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R v Oberin (Ruling) [2022] VSC 518 (6 September 2022)

Last Updated: 11 November 2022

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0056

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CRIMINAL LAW – Accused charged with manslaughter – Deceased died from a shotgun blast to the head – Co-accused alleged to be the principal offender - Accused alleged to be complicit in unlawful and dangerous act – Accused and co-accused originally charged with murder – Fresh indictment charging co-accused with murder and accused with manslaughter – Co-accused subsequently pleaded guilty to manslaughter.

CRIMINAL LAW – Application for permanent stay of trial – Whether Crown acceptance of manslaughter plea from co-accused done for tactical advantage in trial of accused absent evidentiary foundation – Whether Crown case fundamentally flawed – Whether Crown can exclude reasonable possibility that act causing death was a deliberate, intentional shooting –– Whether deliberate, intentional shooting an intervening act breaking the ‘chain of complicity and causation’ – No abuse of process – Crown case not fundamentally flawed – Application for permanent stay refused – Crimes Act 1958, ss 323 and 324.

EVIDENCE – Whether evidence of animosity between the accused and deceased arising from sexual relationship between the accused’s ex-partner and the deceased relevant – Whether evidence unfairly prejudicial – Evidence admitted – Evidence Act 2008 ss 55, 137.

PRACTICE AND PROCEDURE – Application for suppression order concerning plea of co-accused to manslaughter – Whether order necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means – Application granted until return of verdict in trial of accused – Open Courts Act 2013, ss 17 and 18.

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HER HONOUR:

1 The accused is charged with manslaughter by unlawful and dangerous act contrary to common law.
2 The relevant act is said to be travelling to the address of Matthew Alexander (‘the deceased’) with a functioning, loaded shotgun and menacing the deceased with it. The shotgun then discharged in the direction of the deceased, fatally wounding him in the head.
3 The accused did not wield or discharge the shotgun. Kevin Johnson is alleged to be the principal offender who did so. The accused is alleged to be complicit in the relevant unlawful and dangerous act. Both Johnson and the accused were initially charged with murder. Johnson pleaded guilty to manslaughter on 22 April 2022.
4 The accused applies for a permanent stay of his trial on two bases. First, that the Crown cannot exclude the reasonable possibility that the deceased was shot with murderous intent by Johnson and, therefore, the accused cannot in law be guilty of manslaughter. Second, that the trial of the accused is an abuse of process.
5 For the reasons outlined below, the application for a permanent stay is refused.

Summary of prosecution case

6 It is convenient to detail the prosecution case.^[1]
7 The accused worked as a builder in the Echuca area and, prior to January 2019, lived in a dwelling on his family’s farm in Gunbower with Bree Forge. That relationship ended, acrimoniously, in January 2019.
8 Thereafter the accused told a number of his associates that he suspected that Ms Forge had been sleeping with other people, including the deceased, during the course of their relationship. The accused and deceased had been friends until a falling out in 2018.
9 Between 27 and 28 July 2019, a property owned by the Oberin family in Hopwood Street, Echuca was burgled. Thereafter the accused moved from the Gunbower farm to Hopwood Street. He left most of his tools in Gunbower.
10 Between 23 and 24 August 2019 there was a burglary at the Gunbower farm. That burglary was committed by Forge and Nick Decicco. They stole a trailer containing tools, as well as a MIG welder and gas bottle that originally belonged to the accused’s late father.
11 On 25 August 2019 Decicco and Forge met with the deceased, Cameron Warby, Trent Baldwin and Dillon O’Connell at a remote location in the Gunbower State Forest. Baldwin took possession of the stolen MIG welder. The deceased took possession of the stolen gas bottle.
12 On 27 August 2019 Victoria Police executed a search warrant at a storage shed in relation to an unrelated matter. Tools belonging to the accused and personal property belonging to Forge were located. Police informed the accused of the recovery of the tools.
13 The accused began making his own enquiries regarding the involvement of Forge and others in the Gunbower farm burglary. The accused discussed with Ebony Bennett (the partner of Warby) his suspicions that Forge, the deceased and Warby were involved.
14 The prosecution alleges that the accused’s suspicion of the involvement of the deceased in the burglary or of receiving the stolen property from Forge contributed to his animosity towards him.
15 On the morning of 1 September 2019 the accused and Paige Perkins (a mutual friend of the accused and deceased) were together in Hopwood Street. The accused showed Perkins a series of messages between Forge and the deceased that he had obtained from an old phone belonging to Forge. The messages dated from January 2018 and were of an explicit nature. The accused described Forge as a ‘dirty little whore’ to Perkins and said the messages were proof that Forge and the deceased had been sleeping together.
16 The following week, Johnson arranged the purchase of a purple Holden utility for $4,500. He collected it on 11 September 2019.
17 On the morning of 12 September 2019 Bennett contacted the accused. The burglary at the Gunbower farm was again discussed. The accused said that he had heard that Decicco and Forge were responsible for the burglary and that the gas bottle from the MIG welder was at the deceased’s property. Bennett said that she and others had looked, but had not seen anything at that property. The accused said he was 100 percent sure that the bottle was there. He asked Bennett how much drugs the deceased was holding. Bennett stated that she did not know. Bennett told the accused that she had seen the deceased’s vehicle at the home of Katelyn Wandin’s parents (Wandin being the deceased’s then partner). The accused asked Bennett to let him know if the vehicle departed.
18 Later that morning, Bennett sent the accused a message stating that she had seen the accused and Wandin driving past her place. In the afternoon, Bennett told the accused that the deceased’s vehicle was again at Wandin’s parents’ place. She told him to go to the deceased’s Daltons Bridge address to look for the gas bottle while no one was there. The accused told her that he wanted to go to there when the deceased was home so he could speak to him in person.
19 Bennett sent the accused a message stating not to hurt Warby. The accused instructed her to delete all of her text messages and said that no one would get hurt. He later said he had to take care of something before going to Daltons Bridge.
20 At about 6.00pm a neighbour of the accused at the Hopwood Street address returned home from work and observed a purple Holden ute parked outside number 36.
21 At about 8.30pm Warby and the deceased returned to Daltons Bridge. Christopher McDonald joined them later. The three men worked on some vehicles and consumed an amount of ‘ice’.
22 In the early hours of 13 September 2019, the accused drove the purple ute to the home of Daniel Simpson in Mount Terrick, about 20 kilometres south of Gunbower. They discussed roof trusses. The accused was in a bit of a state and rambling on about Forge. The accused then left and went to the Gunbower address.
23 At about 2.44am the accused spoke with Ebony Lackmann and told her he was at home. After that call the accused and Johnson met in the Gunbower vicinity. Together they drove the purple ute to Daltons Bridge, taking a loaded sawn off, side by side shotgun with them.
24 Shortly before 6.00am, the deceased, Warby and McDonald were working on a Holden Commodore sedan parked next to a shed in the driveway of the premises. As the purple ute pulled into the driveway, the deceased asked who it was. Warby replied ‘I don’t know’. Warby heard the sound of two doors opening. The deceased said ‘it’s Obes’. ‘Obes’ is the nickname of the accused.
25 The accused and Johnson approached the three, who continued to work on the vehicle. Johnson discharged a round from the shotgun into the air. He yelled to the three to sit down or get to the ground. Warby and McDonald complied. When on the ground, McDonald saw a side by side double barrel shotgun held by Johnson, who was then standing on the driver’s side of the Holden Commodore.
26 The accused began arguing with the deceased. A physical altercation developed.
27 The accused then went into the shed. He yelled ‘where is the recording box?’. The deceased replied that it was ‘in the corner.’ The accused returned outside and again demanded to know where the box for the cameras was located. Johnson struck the deceased with the gun, causing him to fall to the ground. The deceased said that the box was ‘under the TV’. The accused returned to the shed, located the unit attached to the underside of the work bench and removed the internal hard drive. The outer shell remained attached to the bench.
28 Whilst the accused was obtaining the hard drive, Johnson continued to yell at the deceased. The shotgun discharged. The round hit the deceased in the head whilst he was in a position low down against another car. Johnson said ‘yeah, I’ve killed him’ before walking back past McDonald. Johnson said that he had to kill Warby and McDonald as well.
29 The accused exited the shed with the hard drive. He met up with Johnson on the driveway. Johnson was repeatedly saying ‘I’ve killed him’. Johnson also tried to re-load the shotgun. The fore-end of the firearm became detached and was left behind as the accused and Johnson ran back to the ute and left the scene. They drove to Echuca, taking the hard drive and (most of) the shotgun with them.
30 Warby and McDonald contacted emergency services. Fearing the return of the accused and Johnson, Warby drove the deceased’s vehicle through a corrugated iron fence, paddock gate and eventually into a mailbox. He tried to call for help before returning to the scene. McDonald commenced CPR on the deceased, who was then still breathing.
31 Shortly after 6.30am police and emergency services arrived. The deceased was pronounced dead. A crime scene was established.
32 At 10.35am the accused, in company with his mother, presented himself at the Echuca Police Station. He said ‘I’m Daniel Oberin. I was at a crime scene last night. I wasn’t involved, I didn’t do anything.’
33 In a further conversation with police captured by a body worn camera, the accused said:

‘I did not see ... I don’t know exactly what happened ... to cause the death .... I didn’t witness it ... I was in the shed and I probably just need a lawyer....because I am innocent, I am innocent, I did not do it but ... I promise you that. I just want a lawyer so I don’t get myself in trouble ... because I was there ... I’m obviously gunna get ... I’m very embarrassed’

34 The accused was cautioned and arrested.
35 The manner in which the prosecution case is put assumes some importance in the application. The April 2022 Opening is in the following terms.

80. The prosecution case is that JOHNSON caused the death of ALEXANDER by an unlawful and dangerous act. That act is constituted by travelling to the Daltons Bridge address with a functioning, loaded shotgun and menacing ALEXANDER with that shotgun, which then discharged in his direction and fatally wounded ALEXANDER in the head.
81. It is the prosecution case that OBERIN is guilty of Manslaughter in that together with JOHNSON he engaged in an unlawful and dangerous act that caused the death of ALEXANDER. It is alleged that OBERIN was complicit with JOHNSON in the acts set out in paragraphs 30 to 36. It is alleged that OBERIN is complicit with JOHNSON pursuant to s 323(1)(a) of the Crimes Act 1958 by assisting or encouraging JOHNSON to commit that unlawful and dangerous act and/or s 323(1)(c) of the Crimes Act 1958 by entering into an agreement, arrangement or understanding with JOHNSON to commit that unlawful and dangerous act.

Procedural history

37 It is also necessary to set out the procedural history of the matter.
38 Johnson was committed to stand trial on murder on 12 February 2021. The accused was so committed on 16 March 2021. An indictment filed on 7 May 2021 charged both with murder contrary to common law and murder contrary to s 3A(1) of the Crimes Act 1958 (‘Act’).
39 On 3 June 2021 Johnson filed a defence response in which he denied intentionally shooting the deceased and also denied that he intended to kill the deceased or cause him really serious injury.
40 On 8 June 2021 the accused filed a defence response in which he disputed that prior to attending the deceased’s address he entered into any agreement, arrangement or understanding that the offence of either murder or armed robbery would be committed. He further disputed entering into any agreement, arrangement or understanding whilst at the deceased’s address that either offence would be committed.
41 On 21 June 2021 leave was granted pursuant to s 198B of the Criminal Procedure Act 2009 (‘CPA’) for the accused and Johnson to cross-examine two prosecution witnesses. That cross-examination took place on 17 September 2021. On that date the senior prosecutor informed the Court that the Crown intended to substitute a charge of manslaughter for the two murder charges originally preferred against the accused. Orders were made requiring the Crown to file an amended indictment and summary of prosecution opening by 1 October 2021. The parties agreed that amended defence responses were unnecessary. Further orders as to the filing of submissions concerning pre-trial issues were made.
42 On 1 October 2021 an amended indictment was filed charging Johnson with a single count of murder contrary to common law and the accused with a single count of manslaughter. An amended summary of prosecution opening (‘Previous Opening’) was filed the same day. The Previous Opening articulated the prosecution case as follows:

83. The prosecution case is that JOHNSON caused the death of ALEXANDER by shooting him in the head whilst intending to kill him or cause really serious injury.
84. It is the prosecution case that OBERIN is guilty of manslaughter in that together with JOHNSON he engaged in an unlawful and dangerous act that caused the death of ALEXANDER. It is alleged that OBERIN was complicit with JOHNSON in the acts set out in paragraphs 30 to 36 above^[2] save for the intentional shooting of ALEXANDER by JOHNSON. It is alleged that OBERIN is complicit with JOHNSON pursuant to s 323(1)(a) and/or (c) Crimes Act 1958.

... it is difficult to see a viable case of manslaughter against the applicant.
Section 324(1) of the Crimes Act 1958 provides that ‘a person who is involved in the commission’ of an offence ‘is taken to have committed that offence’. In this case, the applicant will only be so ‘involved’ if his conduct an be brought within one of the two statutory heads of complicity relied upon by the prosecution, found in ss 323(1)(a) and (c). it is abundantly clear, in my view, that the reference to the offence in sub-paragraphs (a) and (c) of s 323(1) must be reference to the offence in which the applicant is alleged to be complicit. Section 324 will only deem the applicant to have committed an offence if he is shown by the prosecution to have been ‘involved in the commission of’ that offence in one or other of the two specified ways. The offence with which Johnson is charged is murder at common law. It is alleged that he intentionally discharged a round from the firearm into Mr Alexander intending to kill him or to cause him really serious injury. Thus, so it presently seems to me, the applicant could only attract criminal liability under ss 323(1)(a) or (c) if he had intentionally assisted, encouraged or directed the commission of the offence of murder, or had entered into an agreement, arrangement or understanding with Johnson to commit the offence of murder. The prosecution does not alleged, however, that the applicant is complicit in the specified ways in Mr Alexander’s murder.^[3]

44 It is to be noted that in so stating, his Honour cited DPP v Hansen (a pseudonym).^[4]
45 On 16 and 17 February 2022, the accused and Johnson, respectively, filed submissions concerning pre-trial admissibility issues.
46 On 2 March 2022, at a final directions hearing, the Crown indicated that Johnson had made an offer to resolve his trial a day or so prior and that that offer was under consideration. Counsel for the accused stated that there would be an argument about the operation of the complicity provisions in the Act on the basis of the prosecution case being ‘fraught with conceptual and practical difficulties,’^[5] a phrase used by Priest JA in Re Oberin. A timetable for the filing of submissions and hearing of that issue was set.
47 On 18 March 2022 the accused filed submissions seeking a permanent stay of his trial. That application was based on the observations of Priest JA in Re Oberin regarding the complicity provisions and included reference to Hansen.
48 On 15 April 2022 the Crown filed submissions responding to the application for a permanent stay. Those submissions sought to distinguish Hansen from the present charges and otherwise argued that the complicity provisions do not require the principal offender and secondary party to be charged with the same offence.
49 On 21 April 2022 the Crown filed an indictment alleging a single count of manslaughter against Johnson. He was arraigned and pleaded guilty to that offence on 22 April 2022.
50 On 28 April 2022 the Crown filed the April 2022 Opening detailing the manner in which the prosecution case was put against the accused, as set out in paragraph 35 above.

Application for a permanent stay

51 The acceptance by the Crown of Johnson’s plea to manslaughter rendered the central argument detailed in the written submissions of the parties redundant.
52 As already noted, in those submissions the accused argued that it was legally impossible under the complicity provisions in the Act for him to be charged with manslaughter as a secondary party whilst Johnson, the principal offender, was charged with murder. The accused submitted, citing Hansen, that the words ‘the offence’ in s 323(1)(a), s 323(1)(c) and s 324 refer to ‘the offence’ in which it is alleged two or more offenders are complicit and consequently he and Johnson could not become joined in ‘the offence’ committed by the other.
53 In written submissions the Crown responded that ss 323 and 324 do not require that the principal offender and secondary party be charged with the same offence. The position at common law is that it is sufficient that the principal offender carried out the acts necessary for the commission of the offence and the secondary party was intentionally involved in those acts. The Crown argued that in the absence of clear and unambiguous language, it cannot be said that Parliament intended to exclude that common law position. The Crown referred to R v Novakovic & Ors (Rulings 2-4),^[6] a decision of this Court which held a secondary party could be charged with manslaughter whilst a principal offender was charged with murder under any of the statutory complicity provisions. The Crown submitted that Novakovic should be followed.
54 The Crown further argued that Hansen was distinguishable from the present facts. Hansen involved a secondary party charged with murder under s 3A of the Act. The Court of Appeal in that case determined that the Crown had to prove the accused was ‘involved in’ both the foundational offence of intentionally causing injury, as well as the murder which occurred in the course of carrying out that foundational offence. As manslaughter does not require a foundational offence to have been committed, it is sufficient that the accused was ‘involved in’ the commission of an unlawful and objectively dangerous act by Johnson (namely, travelling to the deceased’s home with a loaded firearm and presenting it at him) that caused death, and that that act was committed deliberately, voluntarily and consciously.
55 It is unnecessary for me to resolve that issue. However the submissions made regarding the applicability of Hansen and the operation of the complicity provisions remain relevant to the formulation of the two separate bases upon which the accused seeks a permanent stay of his trial.
56 In oral submissions made on 9 May 2022 these were formulated as follows. First, the Crown cannot exclude the reasonable possibility that Johnson deliberately killed the deceased with murderous intent. Therefore the relevant act causing death was a deliberate shooting. As such, it was an intervening act that broke the chain of complicity and causation. Second, in all the circumstances the decision by the Crown to withdraw the murder charge against Johnson and accept a plea of manslaughter from him amounts to an abuse of process.

Abuse of process?

57 It is convenient to deal with the second basis first.
58 The abuse of process alleged rests upon a number of intertwined arguments. It was submitted that there is no evidentiary basis upon which the Crown could accept a manslaughter plea from Johnson: his action in killing the deceased was and could be nothing less than an intentional, deliberate shooting at close range of a man kneeling or lying down next to a car. The murder charge against Johnson had been maintained until the day before the Court was due to hear argument that the manslaughter charge against the accused was fundamentally flawed because Johnson was charged with murder. That characterisation of the case against the accused had the imprimatur of Priest JA. And, it was submitted, that during the hearing of the accused’s bail application, his Honour described the case for murder against Johnson as ‘overwhelming’. It therefore followed that the action of the Crown in compromising the case against Johnson to manslaughter was motivated by an improper purpose, namely to save the case against the accused at any cost.
59 I reject the argument that the Crown has acted in bad faith or has engaged in a ‘tactical manoeuvre’ based upon an ‘evidentiary fiction’.
60 The compromise reached in the trial of Johnson was not improper. If the case against Johnson had proceeded to trial on a charge of murder, a verdict of manslaughter would have been open on the evidence.^[7]
61 The murder charge was based on the allegation that Johnson deliberately pulled the trigger and did so with murderous intent. It was a circumstantial case. A jury would have needed to be satisfied beyond reasonable doubt that that was the only reasonable inference to draw from the whole of the evidence. A jury might well have. The case was certainly not weak. Equally, a jury might have experienced a reasonable doubt.
62 On one view of the facts, Johnson attended the scene wielding a loaded shotgun. He fired a warning shot and struck the deceased with the gun. The deceased was at a lower position than Johnson and at close range when the fatal shot was fired. That shot was to the deceased’s head. Johnson said ‘I’ve killed him’ after the shot was fired. He was heard to say he also had to kill McDonald and Warby.
63 On the other, no one saw Johnson pull the trigger. The deceased’s exact position relative to Johnson at the time of the fatal shot is not known with certainty. Johnson did not say anything suggesting that the fatal shot was deliberate. The statement ‘I’ve killed him’ after the fact does not necessarily infer that he intended to kill the deceased at the time he depressed the trigger. It might have been said in recognition of a sudden reality. The utterance that he had to kill the others too might have been an idea formed in response to that sudden reality.
64 In his statement to police dated 13 September 2019 Warby said the following:

29. I’m still sitting with my head in my hands. I’m not sure where Chris was but he was on the opposite side of the Clubsport to me (He was on the driver’s side of the Clubsport). I’m not sure where Matt was. I was still shitting myself and was hearing what, if anything was being said.
30. The next thing I heard another gun shot. The shot noise came from the opposite side of the car I was working on. I can’t remember hearing any noise, or talking from anyone, before this shot was fired. It was a shotgun noise. The same sound as the first shot noise.
31. After this second shot I was still sitting with my head in my hands. I could hear footsteps on the gravel as they walked back to their ute. I heard two doors open and close, and the ute start and take off.
32. I’m pretty sure they were able to turn around and leave without reversing. I’ve heard the ute leave towards Island Road. At this time I’ve looked up and asked Chris if he was alright. Chris didn’t answer me. I was getting to my feet and saw Matt down and said ‘Is he OK?”. As I’ve said this Chris said ‘we need an ambulance’

59. At this time the second male came out of the shed and I heard him yelling something about the cameras and where the box was. I knew he was talking about the recording bit of the cameras.
60. I heard the male with the shotgun hit Matt with the gun. It sounded like hollow metal. I heard Matt hit the ground straight after and then I heard Matt tell the males where the box was for the cameras. I cannot remember his exact words but he said something like ‘under the TV’.
61. I heard the second male running on the floorboards in the old lounge room of the shed and knew he had gone back into the shed.
62. I heard the male with the shotgun start yelling at Matt again and then I heard the gun go off; as in the round had been shot. I heard the male with the shotgun say ‘yeah, I’ve killed him’.
63. The male with the shotgun then walked past me towards the passenger side of the silver Commodore saying that he had to kill us as well. At this stage I was thinking about Matt and if he was alright because I didn’t know what had happened to him.
64. I knew the gun was a double barrel and two rounds had already been fired, so I was hoping not to hear the gun being reloaded.
65. I heard the second male come out of the shed and run down the ramp past me to the passenger side of the silver Commodore where the male with the shotgun already was. The male with the shotgun was saying over and over ‘I’ve killed him, I’ve killed him.’
66. I heard both males run towards their Ute and heard the doors close. I heard them start the Ute and drive off down Easton’s Road towards Island Road. I didn’t see the path the Ute took to leave Matt’s place.
67. Once I knew they were gone I got up and went to Matt who was laying on his back on his (sic) ground with his legs facing towards Easton Road at the driver side rear wheels of the blue Club sport.

Causation

73 Returning to the first limb upon which the accused seeks a permanent stay of his trial, the accused’s argument rests on two propositions.
74 First, that on the evidence the Crown cannot exclude the reasonable possibility that Johnson deliberately discharged the firearm with murderous intent. Second, that Johnson’s deliberate discharge of the firearm was an intervening act that ‘broke down the chain of complicity and causation’. It, rather than the unlawful and dangerous act to which the accused had – until that point – been party, was the substantial and operating cause of death. The accused characterised himself as being ‘legally and factually’ removed from the act causing death because he was not in the immediate vicinity of Johnson or the deceased when the shooting occurred.
75 In response, the Crown submitted that the substantial and operating cause of death was the unlawful and dangerous act to which the accused was party, namely the bringing and wielding of a loaded shotgun. Further, even if Johnson’s act of discharging the shotgun was deliberate and accompanied by murderous intent, it was not an intervening act because in cases involving the use of firearms the relevant act causing death is not to be narrowly confined. Rather, that act is the composite of a series of motions preceding the discharge of the firearm including loading it, cocking it and presenting it at a victim. In the present case, there is evidence to establish that the accused either encouraged Johnson or entered into an agreement with him to engage in the act of bringing along and pointing a loaded gun at the deceased which fatally discharged.
76 I accept, as noted above, that the jury might well conclude that Johnson deliberately shot the deceased with murderous intent. However, I do not accept that if the jury did so, they must necessarily accept that act of murder as an intervening act.
77 To explain this conclusion, it is necessary to consider both the nature of the act causing death when death results from a gunshot and the authorities in which it is said that a secondary party to an unlawful killing may be convicted of manslaughter if the principal offender is convicted of murder.

Act causing death

78 There is no dearth of authority on what constitutes an act causing death in murder cases where a death has been caused by gunshot. Several such authorities were referred to by the parties at the pre-trial argument.^[9]
79 R v Falconer^[10] concerned an appeal by a woman convicted of the murder of her husband by shooting. The High Court considered the meaning of ‘act’ in s 23 of the Criminal Code (WA) which provided for the defence of automatism by stating ‘a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will.’
80 The Court held:

The ‘act’ in s. 23 has been differently described in judgments delivered in this Court: see Vallance; Timbu Kolian; Kaporonovski v The Queen. In our opinion, the true meaning of ‘act’ in s. 23 is that which Kitto J. in Vallance attributed to ‘act’ in s.13(1) of the Tasmanian Code, namely, a bodily action which, either alone or in conjunction with some quality of the action, or consequence caused by it, or an accompanying state of mind, entails criminal responsibility.

...

[W]hat is the ‘act’ to which the first limb in s. 23 refers? Is it merely a muscular movement of the accused's body (the contraction of the trigger finger), or is it the discharging of the loaded gun, or is it the entirety which commences with the contraction of the trigger finger and ends with the fatal wounding of the deceased?

Adopting the meaning of ‘act’ expressed by Kitto J. in Vallance, the act with which we are concerned in this case is the discharge by [the accused] of the loaded gun; it is neither restricted to the mere contraction of the trigger finger nor does it extend to the fatal wounding of [the deceased].^[11]

81 In Ryan v The Queen,^[12] the High Court considered s 18 of the Crimes Act 1900 (NSW), which defined the causation element of murder as ‘where the act (or omission) of the accused... caused the death charged.’ Ryan involved the appellant pointing a loaded rifle at the deceased and pressing the trigger as a result of a ‘reflex’ response to a sudden movement by the deceased. In considering what was the act of the appellant causing death, the majority found that the act of pulling the trigger to discharge the rifle could not be separated from the other circumstances leading up to it.^[13]
82 Windeyer J noted:

The conduct which caused the death was of course a complex of acts all done by the applicant – loading the rifle, cocking it, presenting it, pressing the trigger. But it was the final act, pressing the trigger of the loaded and levelled rifle, which made the conduct lethal.^[14]

83 Barwick CJ considered that the jury could choose either the presentation of the gun in the circumstances or its subsequent discharge as the relevant act causing death, albeit remarking that the latter was the ‘obvious choice.’^[15]
84 In Murray v the Queen,^[16] the High Court considered s 23(1)(a) of the Criminal Code (Qld), worded in similar terms to s 23 of the Criminal Code (WA). In that case, after a verbal altercation, the appellant had retrieved a loaded shotgun and approached the deceased, who started to rise from a seated position. The appellant lifted the gun to waist height. The deceased made a sudden movement, something hit the appellant‘s head and the gun discharged. The appellant admitted to pointing the gun with the intention of frightening the deceased, but denied having deliberately pulled the trigger. He was convicted of murder.
85 Gaudron J, adopting the analysis of Barwick CJ in Ryan, held that it was ultimately for the jury to determine what act or acts were done by the appellant and whether that act or those acts caused the deceased’s death.^[17] Her Honour, noting that difficulties such as these required solutions specific to the precise facts of each case, added:

The second matter that should be noted with respect to the analysis undertaken by Barwick CJ in Ryan concerns his Honour’s acceptance of the possibility that, in that case, pressure was applied to the trigger by a reflex or automatic motor action. The question whether a reflex or automatic motor action is an involuntary or unwilled act is a question for the jury. And on that issue, there is much to be said for the view expressed by Windeyer J in Ryan that the pressing of a trigger in response to a sudden threat or apprehension of danger is a probable and foreseeable consequence of presenting a loaded gun and a jury might, on that account, find it to be a voluntary act.^[18]

86 Similarly, Callinan J held:

[E]verything that has relevantly occurred before [the alleged act causing death], including the earlier relations between the victim and the accused, and the latter’s acts in placing himself in such a position as to give the ‘‘act’’ the capacity to inflict harm, will have much to say about its true nature, that is, whether it was willed or not, but those earlier acts will generally not constitute the ‘‘act’’ itself, or be a constituent part of it. It will be, however, for the jury so instructed, in reaching their verdict of guilty or not guilty, to determine whether in fact the prosecutor has negatived that the death resulted from an unwilled act (or accident).
There may be some cases in which a sequence of acts is so interconnected, or that the first, or an intermediate act in the sequence, has so inevitable an outcome that to regard the ultimate act as the ‘‘act’’ for the purposes of s 23(1)(a) would be artificial and unrealistic, but such cases will be rare.^[19]

87 In stronger terms, Gummow and Hayne JJ warned that it would be too narrow an approach to confine the ‘act’ to an immediate physical movement in response to a perceived threat. Their Honours held:

[I]t is necessary to focus upon the relevant ‘‘act’’. Once it is recognised that the act is the act of discharging the loaded shotgun it can be seen that the act comprises a number of movements by the appellant that can be identified as separate movements.
...
[O]nce it is recognised that the relevant act in this case is the act of discharging the loaded shotgun, it can be seen that whether or not particular elements of that composite set of movements (load, cock, present, fire) were the subject of conscious consideration by the appellant, there is no basis for concluding that the set of movements, taken as a whole, was not willed.^[20]

88 Kirby J held that in the circumstances of the case, the relevant acts referred to in s 23(1)(a) included whatever the appellant did to cause the gun to discharge.^[21]
89 In Koani v the Queen,^[22] the High Court revisited s 23(1)(a) of the Criminal Code (Qld). The accused was charged with the murder of his de facto partner, occasioned by a single gunshot wound. The Crown alleged that the accused discharged the shotgun deliberately and intentionally. The accused pleaded guilty to manslaughter but not murder. He was convicted by a jury of murder. On appeal, the High Court cited with approval the analysis of Windeyer J in Vallance v the Queen,^[23] where his Honour held that to wound a person by discharging a firearm is ‘a complex act, involving loading the piece, cocking it, presenting it, pressing the trigger.’^[24] Ultimately, however, the Court in Koani held that the determination of what constituted the act causing death was a factual question for the jury.^[25]
90 With reference to the circumstances of the case, the Court unanimously concluded that

... it was open to the jury to find that the appellant’s actions in loading the gun, presenting it to the deceased and pulling back the hammer were connected, willed, acts, which caused the death of the deceased, notwithstanding that the prosecution had not excluded the possibility that the appellant’s finger slipped on the shortened spur of the hammer before he completed the action.^[26]

Different verdicts for principal and secondary offenders

91 The Crown referred to a number of authorities where it was said a secondary party to an unlawful killing could be convicted of manslaughter while the principal offender was convicted of murder. The accused accepted these authorities, but maintained that their reasoning did not apply to the present case as he did not become ‘involved in’ an agreement with Johnson to deliberately shoot the deceased (and did not assist, encourage or direct Johnson to do so).
92 It is necessary to examine some of these authorities in detail.
93 In Markby v The Queen,^[27] the applicant and a co-accused, Holden, met with the deceased to rob him, but under the pretence of selling him drugs. The applicant carried a dismantled rifle at Holden’s suggestion. The two men assembled the rifle. As the applicant was speaking to the deceased, the rifle held by Holden discharged and the deceased was shot in the head at close range. The trial judge directed the jury that the applicant could only be found guilty of manslaughter if Holden was also guilty of manslaughter and not of murder. Gibbs ACJ, with whom the other members of the Court agreed) held:

‘It was erroneous [for the trial judge] to tell the jury that the applicant could be found guilty of manslaughter only if Holden also was guilty of manslaughter and not of murder. When two persons embark on a common unlawful design, the liability of one for acts done by the other depends on whether what was done was within the scope of the common design. Thus if two men go out to rob another, with the common design of using whatever force is necessary to achieve their object, even if that involves the killing of, or the infliction of grievous bodily harm on, the victim, both will be guilty of murder if the victim is killed: Reg. v Lovesey. If, however, two men attack another without any intention to cause death or grievous bodily harm, and during the course of the attack one man forms an intention to kill the victim, and strikes the fatal blow with that intention, he may be convicted of murder while the other participant in the plan may be convicted of manslaughter: Reg. v Smith (Wesley); Reg. v Betty; Reg. v Lovesey. The reason why the principal assailant is guilty of murder and the other participant only of manslaughter in such a case is that the former had an actual intention to kill whereas the latter never intended that death or grievous bodily harm be caused to the victim, and if there had not been a departure from the common purpose the death of the victim would have rendered the two participants guilty of manslaughter only. In some cases the inactive participant in the common design may escape liability either for murder or manslaughter. If the principal assailant has gone completely beyond the scope of the common design, and for example ‘has used a weapon and acted in a way which no party to that common design could suspect’, the inactive participant is not guilty of either murder or manslaughter: Reg. v Anderson; Reg. v Morris. If, however, the use of the weapon, even if its existence was unknown to the other party, is rightly regarded as no more than an unexpected incident in carrying out the common design the inactive participant may be convicted of manslaughter: Varley v The Queen.^[28]

94 Gillard v the Queen^[29] involved two men, the appellant and another, Preston, who drove to a car repair workshop of a man named Knowles. At Preston’s request, the appellant had secured a stolen vehicle to drive to the premises and telephoned the workshop in advance to confirm Knowles would be there. Preston entered the workshop with a loaded gun and shot and killed Knowles and another man. The trial judge directed the jury that the only available verdicts for both the appellant and Preston in respect of the two deaths were murder. Manslaughter was not left to the jury as an available alternative.
95 The High Court held that manslaughter should have been left to the jury in the appellant’s case and reasoned that a secondary party could be guilty of manslaughter if he had foreseen a possibility that the principal offender might shoot, but had not foreseen shooting with intent to kill or cause grievous bodily harm. The culpability of that secondary offender would depend on the scope of the common design and that foresight of probability as to the principal’s actions.^[30]
96 It is useful to note the remarks of Hayne J in considering whether manslaughter was a verdict available to the jury in respect of the appellant:

[I]t would have been open to the jury to conclude that the appellant and Preston had shared a common purpose: that Preston would enter the workshop and point the weapon at one or more of those at the premises. The pointing of the weapon would be a criminal purpose, it being intended to do so at least as an assault on the victim.
The existence of a common purpose identified in this way would not be denied if the jury concluded that the appellant and Preston had different ideas about why the weapon was to be produced (Preston’s intention being to use it to kill and the appellant’s intention being that it should be used to intimidate or frighten). Rather, the common purpose of the two parties would be more limited than the larger purposes intended by one of them.
The question for the jury would then have become, what did the appellant contemplate might happen if Preston presented a firearm in the workshop? If, as the prosecution contended at trial, the jury were to conclude that Preston must have produced the weapon and cocked it in the van before he got out, it would be open to the jury to conclude that the common purpose of the parties extended to the pointing of a loaded and cocked firearm at one or more of those in the workshop. If that were so, and if the prosecution failed to establish its principal contention, that the appellant had contemplated the deliberate use of the weapon to kill or do grievous bodily harm, the appellant would, nonetheless, be guilty of manslaughter by unlawful and dangerous act. On this hypothesis, Preston would have gone beyond what had been agreed and contemplated by the appellant when he deliberately shot those in the workshop, but the presentation of the loaded and cocked firearm would have been within the scope of the common purpose.^[31]

97 Similarly, the remarks of Kirby J are instructive in light of the circumstances in the present case:

To the complaint that joint liability for the proved common purpose was thereby cast too widely, so as to catch a co-offender who did not perform the critical acts and shared no intention concerning the consequences caused by those acts, the law’s answer, as stated by this Court, is as follows: Those who participate in activities highly dangerous to life and limb share equal responsibility for the consequences of the acts that ensue. This is because, as the law’s experience shows, particularly when dangerous weapons are involved in a crime scene, whatever the actual and earlier intentions of the secondary offender, the possibility exists that the primary offender will use the weapons, occasioning death or grievous bodily harm to others. The law then tells the secondary offender not to participate because doing so risks equal inculpation in such serious crimes as ensue.^[32]

98 In Nguyen v the Queen,^[33] the accused accompanied two others, Khoa and Ho, to a flat to collect a drug debt. The accused presented a samurai sword and waved it at the occupants, asking for the debtor. He injured two of the occupants. Ho then produced a previously concealed pistol and shot two of the occupants, wounding one and killing another. The accused, Khoa and Ho were all convicted of murder and attempted murder. The High Court considered whether the trial judge had erred in directing the jury that if they found Ho guilty of murder, there was no case of manslaughter in respect of the accused.
99 The Court unanimously held:

If [the accused] was party to an agreement, or had a contemplation, or provided assistance directed to some lesser assault than one intended to kill, it would have been open to the jury to conclude that, although he was not guilty of the charge of attempted murder, a verdict of manslaughter should be returned in respect of the count charging him with murder.^[34]

100 In the instant case there is evidence to suggest that any agreement between the accused and Johnson involved, at the very least, the bringing of the loaded shotgun to the deceased’s property to threaten him. This evidence, whilst ultimately a matter for interpretation by a jury, is crucial to the distinction between charges of murder and manslaughter.
101 Returning to this distinction as articulated in Markby, Gibbs ACJ’s remarks were cited by the Court of Appeal in Smith & Ors v the Queen.^[35] In Smith, Weinberg JA (with whom Ashley and Tate JJA agreed) stated:

[The trial judge] treated Markby as authority for the proposition that a conviction for manslaughter was legally available in circumstances where one of two parties to an agreement to commit an offence involving the use of violence suddenly, and unexpectedly, formed the intent to kill or cause really serious injury, while the other never intended to go beyond simply causing injury. In my opinion, his Honour was correct to view Markby in that way.^[36]

102 His Honour went on to say:

As the trial judge said, it is not the law that the existence of murderous intent on the part of one offender precludes a finding as against another that he was involved in the commission of an unlawful and dangerous act. Nor does the sudden emergence of a murderous intent in such a case necessarily, and of itself, break the chain of causation. The question for the jury in this case was whether the unlawful and dangerous act, if that was what they found it to be, was a substantial and operating cause of [the deceased’s] death. By their verdicts, the jury answered that question affirmatively. On the evidence, they were entitled to come to that conclusion.^[37]

103 Notably, these authorities pre-date reforms to the law of complicity in Victoria. To ascertain the currency of the common law position as stated above, it is useful to consider the findings of this Court in Novakovic.
104 Novakovic concerned a detailed examination of the statutory complicity provisions with respect to murder and manslaughter following the abolition of complicity at common law^[38] and the insertion of Division 1 of Part II into the Act in November 2014. In Novakovic, Croucher J considered whether two men charged with murder and manslaughter as secondary parties under the complicity provisions each had a case to answer in circumstances where a fight had broken out at a restaurant and the principal offender had stabbed the deceased man.
105 His Honour held that a secondary party could be charged with manslaughter while a principal was charged with murder under any of the limbs of statutory complicity contained in s 323(1) of the Act.
106 It is necessary to briefly extract the relevant portions of his Honour’s analysis as follows. First, reference was made to the Explanatory Memorandum to the Bill introducing the complicity provisions:

New section 323(1)(a) covers the behaviour that would be covered by aiding, abetting, counselling and procuring at common law. The reference to ‘intentionally’ is consistent with the fault element required by Giorgianni v R [1985] HCA 29; (1985) 156 CLR 473. That is, the person must have intended to assist etc. another to commit a particular offence.
New section 323(1)(c) covers group activity that would be covered by the common law doctrines of acting in concert, joint criminal enterprise and common purpose.^[39]

107 The common law position in relation to accessorial liability was then examined. His Honour noted that Giorgianni (a case involving charges of culpable driving causing death) held that the requisite intent and knowledge of a secondary party need only extend to the doing of the unlawful act by the principal offender, but not the death or grievous bodily harm which might ensue upon commission of the unlawful act.^[40] His Honour found that the same principle applied to manslaughter:

It would seem to follow, from Giorgianni itself, that the accessory, when intentionally assisting or encouraging the principal, must know or believe that the principal is committing or will commit an act which is unlawful and, objectively, meets the test of dangerousness, as the law defines it.
Thus, if the act that the accessory intentionally and knowingly assisted or encouraged the principal to perform amounted to an unlawful assault, and was committed in circumstances which a reasonable person in the position of the accessory would have realised that the act was exposing the deceased to an appreciable risk of serious injury, and the deceased died as a result of that act, the accessory would be guilty of manslaughter. However, the accessory need not have realised that the act was a breach of the law or that it would cause death. Nor need the accessory know or believe that the act would create an appreciable risk of serious injury.^[41]

108 In relation to liability under s 323(1)(c), His Honour held that if a secondary party entered into an agreement, arrangement or understanding that the principal would commit an unlawful act which was objectively dangerous by law and the deceased died as a result of that act, the secondary party could be found guilty of manslaughter.^[42]
109 I do not see any good reason to depart from the reasoning in Novakovic.

Analysis

110 In this case the Crown relies upon ss 323(1)(a) and (c) and 324 of the Act to prove the accused committed manslaughter.
111 The Crown has identified the accused’s involvement in the unlawful and dangerous act as encompassing the following:

(a) Travelling with Johnson, in the early hours of the morning, to the deceased’s premises whilst aware that Johnson was armed with a loaded, sawn off shotgun.
(b) Approaching the deceased (and Warby and McDonald) with Johnson as he discharged a round from the shotgun and yelled at the men to get to the ground.
(c) Verbally and physically confronting the deceased in the presence of Johnson.
(d) Being present when Johnson struck the deceased with the gun (after the accused had asked the deceased where the CCTV recording box was).
(e) Entering the shed to locate and remove the recording box of the CCTV system while Johnson stood with the loaded shotgun near the deceased, Warby and McDonald.

112 In light of the Crown case as stated above, the second basis for the stay application rests on the determination of two interrelated questions.
113 First, what was the relevant ‘act causing death’? Was it the series of acts leading up to the fatal shooting, as the Crown puts it, or was it simply and separately the shooting of the deceased by Johnson with murderous intent?
114 The authorities reviewed above make plain that determination of the act causing death is a matter for the jury. It is, of course, open to the accused to argue as a question of fact that the shooting of the deceased by Johnson was an intervening act limited to the pressing of the trigger accompanied by murderous intent. And, that that act was so far beyond the scope of the agreement (or encouraged act) to attend the deceased’s premises to menace him with a loaded shotgun as to make it not reasonably foreseeable. But, there is nothing in the evidence or in law that compels that conclusion. It is open to find that the unlawful and dangerous act of bringing the firearm to the premises and wielding it to threaten the deceased was a substantial and operating cause of death. The question will be resolved by the jury.
115 Second, was the accused ‘involved in’ the unlawful and dangerous act causing death, in the sense required by s 323(1)(a) or (c)? It is not disputed that the accused was knowingly party to the taking of the loaded shotgun to the deceased’s premises. It can be inferred that the accused meant to confront the deceased with Johnson while Johnson was so armed. The accused did not dissociate himself from Johnson after the firearm was first discharged. He did not dissociate himself from Johnson after the three men were ordered to the ground whilst Johnson effectively stood guard, armed. He then asked the deceased where the CCTV recording box was, remained in the vicinity when Johnson struck the deceased with the gun and awaited his reply, all of which suggests that the accused did not dissociate himself from Johnson by going to search for the CCTV box. It is open to infer that he did so as part of the agreement. That is, to remove a recording that would implicate both himself and Johnson in the act of threatening the accused with a firearm.
116 If Johnson unexpectedly formed murderous intent whilst the accused was searching for the CCTV recording box, then, to use the language of Hayne J in Gillard, the common purpose of the two would be more limited than the larger purpose of the one. But, the accused is charged with manslaughter. And, it is open to find that the presentation of the loaded and cocked firearm was within the scope of the agreement (or encouraged act). Indeed the firearm had already been discharged once as part of that agreement.
117 In other words, if a jury were to find that the accused intentionally and knowingly agreed to or assisted Johnson to present the loaded shotgun at the deceased, it would be open to find that a reasonable person in his position would have realised that that act exposed the deceased to an appreciable risk of serious injury and also that the deceased died as a result of that act. That remains so whether Johnson is guilty of murder or manslaughter.
118 It is necessary to also address a subsidiary argument made by the accused.
119 It was submitted that for approximately two years the Crown had not alleged that the accused was involved in the ‘act’ that caused the deceased’s death, being Johnson’s ‘intentional shooting’ of the deceased in the head at close range. Rather, the Crown had, prior to Johnson’s plea to manslaughter, clearly ‘isolated or separated’ that intentional shooting from the case against him; that he was in effect ‘carved out’ from it. It was argued that this was the effect of the Previous Opening reproduced at paragraph 42 above. There was only one act causing death alleged and that was the ‘intentional shooting’. The accused was expressly said to be complicit in everything but that act. And, the accused submitted that in the absence of the intentional shooting allegation, he now does not know what the act causing death is alleged to be.
120 That argument has no basis. The phrase ‘intentional shooting’ is not indivisible. While the murder charge against Johnson subsisted, the accused was ‘carved out’ not from the fact of the shooting, but from the description of that shooting as intentional. As against Johnson the Crown case was that murderous intent was formed at the time of the shooting. As against the accused the Crown case was that the substantial and operating cause of death was the fatal shooting that occurred as part of the unlawful and dangerous act of bringing and wielding a loaded shotgun. As discussed above, such formulation is valid in law and open on the evidence. Further, the Crown has identified the unlawful and dangerous act alleged to have caused the deceased’s death.

Evidence of the sexual relationship between Forge and the deceased

121 The accused objects to the admissibility of evidence that he was aware of and upset about the sexual relationship between his ex-partner Forge and the deceased during the currency of his relationship with Forge.
122 The primary objection is that the evidence is not relevant. It is submitted that the accused’s motivation to attend the deceased’s premises arose from recovery of the stolen gas bottle rather than any feeling of jealousy. The accused further submits that if relevant, the evidence should be excluded pursuant to s 137 of the Evidence Act 2008 (‘Evidence Act’). It is argued that the evidence would seduce a jury to reason that the events were ‘pay-back’ and that such a train of thought occasions prejudice that outweighs any probative value. The latter argument was narrowed in oral submissions to the prejudice involved in the phrases used by the accused to describe Forge, such as ‘dirty little whore’.
123 The Crown submitted that the evidence was relevant. It was a necessary component of the material that established the relationships between those involved. That the deceased used to be a friend and was a ‘bit of a dog’ for taking up with Forge makes it more probable that the accused entered the alleged arrangement with Johnson, including taking a loaded shotgun to recover stolen property. The Crown further submitted that there was no unfair prejudice. The concept of a ‘jilted boyfriend’ is well within the understanding of a jury.

Analysis

124 In my view the evidence is relevant. The accused’s animus towards the deceased was of some standing. It peaked with his belief that the deceased had possession of the stolen gas bottle. But the accused’s knowledge of Forge’s involvement in the theft and her relationship with the deceased makes the nature of the relationship between all the parties relevant. It is to be remembered that Forge gave the deceased the gas bottle. It can be logically reasoned that the accused’s upset with Forge and the deceased because of their sexual relationship strengthened his resolve to agree with Johnson to attend the deceased’s premises with a loaded shotgun when the deceased was present. Section 55(1) of the Evidence Act is clearly satisfied.
125 Further, I am of the opinion that the probative value of the evidence is not outweighed by its prejudicial effect. The Crown case is not that the deceased was shot because of ‘payback’ for the relationship between Forge and the deceased. If there is any likelihood of the jury so reasoning, that can be corrected by judicial direction. Further, the phrases used by the accused to describe both Forge and the deceased may be intemperate, but are readily understandable in the context of him becoming aware of a secret relationship between an ex-friend and an ex-partner, particularly when he had fallen out with both of them.
126 The evidence of the sexual relationship between Forge and the deceased will be admitted.

Suppression order application

127 On 22 April 2022 the accused made an application for a proceeding suppression order over Johnson’s plea to manslaughter. That application was made orally on the plea date and without notice being given under s 10(1) of the Open Courts Act 2013 (‘OC Act’). In the circumstances I made an interim order pursuant to s 20(1) of the OC Act, which did not require me to determine the merits of the application.
128 Subsequently, the accused filed the requisite documents and the Court gave news media organisations notice of this application pursuant to s 11(1) of the OC Act.
129 On 2 May 2022, I heard the application. The accused sought that the fact that Johnson had been arraigned and pleaded guilty to manslaughter be supressed. The accused submitted that there has been significant publicity in the Bendigo area about the case. It was stated that that publicity refers to Johnson and the accused as a twosome – the ‘Daltons Bridge Duo’. It was argued that the fair trial of the accused would be impaired if Johnson’s plea to manslaughter were publicised. Prospective jurors would reason that if one was guilty of manslaughter then the other must be too, they would remember that the plea was to manslaughter and not murder and they would understand the difference between the two.
130 The accused filed no evidence as to the ‘significant publicity’ the matter had received.
131 The application was not opposed by the Crown. It was submitted that the trial of the accused would involve arguments as to the distinction between murder and manslaughter and that prospective jurors should not be aware of Johnson’s admission of guilt to manslaughter.
132 No news media organisations sought to be heard in relation to the application.
133 On the same date, I extended the interim order until the ruling on the pre-trial issues had been given.^[43]
134 Section 18(1)(a) of the OC Act allows me to make a proceeding suppression order if I am satisfied that it is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonable means.
135 Given the manner in which the pre-trial argument developed, it is clear that at trial the accused will argue to the jury that Johnson is guilty of murder. In such circumstances, the jury should not be informed that he pleaded guilty to manslaughter. If there is publicity of Johnson’s plea to manslaughter, a question arises as to whether prospective jurors in the Bendigo catchment area would remember that very specific fact of the plea being in respect of manslaughter and not murder.
136 There will, of course, be no dispute that Johnson fired the shot. Johnson’s plea hearing is listed for 16 September 2022. The trial of the accused is listed to commence on 21 November 2022. And, as I have said, there is no evidence as to how extensive past publicity of the incident has been.
137 One of the main purposes of the OC Act is to recognise and promote the principle that open justice is a fundamental aspect of the Victorian legal system.^[44] Noting this, I have queried whether the risk to the proper administration of justice can be prevented by judicial directions given at the trial of the accused.
138 On balance and out of an abundance of caution, given that there is likely to be localised press interest and that the difference between manslaughter and murder will be central in the trial of the accused, I am of the view that any jury directions about Johnson’s plea will highlight the fact that he has been found guilty of manslaughter rather than murder. I will therefore make a suppression order prohibiting the reporting by publication (or otherwise) of Johnson’s plea until the return of the verdict in the trial of the accused.

Conclusion

139 The application for a permanent stay of the trial is refused.
140 The evidence concerning the accused’s knowledge of and statements about the sexual relationship between Forge and the deceased is admitted.
141 Pursuant to s 17 of the OC Act, publication of the details of Kevin Johnson's arraignment and plea of guilty to a charge of manslaughter in the Supreme Court of Victoria on 22 April 2022 is prohibited until the return of the verdict in the trial of the accused.

^[1] Drawn from the Amended Summary of Prosecution Opening for Trial dated 28 April 2022 (‘April 2022 Opening’).

^[2] Paragraphs 30 to 36 of the April 2022 Opening had not altered.

^[3] Re Oberin [2022] VSC 17 (‘Re Oberin’), [16]-[17].

^[4] [2020] VSCA 307 (Maxwell P, Priest and T Forrest JJA) (‘Hansen’).

^[5] Re Oberin, [9].

^[6] [2019] VSC 339 (‘Novakovic’) (Croucher J).

^[7] Act, s 421.

^[8] Consequently there is no need to detail the authorities concerning the very limited circumstances in which an abuse of process will found a permanent stay.

^[9] Most of these authorities involve a charge of murder and consider the word ‘act’ in the context of whether the ‘act’ causing death was committed voluntarily. However, they remain relevant to the present analysis as they consider the event or events in each case constituting the ‘act causing death.’

^[10] (1990) 171 CLR 30 (‘Falconer’).

^[11] Falconer, 38-39 (Mason CJ, Brennan & McHugh JJ) (citations omitted).

^[12] [1967] HCA 2; (1967) 121 CLR 205 (‘Ryan’).

^[13] Ibid 231 (Taylor & Owen JJ), 233 (Menzies J) and 245 (Windeyer J).

^[14] Ibid 245.

^[15] Ibid 218.

^[16] [2002] HCA 26; (2002) 211 CLR 193 (‘Murray’).

^[17] Ibid 199-200 [14]-[17].

^[18] Ibid 200 [16].

^[19] Ibid 236 [148]-[149].

^[20] Ibid 211 [53].

^[21] Ibid 219 [78(3)].

^[22] [2017] HCA 42; (2017) 263 CLR 427 (‘Koani’).

^[23] [1961] HCA 42; (1961) 108 CLR 56 (‘Vallance’).

^[24] Ibid, 80.

^[25] Koani, 441 [39].

^[26] Ibid 441-442 [39].

^[27] [1978] HCA 29; (1978) 140 CLR 108 (‘Markby’).

^[28] Markby¸ 112-113 (citations omitted).

^[29] [2003] HCA 64; (2003) 219 CLR 1 (‘Gillard’).

^[30] Gillard, 14 [25] (Gleeson CJ & Callinan J with Kirby J agreeing), 38 [117]-[120] (Hayne J, with Gummow J agreeing).

^[31] Ibid 40 [126]-[128].

^[32] Ibid 24 [62].

^[33] [2010] HCA 38; (2010) 242 CLR 491 (‘Nguyen’).

^[34] Ibid 505, [49].

^[35]  [2012] VSCA 5 , (‘Smith’).

^[36] Smith, [175].

^[37] Ibid [218].

^[38] Act, s 324C.

^[39] Explanatory Memorandum, Crimes Amendment (Abolition of Defensive Homicide) Bill 2014, p 13.

^[40] Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473, 501-503 (Wilson, Deane & Dawson JJ).

^[41] Novakovic, 86 [318] (citations omitted).

^[42] Ibid 79 [282].

^[43] Although s 20(4) of the OC Act requires the substantive application to be determined as a matter of urgency where an interim order is made, in this case the complex nature of the pre-trial argument was central to the suppression order issue. It needed to be resolved before the merits of the application could be determined. Further, no media representative appeared to argue against the application.

^[44] OC Act, s 1(aa).