generally K J M Smith, ‘Complicity and Causation’ (1986) Criminal Law Review 663; White v Ridley (1978) 140 CLR 342 at 351 [10]–[12] per Gibbs J, at 353–354 [4]–[6] per Stephen J; Lenzi v Miller [1965] SASR 1 at 14 per Bright J; Attorney Generals reference (No. 1 of 1975) [1975] QB 773 at 780 per Widgery CJ; Attorney General v Able [1984] 1 QB 795 at 812 per Woolf J; Howell v Doyle [1952] VLR 128 at 134 per Herring CJ. K J M Smith, A Modern Treatise on the Law of Criminal Complicity (Clarendon Press, 1991) 78–93. 244 R v Ready [1942] VLR 85 at 88–89 per Mann CJ on behalf of the Court. -- 83 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 80 requirement, its soundness as a proposition governing accessorial liability in Australia may be questioned. 354 That said, it may be that his Honour did not intend to go as far as to suggest some form of objective causal requirement. Rather, the second sentence of his Honour’s observations may be understood as suggesting no more than a basal requirement that the alleged accessory have engaged in conduct (words or actions) properly characterised as encouragement or assistance. If that is what his Honour meant, then – as elaborated upon below – we have no difficulty with his Honour’s observations. 355 The appellant also relied upon the observations of N Adams J in Blundell v The Queen.245 The relevant observations were made in a passage of her Honour’s reasons addressing, and rejecting, an argument to the effect that the judge failed to direct the jury that it was necessary that the accessory in fact encouraged the principal; that it was necessary that the accessory’s words or actions had some causative effect upon the principal’s commission of the relevant offence.246 356 In the course of rejecting any such causal requirement, N Adams J acknowledged that something more than mere assent, acquiescence or approval was required, even when accompanied by presence. There must be some intentional words or act of encouragement or assistance:247 The use of the phrases ‘linked in purpose’ and doing something to ‘render more likely’ the commission of the offence referred to in Phan refer to the necessary mental element and do not lend support to any general proposition that there must be proof of causation as contended by the appellant. The words were used by his Honour to distinguish between mere assent by presence as opposed to presence accompanied by some intentional act of assistance or encouragement. Applying the principles derived from Phan to the present matter, it was necessary for the Crown to establish beyond reasonable doubt that the appellant’s ‘encouragement’ amounted to more than mere approval of the crime. It had to be established beyond reasonable doubt that the appellant’s words constituted intentional encouragement or assistance (Phan at [69] and [78]). The reference by Smart AJ to the requirement that ‘the accused assisted or encouraged’ the co-accused (at [115]), is also a reference in that context to a requirement that the accessory do an act capable of encouraging or assisting accompanied by an intention to encourage or assist. A direction was not given in these terms by Hall J. 245 Blundell v The Queen (2019) 279 A Crim R 302 at [176], [184]-[186] (N Adams J, Payne JA and Johnson J agreeing). 246 Blundell v The Queen (2019) 279 A Crim R 302 at [164]-[182] (N Adams J, Payne JA and Johnson J agreeing). 247 Blundell v The Queen (2019) 279 A Crim R 302 at [175]-[176] (N Adams J, Payne JA and Johnson J agreeing). -- 84 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 81 357 Having noted a difficulty with the trial judge’s directions, her Honour returned to this issue at the conclusion of the relevant passage of her reasons. Her Honour said:248 Although I am not satisfied that, in cases where the accused is said to have ‘encouraged’ the primary offender, the Crown must prove that the primary offender was actually encouraged by the accused’s words or actions, I am nonetheless satisfied that the written direction in MFI 14 should have been explained to the jury in the context of what the jury did have to be satisfied of beyond reasonable doubt. While the jury was instructed that it had to be satisfied beyond reasonable doubt that there was intentional encouragement of Mr Fuller, that direction did not form part of the written directions in MFI 12. Nor was the jury instructed at any stage as to the meaning of encouragement or that the words of the appellant had to be capable of encouraging Mr Fuller. In assessing whether the direction was inadequate, it is relevant to note that the Crown Prosecutor at the trial requested that the direction at point 1 of MFI 14 be given because, as he said, ‘it rebuts, if that is the right word, the contention … the submission by [defence counsel] of this opportunistic, that what was done was done as a result of a number of unforeseen circumstances. It goes to that aspect.’ Although I am satisfied that the Crown does not need to establish beyond reasonable doubt that the principal offender was in fact encouraged, the fact that the Crown sought this direction to close off an aspect of the defence case illustrates why it was incumbent upon the trial judge to balance this direction with a direction as to the meaning of encouragement and that the words of the appellant had to be capable of encouraging Mr Fuller to inflict grievous bodily harm upon the deceased. In these circumstances, although I am not satisfied that any additional element needs to be proved in a case of accessory before the fact to the extent of any causation, I am satisfied that the relevant directions in this matter concerning the element of encouragement/assistance were inadequate in the way described above at [176], [184] and [185]. 358 It is thus to be acknowledged that N Adams J made reference to a requirement that the conduct of the alleged accessory be capable of encouraging the principal to commit the relevant crime. However, the detail and context of her Honour’s observations in this respect are significant. Having rejected any requirement that the accessory’s conduct had a causal effect, her Honour was plainly concerned that the jury nevertheless understood the need to establish words or actions of encouragement, as opposed to mere assent or acquiescence, or conduct which was otherwise neutral in nature. It was in this context that her Honour considered it significant both that the trial judge’s written directions did not include reference to her oral direction requiring intentional encouragement, and that the trial judge did not at any stage give any directions at all in relation to the meaning of encouragement or to the effect that the words of the alleged accessory had to be capable of encouraging the principal. 359 To the extent that N Adams J’s observations are to be understood as importing some general requirement that the alleged accessory’s conduct have 248 Blundell v The Queen (2019) 279 A Crim R 302 at [184]-[186] (N Adams J, Payne JA and Johnson J agreeing). -- 85 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 82 some objective causal significance, in the sense that it be objectively capable of encouraging the principal to commit the contemplated offence, we would not be inclined to follow her Honour’s approach. In our view, such an approach sits uncomfortably with the authorities to which we have referred which have endorsed a single concept of accessorial liability, without any causal requirement. It would be to introduce an element of accessorial liability not mentioned in Giorgianni. 360 However, bearing in mind her Honour’s express disavowal of any intention to recognise an additional element of causation, we are not persuaded that N Adams J’s reasons are properly to be understood as importing any general requirement that the alleged accessory’s conduct have some objective causal significance, in the sense that it be objectively capable of encouraging the principal to commit the relevant offence. In our view, her Honour was making the more limited observation that, in the circumstances of that case, the jury was not adequately directed as to the need to be satisfied that the alleged accessory’s words were properly characterised as words of encouragement, as opposed to words of assent or acquiescence or otherwise of a more neutral character. They were not told anything about what was meant by encouragement, and this omission was exacerbated by the failure to include reference to the requirement of intentional encouragement in the written directions. 361 This understanding of her Honour’s reasons is consistent with the acknowledgment by counsel for the appellant in the present case that a direction of the kind contemplated by N Adams J may not be required in every case alleging accessorial liability; that it may not be necessary in cases where the trial judge has adequately identified the words or actions of the alleged accessory said to constitute assistance or encouragement, and has provided some guidance as to what assistance or encouragement connotes. 362 In our view, the directions of the trial judge in the present case were adequate. As explained in the context of addressing Grounds 1.3 and 1.5, the jury was provided with adequate guidance as to the particular conduct (text messages) of Hinrichsen relied upon by the prosecution. They would have understood from the directions they were given that it was necessary for them to be satisfied that this conduct was properly characterised as encouragement to commit the relevant offence, and what encouragement meant in this context. As explained earlier, the judge directed the jury, both orally and in writing, that it was necessary for the prosecution to establish that Hinrichsen intentionally counselled or procured (or, in other words, intentionally encouraged), Skinner to murder the deceased. Her Honour added that intentionally encouraging included advising, urging or persuading a person to commit the contemplated crime; and that it was not sufficient that Hinrichsen merely agreed with the commission of that offence. 363 In this way, the trial judge adequately instructed the jury as to the requirement that the prosecution establish conduct by the alleged accessory that was properly characterised as encouragement to commit the relevant crime. We do not think the -- 86 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 83 trial judge erred, or otherwise occasioned a miscarriage of justice, by not directing the jury that that conduct had to be objectively capable of having that effect. Ground 1.7: withdrawal of encouragement 364 In Ground 1.7, the appellant contends that the trial judge erred by failing to direct the jury that it had to be proved that she had not withdrawn or countermanded her encouragement to Skinner to murder the deceased; that it had to be proved that her encouragement had not been nullified, or become spent, by the time the deceased was murdered. 365 The respondent accepts that it is a requirement of accessorial liability that the alleged accessory’s encouragement not be withdrawn or spent, but says that there was no error in the trial judge’s failure to direct on this issue because it did not form part of the defence case, and there was not otherwise a basis on the evidence for it to be left to the jury as an issue. 366 In terms of what is required in order to establish any encouragement for the purposes of accessorial liability has been withdrawn, or become spent, the parties relied upon passages from the reasons of the High Court in White v Ridley,249 the Full Court of this Court in R v Sully250 (Vanstone J, Sulan and Anderson JJ agreeing) and Kourakis CJ in R v B, FG.251 As it contains a summary of the relevant passages from the first two of these decisions, it is convenient and sufficient to set out the following passage from the reasons of Kourakis CJ in R v B, FG:252 … The common law has long accepted that a withdrawal of support may exculpate an accessory but has insisted that a mere change of mind is not sufficient. In Stephen’s Digest of the Criminal Law, it is stated that an accessory before the fact who countermands the execution of the crime before it is committed “ceases to be an accessory before the fact”.253 The limitation of the principle to accessories before the fact is telling because it discounts the possibility that someone who actually aids the commission of the offence at the scene can do enough to countermand the offence, short of successfully stopping the principal from committing it at all. The principle laid down in Stephen’s Digest of the Criminal Law is rooted in much older authority. It is stated in Hale’s Pleas of the Crown that if the accessory “actually countermands his order, and the principal notwithstanding commits the felony, the original contriver will not be an accessory”.254 249 White v Ridley (1978) 140 CLR 342. 250 R v Sully (2012) 112 SASR 157. 251 R v B, FG (2012) 114 SASR 170. 252 R v B, FG (2012) 114 SASR 170 at [31]-[40] (Kourakis CJ). 253 H Stephen and H L Stephen (eds), A Digest of the Criminal Law (Indictable Offences) (Sweet and Maxwell, 7th ed, 1926) 47–48. 254 M Hales, Emlyn, G Wilson, and T Dogherty, Hale’s History of the Pleas of the Crown (E Rider, A New Edition, 1800) Vol 1, 618. -- 87 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 84 In the fourth edition of Russell on Crime, the discussion of the liability of accessories before the fact includes the following:255 A commands B to kill C but before the execution thereof repents and countermands B yet B proceeds in the execution thereof; A is not accessory, for his consent continues not, and he gave timely countermand to B but though A had repented, yet if B had not been actually countermanded before the fact committed, A had been accessory. In more recent times the question of the exoneration of an accomplice by countermand was considered by the High Court in White v Ridley.256 Gibbs J held that to be effective the countermand must satisfy two conditions. First, it must be sufficiently clear to indicate to the principal offender that the accused no longer intends the offence to be committed.257 Secondly, the accused must do or say whatever is reasonably possible to counteract the effect of the earlier conduct.258 Stephen and Aiken JJ held that the withdrawal must effectively nullify the previous assistance or encouragement.259 Murphy J held that the accused must do what he can to prevent the commission of the offence.260 In R v Jensen261 the Supreme Court of Victoria held that to escape liability “a party must communicate his withdrawal to the other parties, or at all events take some other positive step, such as informing the police”.262 Very recently Vanstone J gave close consideration to this issue in R v Sully.263 After a survey of the authorities, Vanstone J concluded: 264 What will suffice in terms of withdrawal from a joint enterprise or from a situation which a defendant has counselled and procured or aided and abetted a crime will vary markedly from case to case. It will involve an assessment of what was reasonable and practical in the circumstances. The more the defendant has done by way of planning or providing information or items to enable completion of the crime, the more is likely to be required of him by way of withdrawal or countermand, if he is to avoid criminal responsibility. In some cases, particularly where the participation or aiding and abetting is spontaneous, withdrawal by leaving the scene, especially when coupled with advice or other indication to those who remain of the abandonment, or with the effluxion of time, might be sufficient. However, with respect to those who have expressed a contrary view, I do not agree that there is any distinction in point of principle between cases where there is a pre-existing agreement to commit the crime and cases of spontaneous participation, such as by aiding and abetting. It is a matter of fact and degree. Therefore I do not consider that Mitchell & King and O’Flaherty should be followed in this Court. Also, while there might seem to be a degree of incongruence in introducing questions of causation to an aiding and abetting situation, it seems clear that withdrawal could be 255 C S Greaves (ed), A Treatise on Crimes and Misdemeanors (Maxwell and Son, 4th ed, 1865) Vol 1, 63 citing M Hales, Emlyn, G Wilson, and T Dogherty, Hale’s History of the Pleas of the Crown (E Rider, A New Edition, 1800) Vol 1, 617. 256 White v Ridley (1978) 140 CLR 342. 257 White v Ridley (1978) 140 CLR 342 at 351 [10] per Gibbs J. 258 White v Ridley (1978) 140 CLR 342 at 351 [10] per Gibbs J. 259 White v Ridley (1978) 140 CLR 342 at 358 [20] per Stephen J with Aiken J concurring at 363 [1]. 260 White v Ridley (1978) 140 CLR 342 at 363 [4] per Murphy J. 261 R v Jensen [1980] VR 194. 262 R v Jensen [1980] VR 194 at 201 per Young CJ, McInerney and Newton JJ (the Court). 263 R v Sully (2012) 112 SASR 157. 264 R v Sully (2012) 112 SASR 157 at 178 [75] per Vanstone J. -- 88 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 85 demonstrated where the secondary party’s encouragement has been “spent”, even where there was no communication. I respectfully adopt the views expressed in that passage. I need make only the following brief observations. … Secondly, I do not see any incongruity in applying a causation test when considering the sufficiency of a countermand by the accessory because, as I earlier observed, an effective countermand operates to exonerate conduct which would otherwise be culpable. The countermand must nullify the effect of the facilitation if it is to exonerate the accused. There is therefore no incongruity between the rule that it is not necessary to prove that the accessory’s conduct actually facilitated the commission of the offence, and the rule that an accessory must do everything he or she can to nullify the effect of the assistance previously given. The legal significance of a countermand is not in its effect on the mens rea of the accessory. Rather, the common law regards subsequent conduct that sufficiently nullifies the actus reus, the previously given assistance, as a supervening exculpatory event. Nonetheless, it is for the prosecution to prove, if an accused satisfies the evidential onus, that the accessory’s previous assistance was not nullified. 367 Whilst the trial judge did not give any directions in relation to any encouragement by Hinrichsen being withdrawn or nullified, or becoming spent, this was in a context where the defence case at trial was that Hinrichsen did not ever encourage Skinner to murder the deceased. Defence counsel did not ever contend, in terms, that any encouragement that was given was withdrawn; and neither defence counsel nor the prosecutor requested or suggested that the judge give any directions on this topic. 368 It may be accepted that a trial judge’s obligation is to direct a jury on only so much of the law as is necessary for the jury to determine the real issues in the case.265 It will thus be relevant to have regard to any forensic decisions made by counsel in a trial that impact upon what issues are in dispute. 369 However, the above is subject to a general obligation on the part of a trial judge to direct on all defences properly raised; that is, in respect of which the defendant has discharged his evidential burden. As French CJ, Crennan and Kiefel JJ explained in Braysich v The Queen:266 In a trial by jury the issues of fact are decided by the jury "in the presence and under the superintendence of a judge empowered to instruct them on the law."267 It is an "elementary principle of the criminal law that unless express statutory provision to the contrary be made, the onus lies upon the Crown throughout to negative defences sufficiently raised."268 The 265 Alford v Magee (1952) 85 CLR 437 at 466 (Dixon, Williams, Webb, Fullagar and Kitto JJ); Huynh v The Queen (2013) 87 ALJR 434 at [31] (the Court); Perera-Cathcart v The Queen (2017) 260 CLR 595 at [53] (Kiefel, Bell and Keane JJ). 266 Braysich v The Queen (2011) 243 CLR 434 at [32] (French CJ, Crennan and Kiefel JJ). 267 Cesan v The Queen (2008) 236 CLR 358 at 390 [103] per Gummow J; [2008] HCA 52, citing Capital Traction Co v Hof 174 US 1 at 13-14 (1899). 268 King v The Queen (2003) 215 CLR 150 at 168 [52] per Gummow, Callinan and Heydon JJ; [2003] HCA 42. -- 89 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 86 authority and responsibility of the judge to instruct the jury on questions of law requires the judge "to put to the jury every lawfully available defence open to the accused on the evidence even if the accused's counsel has not put that defence and even if counsel has expressly abandoned it."269 370 As their Honours later added,270 the evidential onus upon a defendant to raise a defence requires that he point to evidence which, taken at its highest in favour of the defendant, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence had been negatived. 371 Withdrawal of encouragement is not, strictly speaking, a defence to accessorial liability. It is more accurately categorised as a factual matter which negates a finding of the requisite encouragement. However, it seems to us that analogous considerations apply. As the High Court said in Huynh v The Queen,271 whether an omission to instruct on a particular aspect of an element of liability involves error will depend upon whether it was an issue at trial. 372 Accordingly, if the issue properly arose on the evidence – in the sense that there was evidence which, taken at its highest in favour of the defendant, could lead a reasonable jury to conclude that the prosecution had not excluded, as a reasonable possibility, that any encouragement by Hinrichsen had been withdrawn or nullified, or become spent – then the judge ought to have given the jury directions in relation to this possibility. 373 In considering the evidence said to give rise to the possibility of Hinrichsen having withdrawn her encouragement to Skinner to murder the deceased, the starting point is that the focus of the evidence said to establish encouragement was Hinrichsen’s text message at 6.10pm on 14 December 2018 in which she responded to Skinner’s text message suggesting that he was ready to go on a “hunting spree” by saying that “if it’s to do him then I’ll give you my permission”. This text exchange was close to 12 hours before the deceased was killed. 374 In support of the possibility that any encouragement in this text message exchange was subsequently withdrawn or nullified, or became spent, the appellant relies upon the following matters: • at about 12.05am on 15 December 2018, Hinrichsen and Skinner attended the Christies Beach police station and Hinrischsen discussed with Probationary Constable Coden how she could leave the deceased to live with Skinner. Hinrichsen said that she and Skinner had to find a place, and that she was thinking of leaving the furniture in the house for the time being; • at 12.29am, Skinner sent a text message to Hinrichsen saying “come in, need to discuss, might have a place”. This appears to have been a reference to 269 Fingleton v The Queen (2005) 227 CLR 166 at 198 [83] per McHugh J (footnote omitted); [2005] HCA 34, and see Pemble v The Queen (1971) 124 CLR 107 at 117-118 per Barwick CJ; [1971] HCA 20. 270 Braysich v The Queen (2011) 243 CLR 434 at [36] (French CJ, Crennan and Kiefel JJ). 271 Huynh v The Queen (2013) 87 ALJR 434 at [31]-[32] (the Court). -- 90 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 87 Rachel Thrupp’s offer to allow her father, Skinner and Hinrichsen to live together at her house. On the defence case, this was significant because Hinrichsen’s unhappiness, and motive to encourage Skinner to murder the deceased, was said to stem from her inability to live with Skinner. Rachel Thrupp’s offer removed the need for Hinrichsen to have the deceased vacate her current home; • the evidence of subsequent discussions between Rachel Thrupp, her father, Skinner and Hinrichsen about going to get some of her belongings and other items from Nathan Court; • the evidence that later that night, Rachel Thrupp, her father, Skinner and Hinrichsen travelled in Hinrichsen’s car to Nathan Court and collected some of Hinrichsen’s clothes and other belongings. Rachel Thrupp’s evidence was that, while they were at Nathan Court, she heard Skinner verbally “going off” at the deceased; that she asked Hinrichsen whether she wanted her to go down and stop Skinner going off at the deceased, and Hinrichsen said yes; and that she then went down and told Skinner to leave the deceased alone. In other words, there was evidence that Hinrichsen told Rachel Thrupp to discourage Skinner from going off at the deceased; and • the evidence that they then drove back to Astrid Street, whereupon Hinrichsen lay down on the couch and went to sleep. 375 On the basis of this evidence, the appellant submits that there was a sufficient evidentiary foundation for the jury to have been directed that the prosecution was required to prove beyond reasonable doubt that any encouragement by Hinrichsen for Skinner to murder the deceased had been withdrawn or nullified, or become spent, by the time of the murder. It may be added that whilst defence counsel did not contend in terms that any encouragement had been withdrawn, the defence case did encompass a related submission to the effect that whether Hinrichsen did in fact encourage Skinner fell to be assessed in the context of the evidence highlighted above, and as at the time Hinrichsen went to sleep in the early hours of 15 December 2018. 376 By way of elaboration, defence counsel addressed on the basis that the high point of the prosecution case on encouragement was the ‘hunting spree’ exchange of text messages shortly after 6.00pm on 14 December 2018.272 He suggested that the jury might consider that Hinrichsen’s text was just a ‘throw away line’ rather than encouragement. However, defence counsel went on to ask “but what else do we know?”, before then addressing in some detail the evidence as to the further communications and events over the hours that followed. This culminated in submissions to the effect that the jury might consider that, by about 2.00am when Hinrichsen went to sleep on the couch at Astrid Street, she had achieved her “desired solution” of being able to get on with her relationship with Skinner by 272 T1372. -- 91 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 88 staying with Rachel Thrupp; that she went to sleep thinking that it was “job done” and that there was “nothing to see”.273 Defence counsel then expressly canvassed the possibility that despite Hinrichsen thinking that there was “nothing to see” (that is, that nothing was going to happen), Skinner and Thrupp nevertheless went and killed the deceased for reasons of their own; effectively suggesting that they might have done so on a frolic of their own. Importantly, defence counsel concluded his address by emphasising the possibility that Hinrichsen did not counsel, procure or encourage whatever Skinner and Thrupp might have decided to do after she fell asleep.274 377 In summary, defence counsel did not ever disavow a case to the effect that any earlier encouragement was withdrawn or spent. Nor do we think that there is any basis to infer that defence counsel otherwise made a forensic decision not to pursue this issue. To the contrary, whilst he did not expressly embrace the terminology of any earlier encouragement being withdrawn or spent, by focusing upon the evidence as to the intervening events, and the requirement that any encouragement remain operative at the time Hinrichsen went to sleep, defence counsel pursued a case that called for consideration of the status of any encouragement as at the time Hinrichsen went to sleep. 378 We are conscious that, as the authorities summarised earlier make clear, withdrawal of encouragement involves more than a mere change of mind. It generally requires that the defendant do or say whatever is reasonably possible to counteract the effect of the earlier encouragement. However, as Vanstone J explained in R v Sully,275 there will also be circumstances where an accessory’s encouragement may become spent even without any communication. In any event, the issue for present purposes is not whether the evidence established that any earlier encouragement was withdrawn, or became spent. The issue is merely whether the evidence (summarised above), taken at its highest, could have led a reasonable jury to conclude that the prosecution had not excluded, as a reasonable possibility, that any encouragement by Hinrichsen had been withdrawn or nullified, or become spent. 379 It is significant that the alleged encouragement was focused upon a text message exchange that occurred almost 12 hours prior to the killing. Further, during the period between this exchange and the killing, not only did Hinrichsen and Skinner continue to communicate, both through text messages and then in person, but also circumstances changed. Hinrichsen and Skinner were together for a significant period of time in the middle of the night, during which time they not only went to the police station to discuss the possibility of Hinrichsen leaving her husband, but also received an offer from Rachel Thrupp of a place for them to stay, and travelled together to Nathan Court to collect some of Hinrichsen’s clothes and belongings. There was evidence to suggest that while they were at Nathan Court, 273 T1378-1379. 274 T1382. 275 R v Sully (2012) 112 SASR 157 at [75] (Vanstone J). -- 92 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 89 Hinrichsen asked Rachel Thrupp to discourage Skinner from ‘going off’ at the deceased. In summary, whilst there was no direct evidence of any particular communication that might have amounted to a withdrawal of any earlier encouragement, it seems to us that the evidence provided some reason to think that might have occurred, and every opportunity for it to have occurred. The evidence, taken at its highest, left open a possibility that such a communication occurred, or that events had otherwise moved on such that any earlier encouragement by Hinrichsen had become spent by the time she went to bed. 380 It is noteworthy that in the context of the prosecution case on joint enterprise liability, the trial judge instructed the jury that they needed to be satisfied that any agreement between Hinrichsen and Skinner to murder the deceased remained on foot. While withdrawal from an agreement for the purposes of joint enterprise liability is conceptually distinct from withdrawal of encouragement for the purposes of accessorial liability, the two concepts raise similar considerations. The evidence giving rise to the possibility of the former tends to give rise to the possibility of the latter. 381 The issue is finely balanced, and we are influenced by the fact that the parties did not request any direction in relation to withdrawal of encouragement, nor complain when it was not given. But we are ultimately satisfied that the issue did arise on the evidence, and so ought to have been left to the jury. In failing to give any directions on this issue the judge fell into error, or at least occasioned a miscarriage of justice. Ground 2: determination of whether Skinner murdered the deceased 382 In Ground 2, the appellant challenges the judge’s directions as to how the jury should decide whether Skinner murdered the deceased for the purposes of determining whether the appellant was guilty of murder as an accessory before the fact: 2. The learned trial Judge erred and a miscarriage of justice was occasioned by the failure to adequately direct the jury how to decide whether Skinner murdered the deceased for the purposes of whether the appellant was guilty of murder as an accessory before the fact. Particulars 2.1 The jury should have been directed that they must freshly consider whether it had been proved that Skinner murdered the deceased and must ignore any conclusion they reached about Skinner’s guilt of murder on the evidence admissible against him. 2.2 The jury should have been directed that they must decide if it had been proven that Skinner murdered the deceased using only the evidence that was admissible against the appellant. 2.3 The learned trial Judge’s direction that if the jury found Skinner not guilty of murder, they could not find the appellant guilty of murder as an accessory -- 93 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 90 before the fact, was misleading. It wrongly suggested that the jury’s verdict with respect to Skinner was relevant to whether it had been proven he murdered the deceased for the purposes of the appellant's guilt. 383 It was an element of the accessorial liability case against Hinrichsen that Skinner murdered the deceased. The judge told the jury this was an element of the accessorial liability against Hinrichsen. It was the first element in the judge’s summing up and aide memoire. Her Honour directed the jury:276 To commit the offence of murder as an accessory before the fact there are three elements the prosecution must prove beyond reasonable doubt in respect of the accused. These are, first, that someone committed the offence of murder. Obviously, a person cannot be an accessory to the commission of a crime if no crime is committed. You, therefore, need to decide whether the prosecution has proved that someone committed the offence of murder. However, members of the jury, in the particular circumstances of this case, if you were to find the accused Gavin Skinner not guilty of murder you could not find Tanya Hinrichsen guilty of murder as an accessory before the fact on this alternative basis of liability. 384 However, when directing the jury as to this first element, the judge did not instruct the jury that when they considered whether – for the purposes of this first element of Hinrichsen’s potential liability as an accessory before the fact – Skinner murdered the deceased, the jury was required to confine itself to the evidence admissible against Hinrichsen. The judge did not instruct the jury that it could not have regard, in this context, to the evidence admissible only against Skinner. In other words, the jury were not told that they were required to consider the issue of whether Skinner murdered the deceased twice, but on different evidential footings. When considering Skinner’s liability for murder, the jury was required to consider the issue having regard to all of the evidence admissible against Skinner; but when considering the issue in the context of the case in accessorial liability against Hinrichsen, they were required to consider the issue having regard to only the evidence admissible against Hinrichsen. 385 The appellant points to five categories of evidence (being out of court statements by Skinner or Thrupp) which she contends were not admissible against her: • the text and multimedia messages between Skinner and Thrupp’s mobile phones included within Exhibits P20 and P21; • verbal and implied admissions made by Skinner and Thrupp to Rachel Thrupp shortly after the murder; • evidence given by Varney about the conversation she overheard between Skinner and Thrupp which appeared to relate to the 16 November 2018 assault of the deceased; 276 SU44, noting that the directions in the aide memoire was in almost identical terms on this issue. -- 94 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 91 • the statement (and addendum statement) given by Thrupp to police on 15 December 2018 (Exhibit P54); and • the recording of Skinner’s police interview on 15 December 2018 (Exhibit P62). 386 We observe in passing that it seems to us that some of the text messages exchanged between Skinner and Thrupp (for example, Skinner’s message to Thrupp at 12.23am on 15 December 2018, in which he said “Want some fuuuuuuuuuuun”) may in fact have been admissible against Hinrichsen, as relevant to Skinner’s state of mind when it came to establishing, as against Hinrichsen, that Skinner murdered the deceased. However, the case was not conducted on that basis. The case was conducted on the basis that none of the above out of court statements by Skinner and Thrupp were admissible in the case against Hinrichsen. 387 The appellant accepts that the evidence admissible against Hinrichsen was capable of providing a basis for finding that Skinner murdered the deceased. But the appellant complains that, in the absence of any clear direction from the judge, there was a risk, if not likelihood, that the jury failed to appreciate that, for the purposes of determining whether Hinrichsen was liable as an accessory before the fact, they were required to consider the issue of whether Skinner murdered the deceased by reference only to the evidence admissible against Hinrichsen. The appellant complains that the judge’s failure to give any clear direction to this effect occasioned a miscarriage of justice. 388 The respondent accepts the legal or conceptual premise of the appellant’s argument; namely, that in order to make out the first element of Hinrichsen’s accessorial liability, the prosecution was required to establish that Skinner murdered the deceased on the evidence admissible against Hinrichsen. However, the respondent submits that the jury would have understood this requirement, and the nature of their task. 389 In developing this submission, the respondent points to the general direction by the trial judge to the effect that the jury needed to address the case against each accused by reference only to the evidence admissible against that accused, and to numerous subsequent directions to the effect that various items or categories of evidence were not admissible against one or more of the accused. 390 As to the need to consider the case of each accused separately, by reference only to the evidence admissible against that accused, the judge gave the following direction early in her summing up, immediately prior to her legal directions as to the elements of the various bases of potential liability for each accused:277 277 SU18. The trial judge gave a similar general direction at SU27 when addressing the accused’s potential liability pursuant to the principles of joint enterprise. -- 95 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 92 Members of the jury, before I leave these general directions there is one further direction I must give you. You have before you three accused charged with one offence of murder, and in the alternative, the offence of manslaughter. All of the evidence is not admissible against each accused. The evidence is, in fact, different for each accused. The basis for liability for murder for Tanya Hinrichsen is different to that for Gavin Skinner and Robert Thrupp. For those reasons, you must consider the case against each accused quite separately and only by reference to the evidence admissible against that particular accused. 391 Consistently with the above, when summarising the evidence, the judge referred on a number of occasions to certain items or categories of evidence only being admissible against one or two of the accused. This included directions to this effect in respect of each of the five categories of evidence referred to above. In relation to the text messages between Skinner and Thrupp, the judge said that “the few text messages between Gavin Skinner and Robert Thrupp are not admissible against Tanya Hinrichsen”.278 In relation to the statements made by each of Skinner and Thrupp to Rachel Thrupp shortly after the murder, the judge directed in each case that the statements were only admissible against their maker.279 In relation to Varney’s evidence of statements made by Skinner to Thrupp about the assault on 16 November 2018, the judge directed the jury that the conversation “is not admissible against Tanya Hinrichsen and it must not be used in the case against her.”280 In relation to Thrupp’s statements to police, the judge directed the jury that their contents were only admissible in the case against Thrupp and were not admissible in the case against Hinrichsen or Skinner.281 The jury were reminded of this direction.282 And in relation to Skinner’s record of interview, the judge introduced her summary of the interview by instructing the jury that its content was only admissible against Skinner, and not the other accused.283 392 As the respondent submitted, the starting point (when considering whether the judge’s directions were sufficient to ensure that the jury only had regard to the evidence admissible against Hinrichsen when considering the case against her) is that, as a general rule, the jury is assumed to understand and comply with the directions given by a trial judge.284 The respondent emphasises that directions are given to the jury as a corporate body, expecting that collectively it will understand its task, and approach its task in accordance with the directions it is given; and that diversity in age, background, education and experience provide assurance as to understanding and compliance by the whole. The respondent adds that, in the present case, the judge’s repeated directions to the effect that particular items or categories of evidence were not admissible against all accused would have had a cumulative effect. In other words, each time the judge gave a direction to that effect, it would have reinforced earlier similar directions, and hence reinforced the 278 SU51. 279 SU83-84. 280 SU87. 281 SU113. 282 SU155. 283 SU155. 284 Gilbert v The Queen (2000) 201 CLR 414 at [13] (Gleeson CJ and Gummow J). -- 96 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 93 need to consider the case against each of the accused separately and by reference only to the evidence admissible against that accused. On the basis of the above, the respondent submits that there was no reason to think that the jury would not have followed the judge’s directions regarding the limitations upon its use of the out of court statements of Skinner and Thrupp. 393 We accept that, generally speaking, the jury would have understood and followed the judge’s directions regarding the limitations upon its use of the out of court statements of Skinner and Thrupp, and would have confined their attention to the evidence admissible against Hinrichsen when considering the case against her. 394 However, the issue is whether this would have carried through to the jury’s consideration of the first element of the case in accessorial liability against Hinrichsen (namely, that Skinner murdered the deceased). There is reason to think that different considerations may have applied in relation to the jury’s consideration of this element. Whilst an element of the case against Hinrichsen, it required consideration of the liability of Skinner. Further, it required consideration of the liability of Skinner in circumstances where Skinner was a co-accused in the same trial, and hence where the same issue arose in the case against him. It seems to us that there was an inherent risk that the jury might not have realised that they needed to consider the issue of whether Skinner murdered the deceased twice, but on two different evidential footings. There was an inherent risk that, having reached a verdict of guilty in the case against Skinner, the jury would have treated this verdict as satisfaction of the first element of the accessorial liability case against Hinrichsen, without appreciating the need to reconsider the issue but by reference only to the evidence admissible as against Hinrichsen. 395 Further, it seems to us that the judge’s directions in relation to this first element inadvertently exacerbated the risk of this occurring. As set out above, the judge concluded her brief directions in relation to this first element by saying to the jury that if they were to find Skinner not guilty of murder, they could not find Hinrichsen guilty of murder as an accessory before the fact. This direction went close to directing the jury that their verdict in the case against Skinner was determinative of the first element of Hinrichsen’s accessorial liability. Whilst her Honour was addressing the significance of a not guilty verdict, there is a risk that her Honour’s direction may have lulled the jury into thinking that it was sufficient for them to treat their verdict of guilty against Skinner as establishing the first element of Hinrichsen’s accessorial liability. 396 In summary, we are persuaded that there is a real risk that the jury overlooked the need to confine their consideration of the first element of the accessory liability case against Hinrichsen to the evidence admissible against her. We are persuaded that the judge’s directions occasioned a miscarriage of justice. -- 97 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 94 Grounds 2A, 2B & 2C: directions on joint criminal enterprise 397 In Grounds 2A, 2B and 2C, the appellant challenges the trial judge’s directions in relation to her potential liability for murder as a party to a joint criminal enterprise with Skinner to kill or cause grievous bodily harm to the deceased: 2A. The learned trial Judge erred in leaving to the jury the pathway of convicting the appellant of murder on the basis that she had been a party to a joint criminal enterprise with Skinner to kill or cause grievous bodily harm to the deceased. 2B. The learned trial Judge erred in law in directing the jury (SU25-26) to the effect that if one or more of Skinner and Thrupp committed the acts which caused the deceased’s death, Hinrichsen would be guilty of murder on the basis of the principles of joint enterprise if she had, at that time, been a party to an understanding or arrangement with Skinner alone to kill or cause grievous bodily harm to the deceased. 2C. The learned trial Judge erred by failing to direct the jury that because the prosecution case was that there were separate joint criminal enterprises between Skinner and Thrupp and Skinner and Hinrichsen, it could only find Hinrichsen guilty of murder according to joint criminal enterprise principles if it was satisfied beyond reasonable doubt that physical acts done by Skinner caused the deceased’s death. 398 As outlined earlier in these reasons, the prosecution case in joint enterprise against Skinner and Thrupp was that they were parties to an agreement or arrangement between the two of them to kill or cause grievous bodily harm to the deceased. The prosecution case in joint enterprise against Hinrichsen, on the other hand, was that she and Skinner were parties to an agreement or arrangement between the two of them to kill or cause grievous bodily harm to the deceased. The prosecution case in joint enterprise against Hinrichsen did not include any allegation that she was party to any agreement with Thrupp. 399 The trial judge introduced her directions in relation to joint enterprise by identifying the two separate agreements relied upon by the prosecution:285 On the prosecution case Tanya Hinrichsen was not present when any of the fatal wounds were inflicted, nor did she inflict any physical injury to the deceased that night which contributed to his death. The prosecution case is that together Gavin Skinner and Robert Thrupp inflicted the fatal wounds to the deceased upon their return to the Nathan Court premises as captured by the closed-circuit television footage. However, the prosecution cannot say who of Gavin Skinner and Robert Thrupp inflicted which wound. Accordingly, the prosecution case is that Tanya Hinrichsen and Robert Thrupp were each party to an agreement or arrangement with Gavin Skinner to kill or cause grievous bodily harm to the deceased, and each accused participated in that agreement. Tanya Hinrichsen did so by intentionally providing her house keys to Gavin Skinner and in that way giving him access to the deceased, and Gavin Skinner and Robert Thrupp did so by inflicting the 285 SU19-20. See also SU25. -- 98 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 95 fatal wounds between them or being present as part of an agreement to kill or cause grievous bodily harm whilst the other did so. 400 Her Honour outlined the four elements of joint enterprise liability for murder:286 The legal elements are as follows: first, the prosecution must prove that the accused entered into an agreement with one or more other person to commit the offence of murder, that is, the accused entered an agreement to commit an unlawful act or acts against the deceased with the intention of causing his death or grievous bodily harm and the acts do cause his death. Secondly, that the accused participated in the agreement. Thirdly, while the agreement was on foot, one or more parties to the agreement committed the acts necessary to constitute the offence of murder. Fourthly, at the time the accused participated in the agreement, she or he had the state of mind required to commit the offence, that is, an intention to kill or cause grievous bodily harm to the deceased. 401 The trial judge then expanded upon each of these elements, linking them to the evidence and arguments relevant to both alleged agreements and joint criminal enterprises. In expanding upon the third element, the judge directed the jury in orthodox terms, requiring that a party to the relevant agreement commit the offence of murder, whilst also emphasising the requirement that the acts be committed in accordance with the agreement:287 The third element the prosecution must prove is that while the agreement was on foot one or more parties to the agreement committed the acts necessary to commit the offence of murder. There are three parts to this element of the offence. The first part is that the agreement remained on foot. Secondly, that in accordance with the agreement a party to the agreement performed the acts necessary to commit the offence of murder. And, thirdly, the acts must have been committed in accordance with that agreement. 402 While these were orthodox directions in relation to joint enterprise liability for murder, the appellant complains that they overlooked the unusual feature of the case in joint enterprise against her; namely, that she was party to an agreement with Skinner, but in circumstances where the prosecution case was that Skinner then murdered the deceased pursuant to an agreement with Thrupp, and in circumstances where the prosecution could not say whether it was Skinner, Thrupp or both of them who inflicted the wounds that caused the deceased’s death. 403 While the evidence of the forensic pathologist, Dr Heath, was that there were not less than 65 wounds inflicted, she could not say in what order the wounds were inflicted. Her evidence allowed for the possibility that the injuries she numbered 1 and 2 – which comprised two stab wounds to the chest, lungs and heart – had of themselves, or combined with each other, caused the death of the deceased.288 The appellant argues, and it does not appear to have been in dispute at trial or on appeal, that it could not be excluded as a reasonable possibility that Thrupp alone physically inflicted the injuries which caused the deceased’s death. 286 SU27, reflecting the four elements described in the aide memoire. 287 SU36. 288 T733. -- 99 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 96 404 The difficulty which the appellant contends arose relates to the third element of joint enterprise liability. Emphasising that liability by reason of a joint enterprise involves direct or primary liability, making the defendant liable as a principal, the appellant contends that it requires proof that one or more of the parties to the relevant agreement did all of the things necessary to constitute the offence of murder.289 The appellant contends that where it is reasonably possible that acts constituting the offence murder were committed by a person who was not a party to the relevant agreement (here, Thrupp), then that is not sufficient to ground joint enterprise liability. 405 Grounds 2A, 2B and 2C each rely upon variants of this contention. Ground 2A involves a contention that, in circumstances where the prosecution could not exclude the reasonable possibility of Thrupp having committed the acts necessary to constitute the murder of the deceased, joint criminal enterprise should not have been left as a pathway for convicting Hinrichsen of murder. In the alternative, Grounds 2B and 2C involve a contention that the judge erred in law in directing the jury that it was sufficient that one or more of Skinner and Thrupp committed the acts that caused the deceased’s death; and in failing to direct the jury that they could only find Hinrichsen guilty of murder by way of joint criminal enterprise if they were satisfied beyond reasonable doubt that Skinner alone committed the acts causing the deceased’s death. 406 The appellant accepts that the issue raised by these grounds of appeal was not raised at trial. It appears to have been overlooked by trial counsel and the judge. However, as the appellant contends, and the respondent accepts, because the issue is one which relates to a legal limitation upon the liability of an accessory, it is appropriate that this Court address the issue. 407 The respondent does not accept the legal premise of Grounds 2A, 2B and 2C. The respondent does not accept that joint enterprise liability requires that the parties to the agreement personally do all of the things physically necessary to constitute the relevant crime. The respondent contends that it is sufficient that the parties do, or cause to be done, everything necessary to constitute the relevant crime. On the respondent’s argument, the focus is upon the killing occurring in accordance with the agreement between the parties. Thus, as long as the deceased was killed in accordance with the agreement between Hinrichsen and Skinner, it does not matter that Skinner may have enlisted the assistance of Thrupp to carry out some or all of the physical acts necessary to kill the deceased. 408 In McAuliffe v The Queen,290 the High Court described the basis for liability for participation in a joint criminal enterprise in the following terms:291 The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be 289 Citing McAuliffe v The Queen (1995) 183 CLR 108 at 114 (the Court). 290 McAuliffe v The Queen (1995) 183 CLR 108. 291 McAuliffe v The Queen (1995) 183 CLR 108 at 113-114 (the Court). -- 100 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 97 described as a joint criminal enterprise. Those terms – common purpose, common design, concert, joint criminal enterprise – are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime. 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.292 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.293 Not only that, but each of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose. … [I]n accordance with the emphasis which the law now places upon the actual state of mind of an accused person, the test has become a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose.294 (emphasis added) 409 The appellant relies upon the sentence we have italicised from this passage of the Court’s reasons. Taken literally, it requires that one or other of the parties to the relevant understanding or arrangement “does, or they do between them … all things which are necessary to constitute the crime”. 410 It is true that this general description of the basis for liability for participation in a joint criminal enterprise has been applied in numerous subsequent decisions, including decisions of the High Court.295 411 That said, in reciting the basis for joint enterprise liability set out in McAuliffe v The Queen, the High Court has not always included reference to a requirement that the acts necessary to constitute the crime be committed by a party to the agreement. The focus has been more on the crime that is the object of the agreement being committed while the agreement remains on foot, and in 292 See Giorgianni v The Queen (1985) 156 CLR 473. 293 cf R v Lowery and King [No 2] [1972] VR 560 at 560, per Smith J. 294 See R v Johns [1978] 1 NSWLR 282 at 287-290, per Street CJ. 295 For example, Gillard v The Queen (2003) 219 CLR 1 at [10] (Gleeson CJ and Callinan J), [31] (Gummow J), [108]-[112] (Hayne J); Clayton v The Queen (2006) 81 ALJR 439 at [3] (Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ); R v Taufahema (2007) 228 CLR 232 at [6] (Gleeson CJ and Callinan J); Huynh v The Queen (2013) 87 ALJR 434 at [37] (the Court); Miller v The Queen (2016) 259 CLR 380 at [3]-[4] (French CJ, Kiefel, Bell, Nettle and Gordon JJ); IL v The Queen (2017) 262 CLR 268 at [61] (Bell and Nettle JJ); Mitchell v The King (2023) 97 ALJR 172 at [13]-[14] (Kiefel CJ), [54] (Gordon, Edelman and Steward JJ). -- 101 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 98 accordance with that agreement. This is not to suggest that the description of joint enterprise liability we have extracted from McAuliffe v The Queen is no longer authoritative. Rather, it is merely to emphasise that the passage extracted above should not be approached as though it were a statute. 412 For example, in Miller v The Queen,296 French CJ, Kiefel, Bell, Nettle and Gordon JJ articulated the basis for joint enterprise liability in the following terms:297 The law, as stated in McAuliffe, is that a joint criminal enterprise comes into being when two or more persons agree to commit a crime. The existence of the agreement need not be express and may be an inference from the parties’ conduct. If the crime that is the object of the enterprise is committed while the agreement remains on foot, all the parties to the agreement are equally guilty, regardless of the part that each has played in the conduct that constitutes the actus reus.298 (emphasis added) 413 More recently again, in Mitchell v The King,299 Kiefel CJ summarised the principles governing joint enterprise liability in the following terms:300 The principle or doctrine of joint criminal enterprise, or common purpose, establishes the complicity of a secondary party in the commission of a crime. As explained in McAuliffe v The Queen,301 it applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal enterprise.302 Unlike the liability of accessories such as aiders or abettors, which is based on their contribution to the crime, the wrong in a joint criminal enterprise lies in the mutual embarkation on a crime with the awareness that an incidental crime may be committed in carrying out the agreement.303 Each of the parties to a joint criminal enterprise is equally guilty of the crime that is the object of the enterprise and which is committed, so long as the agreement to commit it (which may be express or inferred) remains on foot. That is so regardless of the part each has played in its commission. Each party is also guilty of any other offence ("the incidental offence") which is committed by a co-venturer that is within the scope of the agreement. The incidental offence will be within the scope of the agreement to commit the first-mentioned crime if the parties contemplate its commission as a possible incident of the execution of their agreement.304 414 In the same case, Gordon, Edelman and Steward JJ offered the following summary:305 296 Miller v The Queen (2016) 259 CLR 380. 297 Miller v The Queen (2016) 259 CLR 380 at [4] (French CJ, Kiefel, Bell, Nettle and Gordon JJ). 298 McAuliffe v The Queen (1995) 183 CLR 108 at 114 per Brennan CJ, Deane, Dawson, Toohey and Gummow JJ; Johns v The Queen (1980) 143 CLR 108; Macklin’s Case (1838) 2 Lewin 225 [168 ER 1136 per Alderson B. 299 Mitchell v The King (2023) 97 ALJR 172. 300 Mitchell v The King (2023) 97 ALJR 172 at [13]-[14] (Kiefel CJ). 301 McAuliffe v The Queen (1995) 183 CLR 108. 302 McAuliffe v The Queen (1995) 183 CLR 108 at 113. 303 Miller v The Queen (2016) 259 CLR 380 at 398 [34]. 304 McAuliffe v The Queen (1995) 183 CLR 108 at 114; Miller v The Queen (2016) 259 CLR 380 at 388 [4]. 305 Mitchell v The King (2023) 97 ALJR 172 at [54] (Gordon, Edelman and Steward JJ). -- 102 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 99 The doctrine of joint criminal enterprise or common enterprise is based on agreement (also expressed as common purpose, design, or enterprise). Whether the agreement is expressed in words or inferred "from the parties' conduct", each party to an agreement to commit a crime will be guilty of the agreed crime and any crime "within the scope of the agreement".306 It is therefore essential to identify what acts and omissions the parties agreed upon.307 The agreement need not be express and may be an inference drawn from the parties' conduct,308 but it must be subjectively appreciated by the accused.309 The scope of such an agreement has therefore been expressed as involving matters that each party subjectively considered. In this respect, "it is essential to identify what the parties did agree upon and what it was that each contemplated might occur",310 which requires consideration of whether each party contemplated the criminal acts "as a possible incident of the execution of their agreement".311 But the jury must be satisfied that each party subjectively agreed (authorised or assented) to the conduct, including the criminal act. Hence, the "true position" for nearly two centuries has been that "if one of the [parties to the agreement] goes beyond what has been tacitly agreed as part of the common enterprise, [the other party] is not liable for the consequences of that unauthorised act".312 415 Further, other passages in the authorities have tended to emphasise that the wrong or culpability in the case of a party to a joint criminal enterprise lies in the mutual embarkation upon a joint enterprise with the awareness that a crime may be committed in executing that agreement;313 or in the participation in the joint criminal enterprise with the necessary foresight.314 416 Joint enterprise liability requires, of course, that the contemplated crime be committed. But the emphasis in the authorities has generally been upon that crime being committed in accordance with the agreement between the parties, or within the scope of that agreement. The authorities have not tended to focus upon, or provide any elaboration upon, the reference in McAuliffe v The Queen to the parties to that agreement between them doing all of the acts necessary to constitute the contemplated crime. 417 It may be accepted that joint enterprise liability will most commonly arise in situations where the parties to the relevant agreement do physically perform all of the acts necessary to constitute the contemplated crime. However, we are not persuaded that joint enterprise liability is necessarily confined to that situation. There seems to us to be no reason why it would not extend to a situation where one of the parties to the agreement, rather than physically performing the relevant 306 Miller v The Queen (2016) 259 CLR 380 at 388 [4]. See also McAuliffe v The Queen (1995) 183 CLR 108 at 114; Gillard v The Queen (2003) 219 CLR 1 at 36 [111]. 307 Gillard v The Queen (2003) 219 CLR 1 at 39 [124]. 308 Miller v The Queen (2016) 259 CLR 380 at 388 [4]. 309 McAuliffe v The Queen (1995) 183 CLR 108 at 114. 310 Gillard v The Queen (2003) 219 CLR 1 at 39 [124] (emphasis in original). 311 Miller v The Queen (2016) 259 CLR 380 at 388 [4]. 312 R v Anderson [1966] 2 QB 110 at 118-119. See also R v Collinson (1831) 4 Car & P 565 at 566 [172 ER 827 at 828]; R v Pearce (1929) 21 Cr App R 79 at 80-81; R v Lovesey [1970] 1 QB 352 at 356. 313 Miller v The Queen (2016) 259 CLR 380 at [34] (French CJ, Kiefel, Bell, Nettle and Gordon JJ); Clayton v The Queen (2006) 81 ALJR 439 at [20] (Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ). 314 Miller v The Queen (2016) 259 CLR 380 at [135] (Keane J); Gillard v The Queen (2003) 219 CLR 1 at [19] (Gleeson CJ and Callinan J), [31] (Gummow J), [112] (Hayne J). -- 103 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 100 acts himself, enlists the assistance of a third party, or otherwise causes a third party, to perform one or more of those acts. As long as that occurs in a manner that falls within the scope of the parties’ agreement, then extending liability to this situation would be consistent with the wrong or culpability inherent in joint enterprise liability. 418 Joint enterprise liability will often be founded upon an agreement which is very general in its terms. For example, A and B may agree that B will assault the victim with an intention to kill him. A may not know anything of the precise mechanism by which B will do so. He may not know whether B will use a weapon or other instrument to carry out the contemplated crime or, if so, what weapon or other instrument he will use. However, as long as A participates in the joint criminal enterprise, and B kills the victim in accordance with their agreement, that will suffice to establish liability for murder on the part of A. As long as the killing occurs in accordance with the parties’ (general) agreement, it does not matter that A did not know the detail of the mechanism, weapon or instrument involved in the killing. 419 Analogously with the above, it is not obvious to us why it should matter if, in the above example, rather than using a weapon or instrument that A had not specifically contemplated, B used or caused another person to assist him to carry out the agreed killing. As long as the killing nevertheless occurs in accordance with the agreement between A and B (that is, within the scope of the joint enterprise) – which may involve issues of fact and degree – then it would not seem to us to matter that a third party has become involved. If the agreement between A and B is not specific as to the means by which B intends to kill or cause grievous bodily harm to the victim, then it may well encompass B enlisting the assistance of another person to carry out the relevant acts. 420 To come at the issue another way, consider a scenario where A and B agree that B will shoot the victim with the intention of killing him. A participates by providing B with access to the victim (for example, by providing B with the keys to the victim’s house). Assume further that B enlists the assistance of a hitman who fires the fatal shot. If A was aware of B’s intention to use a hitman, and indeed knew the identity of the hitman, there may be circumstances in which the hitman could be considered a party to the agreement with A and B. In those circumstances, there would be no issue arising out of the fact that the hitman was responsible for the physical act involved in killing the victim. 421 However, assume A was aware of B’s intention to use a hitman, but knew nothing about the identity of that person and had no dealings with that person. It seems to us that it would be straining principle to suggest that A was a party to any agreement with the hitman; yet it also seems to us difficult to see why the rationale for, and culpability underpinning, joint enterprise liability would not extend to such a situation. A has participated in a joint enterprise with B to murder the victim, in circumstances where that crime has been committed in accordance with the agreement between the parties. It seems unlikely that the involvement of a -- 104 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 101 third party in the physical acts necessary to constitute the crime would operate to excuse A from joint enterprise liability. 422 Assume then a third scenario, where A and B agree that B will arrange or cause the victim to be shot with an intention that he be killed, but without any specificity as to how that will occur. Assume B uses a hitman to carry out the shooting. Again, it is difficult to see how the hitman could be considered a party to any agreement with A. Yet, it would seem that, once again, A has participated in a joint enterprise to murder the victim, in circumstances where that murder was committed in accordance with the agreement between the parties. It is difficult to see how the culpability of A differs in the three scenarios posited, and hence why the principles of joint enterprise liability would not extend to each. 423 To take one further example, assume A and B agree that B will kill the victim by poisoning him. Assume that A participates by providing assistance (for example, by supplying the poison). Assume further that B prepares a poisoned drink, but arranges for that drink to be served to the victim by a third party. It may be accepted that B is liable as a principal for the murder of the victim, even though he used another person to carry out one of the acts necessary to commit the murder. It is sufficient that he did, or caused to be done, the acts necessary to kill the victim. There is no need to invoke concepts of joint enterprise or agency between B and the person who served the drink.315 It is difficult to see why A would not also be responsible by reason of the principles of joint enterprise, despite the involvement of a third party in committing the acts necessary to kill the victim. 424 In response to arguments of this type, and to the respondent’s submission that it is enough that the parties do, or cause to be done, the acts necessary to constitute the contemplated crime, the appellant makes two points. 425 The first is to point out that the involvement of a third party in the commission of the crime does not mean that person A in the above examples would not be criminally responsible in some way. He might, for example, be liable for conspiracy to murder. Whilst we accept the general relevance of other potential heads of criminal responsibility, we are not persuaded that this is a significant consideration when attempting to determine the limits of joint enterprise liability. That task requires a focus upon the rationale for, and culpability intended to be addressed by, joint enterprise liability, and what the authorities say about this. 426 The second is to emphasise that joint enterprise liability is a form of primary liability that operates by attributing the acts committed by a party within the scope of the relevant agreement to all of the other parties to the agreement. As liability is dependent upon attribution of the acts of the other parties, then, on the appellant’s argument, all relevant acts must be performed by those parties. 315 O’Dea v Western Australia (2022) 96 ALJR 710 at [56] (Gordon, Edelman and Steward JJ). -- 105 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 102 427 The operation of joint enterprise as a form of primary liability, involving the attribution of acts of others, was emphasised by the High Court in IL v The Queen,316 and subsequently in the reasons of Gordon, Edelman and Steward JJ in Mitchell v The King:317 Joint criminal enterprise is a principle of primary liability based on a form of agency.318 The acts of the perpetrator that are within the scope of the agreement, and therefore done with the authority of the other parties, are attributed to the other parties to the agreement. That is, "if several persons act together in pursuance of a common intent, every act done in furtherance of such intent by each of them is, in law, done by all".319 It is in this sense that joint criminal enterprise is a form of primary liability: all parties are liable as principals in the first degree because those persons who do not physically perform the acts are acting in concert and have the relevant mens rea. Accordingly, the liability of each party is not derivative, but primary.320 Hence, all those things done "in accordance with the continuing understanding or arrangement ... which are necessary to constitute the crime" are attributed to all parties to the agreement and "they are all equally guilty of the crime regardless of the part played by each in its commission".321 428 In both IL v The Queen322 and Mitchell v The King,323 reliance was placed upon the following passage from the reasons of McHugh J in Osland v The Queen324 in concluding that joint enterprise liability involved primary liability:325 Where the parties are acting as the result of an arrangement or understanding, there is nothing contrary to the objects of the criminal law in making the parties liable for each other’s acts and the case for doing so is even stronger when they are at the scene together. If any of those acting in concert but not being the actual perpetrator has the relevant mens rea, it does not seem wrong in principle or as a matter of policy to hold that person liable as a principle in the first degree. Once the parties have agreed to do the acts which constitute the actus reus of the offence and are present acting in concert when the acts are committed, the criminal liability of each should depend upon the existence or non-existence of mens rea or upon their having a lawful justification for the acts, not upon the criminal liability of the actual perpetrator. So even if the actual perpetrator of the acts is acquitted, there is no reason in principle why others acting in concert cannot be convicted of the principal offence. They are responsible for the acts (because they have agreed to them 316 IL v The Queen (2017) 262 CLR 268 at [29] (Kiefel CJ, Keane and Edelman JJ), [103] (Gageler), [146]- [148] (Gordon J), relying upon Osland v The Queen (1998) 197 CLR 316, in particular at [93] per McHugh J (“They are responsible for the acts (because they have agreed to them being done) and they have the mens rea which is necessary to complete the commission of the crime”). 317 Mitchell v The King (2023) 97 ALJR 172 at [55] (Gordon, Edelman and Steward JJ). 318 IL v The Queen (2017) 262 CLR 268 at 282 [29], 311 [103], 323-324 [146]-[149]; O'Dea v Western Australia (2022) 96 ALJR 710 at 721 [55]; 403 ALR 200 at 212-213. See also Kadish, “Complicity, Cause and Blame: A Study in the Interpretation of Doctrine” (1985) 73 California Law Review 323 at 354; Dressler, “Reassessing the Theoretical Underpinnings of Accomplice Liability: New Solutions to an Old Problem” (1985) 37 Hastings Law Journal 91 at 110-111. 319 Macklin’s Case (1838) 2 Lewin 225 at 226 [168 ER 1136 at 1136]. 320 Osland v The Queen (1998) 197 CLR 316 at 350 [93]. See also at 383 [174], 413 [257]; IL v The Queen (2017) 262 CLR 268 at 283 [30], 284-285 [34], 287 [40], 297 [66], 299-300 [74], 311 [103], 323 [146]. 321 McAuliffe v The Queen (1995) 183 CLR 108 at 114. 322 IL v The Queen (2017) 262 CLR 268 at [146]-[148] (Gordon J). 323 Mitchell v The King (2023) 97 ALJR 172 at [55] (Gordon, Edelman and Steward JJ). 324 Osland v The Queen (1998) 197 CLR 316. 325 Osland v The Queen (1998) 197 CLR 316 at [93] (McHugh J). -- 106 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 103 being done) and they have the mens rea which is necessary to complete the commission of the crime. (emphasis added) 429 Once again, the key seems to be that what was done was done in accordance with the relevant agreement, or within the scope of the relevant joint enterprise. The criminal law will attribute a defendant with criminal responsibility for acts committed within the scope of the relevant agreement or joint enterprise. This is consistent with the later reference in the reasons of Gordon, Edelman and Steward JJ in Mitchell v The Queen to the principle of primary liability in joint enterprise cases “stemming from the agreement” and being “dependent upon the scope of the agreement”.326 Understood in this way, we do not think that the primary nature of joint enterprise liability, and in particular its operation through the attribution of acts of others, is a basis for impugning our earlier analysis. It is not a basis for confining the attribution of acts to acts of other parties to the relevant agreement, as opposed to acts committed within the scope of that agreement. 430 In summary, we are satisfied that it is sufficient to establish joint enterprise liability that the defendant agrees with another to commit a crime, and then participates with the state of mind required to commit that offence. If the crime is then committed while that agreement remains on foot, and within the scope of that agreement, then the defendant is liable for that crime. We are not satisfied that it is necessary that a party to the agreement physically commit each and every act necessary to constitute that crime. As long as the crime is committed in accordance with, or within the scope of, the parties’ agreement, then criminal responsibility lies. The defendant may thus be liable for the agreed crime, even if another party caused or enlisted a third party to carry out one or more of the necessary acts. 431 On this view of the law, no error has been established in the trial judge’s directions. Whilst her Honour did not make specific reference to the potential involvement of Thrupp, there was no error in her Honour failing to tell the jury that they could not find Hinrichsen liable if it was a reasonable possibility that Thrupp perpetrated one or more of the acts that caused the deceased’s death. It was enough that the judge directed the jury in clear terms that they had to be satisfied beyond reasonable doubt that the deceased was killed in accordance with the agreement between Hinrichsen and Skinner. 432 In so concluding, we take into account that we do not think there was any reason to doubt that Hinrichsen would have contemplated that Skinner might enlist the assistance of Thrupp in carrying out whatever plan might have been agreed between Hinrichsen and Skinner. As mentioned earlier, Hinrichsen knew that Skinner had enlisted Thrupp’s assistance in carrying out the 16 November 2018 assault of the deceased, and she knew that Thrupp was in Skinner’s company in the hours before the killing. The issue in this case was whether there was an agreement between Hinrichsen and Skinner to murder the deceased, not whether 326 Mitchell v The King (2023) 97 ALJR 172 at [61] (Gordon, Edelman and Steward JJ). -- 107 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 104 Hinrichsen contemplated that Thrupp might have been involved in the implementation of any such agreement. 433 For completeness, we add that we have reasoned above on the basis that it was not necessary that Skinner personally carry out all of the physical acts necessary to kill the deceased; that it was sufficient that he caused those acts to occur (for example, by enlisting the assistance of another), as long as that killing nevertheless occurred within the scope of the parties’ agreement. An alternative route to the same conclusion would be to reason that it was sufficient for the purposes of joint enterprise liability that Skinner committed, or was to be treated by the law as having committed, all of the physical acts necessary to kill the deceased. In circumstances where Thrupp’s involvement was pursuant to a joint enterprise with Skinner, the law would treat his acts as those of Skinner. However, consistently with the respondent’s submissions on appeal, we consider it preferable to approach the matter in accordance with our earlier reasoning. Ground 3: whether joint criminal enterprise was open on the evidence 434 In Ground 3, the appellant contends that it was not open to the jury to convict the appellant of murder on the basis she was a party to a joint enterprise with Skinner to murder the deceased: 3. A miscarriage of justice was occasioned, or alternatively the conviction is unreasonable, because it was left open to the jury to convict the appellant of murder on the basis she was a party to a joint criminal enterprise with Skinner to murder the deceased. Particulars 3.1 The appellant could only be convicted on this basis if it was proved beyond reasonable doubt that she participated in the joint criminal enterprise by doing an act which furthered the deceased’s murder. 3.2 The prosecution case was that the appellant participated in the murder by intentionally providing Skinner with her house key after Skinner, Thrupp, the appellant and Rachel Thrupp returned to Astrid Street, Christies Downs in the early hours of 18 December 2018. 3.3 There was no direct evidence that the appellant gave her house key to Skinner. 3.4 On the whole of the evidence, it was not reasonably open for the jury to be satisfied beyond reasonable doubt that the appellant had intentionally provided her house key to Skinner, with the intention of furthering the commission of the murder of the deceased. 435 The first limb of the appellant’s argument under this ground was a submission to the effect that the element of participation327 in joint criminal enterprise requires a defendant’s physical presence whilst the acts constituting the crime are committed. As Hinrichsen was not present at Nathan Court when the deceased 327 See, for example, Huynh v The Queen (2013) 87 ALJR 434 at [37]-[38] (the Court). -- 108 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 105 was killed, she submits that it was not open to find that she participated in a joint criminal enterprise to murder the deceased. 436 The appellant described her submissions in support of a requirement of presence as ‘formal’, acknowledging the existence of authority against the submission, including intermediate appellate court authority and obiter observations of various members of the High Court. Those authorities include, and were conveniently summarised in, the decision of the New South Wales Court of Criminal Appeal in Dickson v R.328 The appellant accepted that this Court should follow those authorities. Accordingly, having noted that the appellant wishes to preserve the point should there be an appeal to the High Court, we do not consider it necessary to say anything further as to this limb of the appellant’s argument. 437 The second limb of the appellant’s argument involved a challenge to the sufficiency of the evidence to establish her participation in any agreement to murder the deceased. She argued that the evidence that she participated in the execution of the joint criminal enterprise was so lacking that it was incapable of proving her participation. She further argued that the judge therefore erred, or occasioned a miscarriage of justice, by leaving joint enterprise liability to the jury. 438 At times, the appellant’s submissions in support of this limb of her argument strayed into a contention that a verdict of guilty on the basis of her participation in a joint enterprise to murder the deceased was unreasonable. However, because it is not possible to know whether the jury’s verdict of guilty against Hinrichsen was based upon accessorial liability or joint enterprise liability, we do not think this was the appropriate analytical framework for the argument. We intend to address the argument through the prism it was primarily argued, namely that the evidence of participation was so lacking that the issue of participation, and hence joint enterprise liability, ought not to have been left to the jury. 439 Hinrichsen’s alleged participation in a joint criminal enterprise with Skinner was left by the trial judge to the jury on the basis that she intentionally participated by giving Skinner her house keys to Nathan Court so as to give him access to the deceased. 440 It is to be accepted that there was no direct evidence that Skinner or Thrupp used a key to enter the house at Nathan Court when they returned there in the early hours of 15 December 2018. A conclusion that they did use a key depended upon an inference drawn from the absence of any sign of forced entry to the house, and an assumption or inference that the doors to the house were locked when Skinner and Thrupp returned there. It was relevant in this context to consider both the unlikelihood of the deceased himself letting Skinner and Thrupp into the house, and the statements by Hinrichsen in her record of police interview to the effect that she locked up when she left Nathan Court in the very early hours of 15 December 328 Dickson v R (2017) 94 NSWLR 476 at [41]-[52] (Bathurst CJ, Johnson and Fullerton JJ agreeing). -- 109 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 106 2018, and indeed that she took with her both her own key and the deceased’s key to the house. 441 The judge told the jury that it had to be proved that Hinrichsen gave Skinner her house keys or advised him where to find them.329 There was no direct or eyewitness evidence that she did either of these things. The prosecution case to this effect was circumstantial. As the appellant contends, it was necessary that the prosecution exclude every reasonable hypothesis consistent with innocence; that is, exclude as a reasonable possibility every other way in which Skinner might have gained access to the house key or to the house. 442 In addressing this issue, it is relevant to consider that there was evidence to the following effect: • Hinrichsen had previously given Skinner the house key, on the occasion of the 16 November 2018 assault of the deceased; • Hinrichsen’s house key was usually kept on a lanyard and key ring with, inter alia, her car key; • Hinrichsen used her house keys to open the front door of Nathan Court between about 12.30am and 1.30am on 15 December 2018 when she, Skinner, Thrupp and Rachel Thrupp drove there in her car and she collected some of her belongings; • Skinner then drove the four of them back from Nathan Court to Astrid Street in Hinrichsen’s car. The key ring with the car key and the house keys was in the ignition of the car at the time; and • Hinrichsen went to sleep back at Astrid Street, on a couch in the lounge room. 443 No witness gave evidence that they saw Hinrichsen’s keys after she returned to Astrid Street. In her police interview, Hinrichsen said that when she returned to Astrid Street, the keys were in her handbag which she left on the floor in the lounge room where she was sleeping. She used her house key to enter the house when she went there later in the morning of 15 December 2018 and found the deceased dead. 444 On the defence case, this left open the possibility that Skinner or Thrupp helped themselves to the keys. Indeed, Hinrichsen also said in her police interview that she noticed the position of the house keys on the key ring was different to usual.330 Even rejecting this implicit suggestion that someone had taken the house keys from her bag and then returned them, another possibility was that Skinner 329 SU32. 330 Noting that it can be inferred from the jury’s verdict that they did not accept at least some significant aspects of what Hinrichsen said during this interview. -- 110 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 107 might simply have retained the keys after driving the four of them back to Astrid Street earlier in the morning. 445 The evidence directly bearing upon access to the house keys fell to be assessed, of course, in the broader context of the evidence and case as to Hinrichsen’s liability for murder. This included the evidence, summarised earlier in these reasons, probative of her involvement in an agreement or arrangement with Skinner to kill or cause grievous bodily harm to the deceased, and of her knowledge of the location and physical vulnerability of the deceased during the early hours of 15 December 2018. 446 Having reviewed the evidence, we are satisfied that it was sufficient to sustain a finding beyond reasonable doubt that Hinrichsen gave Skinner the key or keys to Nathan Court so as to give him access to the deceased, and thereby participated in a joint enterprise with Skinner to murder the deceased. To the extent it is appropriate to adopt the terminology used when reviewing the unreasonableness or otherwise of a verdict, it cannot be said that the evidence was so lacking as to require that a reasonable juror entertain doubt as to Hinrichsen’s participation. 447 Ground 3 has not been made out. Ground 4: consciousness of guilt 448 In Ground 4, the appellant complains that the judge failed to adequately direct the jury in relation to the prosecution submissions to the jury about what the appellant told police about her house keys: 4. A miscarriage of justice was occasioned by the learned trial Judge’s failure to adequately direct the jury in relation to prosecution counsel’s submissions to the jury about what the appellant told police about her house keys. Particulars 4.1 The appellant told police she noticed on the morning after the murder occurred that her keys were placed differently on her key ring to how they usually were. 4.2 At the end of her closing address on 19 July 2021, prosecution counsel invited the jury to accept that this claim by the appellant was, “... a late desperate conniving attempt to distance herself from providing those house keys to Skinner and, therefore, from the truth of her involvement in this crime.” This submission clearly invited the jury to use the appellant’s lie as evidence of her consciousness of her own guilt and as an implied admission of guilt. 4.3 The issue with respect to the house keys was an indispensable intermediate fact in proof of the appellant's guilt. 4.4 The learned trial Judge summed up to the jury seven days later, on 26 July 2021. Other than a very brief general direction on lies (SU154) nothing was said in the summing up about the prosecutor’s closing submission to the jury. -- 111 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 108 449 As encapsulated in the particulars to this ground of appeal, the appellant complains that the trial judge occasioned a miscarriage by failing to give any directions that specifically addressed the risk that the jury might have understood the prosecutor’s impugned submission as inviting them to reason that what she said in her police interview about her house keys reflected a consciousness of guilt, or an implied admission of guilt. In order to address this submission, it is necessary to summarise what Hinrichsen said in her police interview about her house keys, the submissions made by the prosecutor in relation to the interview, and the judge’s directions in relation to the use to be made of any lies by Hinrichsen. 450 Hinrichsen was interviewed by police for a number of hours over the afternoon of 15 December 2018. During the course of that interview, she told police that when she, Skinner, Thrupp and Rachel Thrupp went to Nathan Court at about 11.30pm the previous evening, that she used her key to unlock the front door, and that when they left she locked the door. She said that when she returned to Nathan Court just after 9.00am that morning, the front door was locked. She had the front door keys on her key ring (along with other keys), and unlocked the door. She said that she thought her husband’s killer must have broken in, but could not work out how because she had her keys and everything was locked up. All keys were accounted for. 451 Later in the interview, Hinrichsen explained that upon her return from Nathan Court to Astrid Street in the very early hours of 15 December 2018, she had fallen asleep on the couch, with her handbag on the floor next to her. She said that her keys were in her handbag when she fell asleep, and they were in her handbag when she awoke the next morning. However, she added that, in the morning, before she left to check on her husband, she noticed that her keys were placed differently on her key ring.331 She said that she does not take her keys off her key ring. 452 Hinrichsen made clear that she was implying that someone must have taken her keys whilst she was asleep at Astrid Street, and used them to enter Nathan Court. She reasoned that this must have occurred because there was no sign of forced entry, and the screen door was left wide open, whereas the deceased, if alone, would have locked both the front door and front screen door.332 This was in a context where Hinrichsen acknowledged in the course of the interview that she had, on an earlier occasion, given Skinner and Thrupp her keys so that they could access Nathan Court to confront the deceased on 16 November 2018.333 453 The prosecutor delivered her closing address on Monday, 16 July 2021. It took the day. The last topic she addressed was Hinrichsen’s record of interview. She did so at some length. She commenced her submissions on this topic with the following:334 331 Transcript of Exhibit P65, pp 124-125. 332 Transcript of Exhibit P65, p 134. 333 Transcript of Exhibit P65, p 132. 334 T1329-1330. -- 112 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 109 I move now, finally, to Ms Hinrichsen’s record of interview. You saw it very recently and I won’t go through it in detail. It is an interview in which, in the prosecution’s submission, it is quite apparent that Ms Hinrichsen’s position and her preparedness to share information shifts and changes and changes quite significantly along the way. Where does she land by the end of it? I suggest by the end of it she lands on four significant assertions from her perspective. (1) She was not home last night, she came home to find her husband’s body and has no knowledge about what happened to him. (2) She did not know she had her husband’s phone in her bag. (3) That morning she discovered her keys were placed differently on her key ring. (4) The hunting spree permission text meant permission for [Skinner] to speak to her husband. I am not saying that is all of it but that would seem to be the four key messages by the end of the interview. Taken together what she is conveying by the end of the interview is she had no knowledge, she had no involvement. What I want to ask you to think about are the features of the interview which might cause you to doubt the truthfulness of those claims and her credibility in making those claims which are essentially denials that she had any involvement in the death of her husband. … 454 As she foreshadowed, the prosecutor then went through the various features of the record of interview that she said supported her submission as to the changes in Hinrichsen’s version of events, and the lack of credibility in that version of events. She identified several statements by Hinrichsen which she submitted were lies, or lacked credibility. Indeed, she suggested that Hinrichsen’s “whole account of denial lacks credibility”. In concluding her submissions on this topic, and indeed her closing address, the prosecutor turned to Hinrichsen’s statement that on the morning of 15 December 2018 she had noticed that the house keys were placed differently on her key ring:335 … how can you accept that she also found at that time that the house keys were placed differently? Remember, in that interview one of the first things she said to detectives is that she can’t work out what happened because the house was locked. That might tell you that she well understood the significance of the way in which entry had been made into the house. Members of the jury, in the prosecution’s submission you cannot accept that claim about the keys as anything other than a late desperate conniving attempt to distance herself from providing those house keys to Skinner and, therefore, the truth of her involvement in this crime. So we invite you to find Ms Hinrichsen guilty of murder. We invite you to find Mr Skinner guilty of murder. We invite you to find Mr Thrupp guilty of murder. (emphasis added) 455 The appellant relies upon the italicised words as inviting the jury to engage in reasoning that reflected a consciousness of guilt on the part of Hinrichsen. The appellant complains that this submission was made in a context where the prosecutor had not previously suggested that any such invitation would be made. 335 T1333. -- 113 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 110 456 The appellant also emphasises the timing of this submission. As mentioned, it came right at the end of the prosecution closing address. Court was then adjourned for the day. Unfortunately, the Court was not able to sit on the following two days for reasons associated with the Covid pandemic. 457 Closing addresses for Skinner and Hinrichsen were given on Thursday, 22 July 2021. 458 In his closing address, trial counsel for Hinrichsen dealt fairly briefly with her police interview.336 He emphasised the length of the interview and the emotionally difficult circumstances in which it was conducted (with Hinrichsen having found her husband’s body only hours earlier). He suggested that what she said was reliable, given that much of what she said had turned out to be true. He did not deal directly with what Hinrichsen had said about the house keys, other than to observe in passing that she “told them about the keys having been taken off the key ring or whatever.” 459 The closing address for Thrupp was given on Friday, 23 July 2022. 460 Throughout the period from the prosecutor’s submission the subject of Ground 4 through to the completion of closing addresses, nothing was said by counsel or the judge about the prosecutor’s submission. There was no complaint, and there was no request for any particular directions to address the impugned submission. 461 The trial judge commenced her summing up the following Monday, 26 July 2021. Her Honour finished her summing up by about 10am on Wednesday, 28 July 2021 and invited the jury to commence their deliberations. The jury returned their verdicts at about 3pm that afternoon. 462 In the course of her summing up, the trial judge addressed in general terms the prosecution submissions as to lies told by Skinner and Hinrichsen in their police interviews. In commencing her directions in relation to these interviews, her Honour said:337 You will recall that on the prosecution case each accused has lied or told untruths in their record of interview and statements. Whether the accused has told any lies is a factual question for you. If you find that the accused has lied then you can use that when you are deciding whether his or her police statement is credible or believable and any such lie is relevant to the veracity of that account. Much would depend on how significant the lie is, as you find it to be, and any explanation for it. But you cannot use a conclusion that an accused told lies, if you so find, as evidence of his or her guilt. Finding that the accused lied may affect your assessment of the truth of what the accused said but it does not of itself add to the prosecution’s evidence. 336 T1358-1360. 337 SU154. -- 114 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 111 463 The directions given by the judge on this issue reflected what is sometimes described as a Zoneff direction. The essence of the appellant’s complaint in Ground 4 is that the prosecutor having invited the jury, in respect of a particular aspect of the evidence, to engage in reasoning reflecting a consciousness of guilt on the part of Hinrichsen, there was a risk that the jury might use the evidence in this way, without the protection afforded by an Edwards direction. The appellant complains that because the prosecutor’s submission invited this form of reasoning, it was necessary that the judge squarely address the submission that had been made. The judge might have done so by expressly telling the jury not to use the relevant aspect of Hinrichsen’s police interview as evidence of guilt, rather than relying upon a generally expressed Zoneff direction. Alternatively, the judge should have given an Edwards direction specifically directed to this aspect of Hinrichsen’s police interview. 464 Backtracking for a moment, reference to an Edwards direction is, of course, reference to the style of direction contemplated by Deane, Dawson and Gaudron JJ in Edwards v The Queen.338 As their Honours explained in that case,339 the telling of a lie ordinarily affects the credit of a person who tells it. But in some circumstances, a lie told by an accused person may amount to conduct which is inconsistent with innocence and an implied admission of guilt. A lie may constitute an admission only if it is concerned with some circumstance or event connected with the offence (that is, it relates to a material issue), and if told by the accused in circumstances in which the explanation for the lie is that he or she knew that the truth would implicate him or her in the offence. As to the direction that should be given where the prosecution seek to rely upon a lie as demonstrating a consciousness of guilt, Deane, Dawson and Gaudron JJ said:340 Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes and admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence and some aspect of it and that it was told because the accused knew the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg v Lucas (Ruth), because of ‘a realization of guilt and a fear of the truth’. Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a 338 Edwards v The Queen (1993) 178 CLR 193. 339 Edwards v The Queen (1993) 178 CLR 193 at 208-209 (Deane, Dawson and Gaudron JJ). 340 Edwards v The Queen (1993) 178 CLR 193 at 210-211 (Deane, Dawson and Gaudron JJ) (omitting citations). -- 115 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 112 deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect. 465 In Zoneff v The Queen,341 Gleeson CJ, Gaudron, Gummow and Callinan JJ recognised that the Edwards direction had caused difficulties and controversy in criminal trials.342 Their Honours indicated an approach which underscored the importance of ascertaining whether the prosecution sought to rely upon a particular lie or lies as reflecting a consciousness of guilt, and suggested that an Edwards direction would not generally be necessary in those cases where the prosecution did not seek to use any lie as having a relevance extending beyond credit:343 There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt. As a general rule, however, an Edwards- type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards, ‘the accused knew that the truth … would implicate him in [the commission of] the offence’ and if, in fact, the lie in question is capable of bearing that character. … Moreover, if there is a risk of confusion or doubt as to the way in which the prosecution puts its case, the trial judge should inquire of the prosecution whether it contends that lies may constitute evidence of consciousness of guilt and, if so, he or she should require identification of the lie or lies in issue and the basis on which they are said to be capable of implicating the accused in the commission of the offence charged. 466 Their Honours went on to explain that in a case where the prosecution did not seek to use any lie as reflecting a consciousness of guilt, then a more limited direction would ordinarily be sufficient and appropriate.344 The more limited direction (a Zoneff direction) contemplated by their Honours involved instructing the jury not to use any lie that the accused may have told as evidence of guilt (without any reference to the possibility that a lie may indicate a consciousness of guilt). 467 While the principles governing the directions to be given in relation to lies are relatively clear, they are often difficult to apply. The appellant relied upon a useful illustration of their application by the Queensland Court of Appeal in R v Sheppard.345 In that case, the defendant was charged with rape. During the course of a police interview, the defendant said that he had not been in the complainant’s room at the relevant time. He later accepted (and there was other evidence) that in fact he had been in her room, but maintained that he had not touched her improperly. In closing addresses, the prosecutor referred to the initial lie told by 341 Zoneff v The Queen (2000) 200 CLR 234. 342 Zoneff v The Queen (2000) 200 CLR 234 at [15] (Gleeson CJ, Gaudron, Gummow and Callinan JJ). 343 Zoneff v The Queen (2000) 200 CLR 234 at [16]-[17] (Gleeson CJ, Gaudron, Gummow and Callinan JJ). 344 Zoneff v The Queen (2000) 200 CLR 234 at [23]-[25] (Gleeson CJ, Gaudron, Gummow and Callinan JJ). 345 R v Sheppard [2010] QCA 342. -- 116 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 113 the defendant in his police interview, and challenged the credit of various other aspects of his versions of events. In concluding submissions on this topic, the prosecutor said “Now, in my submission, his account to police is just simply an effort to distance himself from this allegation that he did commit the offence as [the complainant] has outlined.” 468 In discussions with counsel, the trial judge in R v Sheppard indicated her view that the prosecution could have relied upon the lie as demonstrating a consciousness of guilt and warranting an Edwards direction. However, her Honour decided “out of an abundance of caution” to limit her directions as to lies to their use in relation to credit, and hence gave a Zoneff direction.346 469 In allowing the appeal, McMurdo P emphasised that because the prosecution address included a submission which invited consciousness of guilt reasoning, an Edwards direction rather than a Zoneff direction was required:347 Unfortunately, whilst the prosecutor in the main encouraged the jury to treat the appellant’s lie to police as relevant to credit, the prosecutor also submitted to the jury that ‘his account to police is just simply an effort to distance himself from this allegation that he did commit the offence as [the complainant] has outlined. That appears to me to be a clear suggestion to the jury that the appellant lied to police out of a consciousness of guilt. The prosecutor’s submission meant that the jury should have been given the authoritative Edwards direction which instructs juries not to use the lie as evidence against an accused person until satisfied of the matters specified in Edwards. The prosecutor’s submission meant that a Zoneff direction was neither adequate nor appropriate. 470 Returning to the present case, the appellant relies upon the obvious similarity between the terms of the prosecutor’s submission in R v Sheppard in relation to the defendant’s statement that he had not been in the complainant’s room (which characterised the defendant’s statement as a lie told in an “effort to distance himself” from the allegation he committed the alleged offence), and the prosecutor’s submission in the present case in relation to Hinrichsen’s statement about the different positioning of her house keys (which characterised Hinrichsen’s statement as “a late desperate conniving attempt to distance herself from providing those house keys to Skinner and, therefore, the truth of her involvement in this crime”.) 471 A submission that a defendant is attempting to distance himself or herself may not always be indicative of a consciousness of guilt. But here, the terms of the submission expressly linked Hinrichsen’s lie to a suggested motive of distancing herself from “the truth of her involvement in this crime”. Further, as the appellant emphasised, the submission in the present case was expressed in rather emotive terms, and followed immediately upon a submission that 346 R v Sheppard [2010] QCA 342 at [19] (McMurdo P, Holmes JA and Daubney J agreeing). 347 R v Sheppard [2010] QCA 342 at [20] (McMurdo P, Holmes JA and Daubney J agreeing) (citations omitted). -- 117 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 114 Hinrichsen well understood the significance of the way in which entry had been made into the house. 472 The respondent acknowledged the problematic terms of the prosecutor’s submission in relation to the house keys, effectively acknowledging some risk that it might have encouraged jurors to engage in reasoning that reflected a consciousness of guilt. The respondent contended, however, that there were two reasons why an Edwards direction was not required and why a general Zoneff direction was sufficient. 473 The first reason was that it was necessary to consider the prosecutor’s submission in context. The respondent pointed out that the impugned submission was made at the end of a run of submissions made in relation to Hinrichsen’s police interview. These submissions were introduced as intended to highlight features of the interview that might cause the jury to doubt the truthfulness and credibility of her claims, and then proceeded to do precisely that. The respondent contended that, considered in this context, the impugned submission would have been understood by the jury as no more than another strand of the prosecutor’s attack upon the credit of the statements made by Hinrichsen during the course of her police interview. 474 We accept that this context is relevant. We also accept that it is appropriate to have regard, in this context, to the fact that no one at trial raised any difficulty with the prosecutor’s submission. In particular, defence counsel did not take issue with the submission, or otherwise suggest that any particular directions were necessary to address a risk of the jury engaging in consciousness of guilt reasoning. Whilst not decisive, this provides some contemporaneous support for the submission being understood in the sense the respondent contends. 475 However, we are not ultimately persuaded by the respondent’s submission. In our view, the impugned submission was in quite different terms to what preceded it, and by reason of its terms and tone, presented a significant risk of encouraging jurors to engage in consciousness of guilt reasoning. 476 The second reason the respondent proffered for challenging the necessity for, or indeed appropriateness of, an Edwards direction was that, properly analysed, Hinrichsen’s statement that she noticed that the house keys were positioned differently on her key ring on the morning of 15 December 2018 was not apt to be treated as a lie reflecting a consciousness of guilt. In developing this submission, the respondent explained that the contended falsity of what Hinrichsen said about her keys lay not in what she said about the positioning of the keys (which suggested that someone other than her had access to her house keys), but in her denial of any knowledge about the use of those keys at the time it occurred. The former was not necessarily a lie, even on the prosecution case. Even accepting that Hinrichsen gave Skinner permission to use the keys, he may have taken them off the key ring or, more relevantly, may have returned them to the key ring after they had been used. However, on the prosecution case, the latter was a lie. -- 118 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 115 477 We accept the respondent’s submission that there may have been difficulties with reliance upon the latter as a lie reflecting a consciousness of guilt. The first potential difficulty is that, unlike the lie in R v Sheppard, any lie inherent in Hinrichsen’s denial of knowledge of the use of her keys was essentially a denial of Hinrichsen’s alleged offending,348 rather than a lie about something related to the matter but independently proven by other evidence in the case to be false. 478 The respondent suggested that a second potential difficulty is that any lie was not one told by Hinrichsen because she could not innocently explain her possession or use of the keys. We are not sure that this stands in the way of the use of Hinrichsen’s statement about the keys as involving a consciousness of guilt. It seems to us that if it were accepted that her statement was made in circumstances where Hinrichsen appreciated the significance of knowledge of the use that had been made of her house keys, and made in an attempt to deflect attention away from her having any such knowledge, this might be said to involve a consciousness of guilt. 479 A third potential difficulty is that, in circumstances where any lie was told during a police interview and in a context where there was plainly reason for Hinrichsen to think that the police suspected her involvement in her husband’s death, there were obvious reasons (other than a consciousness of guilt) why she might have lied – such as out of panic, or out of fear of being wrongly accused. While we accept the force of these observations, they seem to us to underscore the importance of the protection against misguided consciousness of guilt reasoning through an Edwards direction, rather than to prevent reliance upon the evidence in that way. 480 All of that said, we do not think it is necessary for us to reach a conclusion as to whether, properly analysed, Hinrichsen’s statement about the positioning of her house keys could properly have been relied upon as a statement reflecting a consciousness of guilt on her part. The critical point is that we are satisfied that the prosecutor’s submission used language that invoked consciousness of guilt reasoning, and gave rise to a real risk that the jury may have reasoned in this way. If it be the case that such reasoning was inapposite, then that merely exacerbated the potential prejudice to Hinrichsen, rather than removing the need for protection against that prejudice through appropriate directions. 481 The risk of the jury utilising consciousness of guilt reasoning having arisen, it needed to be addressed. If the prosecutor did in fact intend to rely upon Hinrichsen’s statement about the positioning of her keys as reflecting a consciousness of guilt, and it was ultimately concluded that this was appropriate, then it ought to have been the subject of an Edwards direction. Alternatively, if, as seems more likely, the prosecutor’s submission was an unfortunate flourish rather than an intentional submission that the jury should invoke consciousness of guilt reasoning, then the matter ought to have been the subject of a clear and 348 Or an element of that offending. -- 119 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 116 specific direction that the jury should not reason in this way. We do not think the more general Zoneff direction given by the judge was sufficient to address the risk that the jury might invoke consciousness of guilt reasoning in their consideration of Hinrichsen’s statement about the positioning of her keys. 482 In our view, Ground 4 has been made out. 483 In concluding that the failure to address the risk that arose occasioned a miscarriage of justice, we have taken into account not only the fact that the prosecutor’s submission invoked language redolent of a consciousness of guilt, but also the fact that its prominence was unfortunately enhanced by the emotive terms in which it was made and the fact that it was the final submission made by the prosecutor. We have also taken into account that it related to a critical matter in the prosecution case against Hinrichsen. Proviso 484 Having decided that Ground 1.7 (failure to direct as to withdrawal of encouragement), Ground 2 (failure to direct as to need to consider whether Skinner murdered the deceased on the evidence admissible against Hinrichsen) and Ground 4 (failure to direct in relation to the prosecution submission suggesting a consciousness of guilt) have been made out, the appeal must be allowed unless this Court is satisfied that no substantial miscarriage of justice actually occurred.349 485 The respondent did not advance a submission to the effect that this Court should invoke the proviso, and given the nature of the grounds that have been made out and their potential impact upon the outcome, 350 we do not think there is a proper basis to do so. The natural limitations of proceeding on the record prevent us from concluding, on our own independent assessment, that the evidence properly admitted against Hinrichsen at trial established her guilt beyond reasonable doubt.351 Conclusion 486 As mentioned at the outset of these reasons, Ground 1 did not require permission to appeal, and permission has been granted on Grounds 2 and 4. To the extent necessary, we would grant permission to appeal on Grounds 2A, 2B, 2C and 3. 487 We would allow the appeal on Grounds 1.7, 2 and 4. 349 Criminal Procedure Act 1921 (SA) s 158(2). 350 Orreal v The Queen (2021) 96 ALJR 78 at [20] (Kiefel CJ and Keane J); Kalbasi v Western Australia (2018) 264 CLR 62 at [15] (Kiefel CJ, Bell, Keane and Gordon JJ); Weiss v The Queen (2005) 224 CLR 300 at [43] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ). 351 Weiss v The Queen (2005) 224 CLR 300 at [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ); Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92 at [27] (French CJ, Gummow, Hayne and Crennan JJ). -- 120 of 121 -- [2023] SASCA 111 Lovell and Doyle JJA 117 488 We would set aside the appellant’s conviction and order a retrial. -- 121 of 121 --