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DPP v Lawson & Ors (Ruling No 3) [2012] VSC 526 (1 November 2012)

Last Updated: 16 November 2012

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0071 of 2012

No. 0072 of 2012

No. 0073 of 2012

DIRECTOR OF PUBLIC PROSECUTIONS

V

MATTHEW LAWSON CAMERON SANDERSON BENJAMIN VIGO

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATES OF HEARING:	31 October, 1 November 2012
DATE OF RULING:	1 November 2012
CASE MAY BE CITED AS:	DPP v Lawson & Ors (Ruling No 3)
MEDIUM NEUTRAL CITATION:	[2012] VSC 526

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CRIMINAL LAW -- Submission of no case to answer -- Section 299 Criminal Procedure Act 2009 -- Manslaughter by unlawful and dangerous act -- Whether evidence of causation -- Whether evidence that the actions of the accused were dangerous -- Joint criminal enterprise -- Whether evidence of agreement -- Whether evidence of aiding and abetting

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A Tinney SC with Ms N Warda	The Office of Public Prosecutions

For the accused Lawson	Mr I Hill QC with Ms R Shann	Tony Hargreaves and Partners
For the accused Sanderson	Mr M Tovey QC with Mr D Dann
For the accused Vigo	Mr G Steward

HIS HONOUR:

1 In this trial, the accused Matthew Lawson and Cameron Sanderson are both charged with the manslaughter of Anthony Dunning. The accused Benjamin Vigo is charged with assaulting Mr Dunning. These charges arise out of an incident which occurred at Crown Casino on the night of 3 July 2011 and the death of Mr Dunning occurring four days later in the Alfred Hospital on the afternoon of 7 July 2011. In summary form, the incident involved Dunning, a patron at the casino, being put to the ground and restrained there by the security staff of Crown Casino, including, to varying degrees, the three accused. The relevant facts are described more fully at paragraphs [30] – [35] (below).

2 Each accused has pleaded not guilty to the charge he faces. The case for the prosecution has now closed and each accused has made a submission that there is no case for him to answer, in the case of Lawson and Sanderson, on the count of manslaughter, and, in the case of Vigo, on the count of assault. The procedure for this process is set out in s 229 of the Criminal Procedure Act 2009.

3 In dealing with applications of this kind, the Victorian Court of Criminal Appeal in Attorney-General’s Reference (No. 1 of 1983),[1] made it clear that:

The question whether the Crown has ultimately excluded every reasonable hypothesis consistent with innocence is a question of fact for the jury and therefore, if the Crown has led evidence upon which the accused could be convicted, a trial judge should not rule that there is no case to answer or direct the jury to acquit simply because he thinks that there could be formulated a reasonable hypothesis consistent with the innocence of the accused which the Crown has failed to exclude. Similarly a trial judge should not rule that there is no case for the accused to answer because he has formed the view that, if the decision on the facts were his and not the jury's, he would entertain a reasonable doubt as to the guilt of the accused. It is always a question for the jury whether a reasonable doubt exists as to the guilt of the accused....

4 Further, the test identified by the High Court to determine whether there is a case to answer is clear enough. In R v Doney,[2] the High Court confirmed the decision of Attorney-General’s Reference (No. 1 of 1983) which included the rejection of the view that a trial judge could stop the trial if, in his or her opinion, a verdict of guilty would be unsafe or unsatisfactory. The High Court stated the test in the following terms:[3]

It follows that if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations, and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or to put the matter in more usual terms a verdict of not guilty may be directed only if there is a defect in the evidence, such that taken at its highest it will not sustain a verdict of guilty.

5 In Case Stated by Director of Public Prosecutions (No. 2 of 1993),[4] King CJ said:

It follows from the principles as formulated in Bilick in connection with circumstantial cases, that it is not the function of the judge in considering a submission of no case to choose between inferences which are reasonably open to the jury. He must decide upon the basis that the jury will draw such of the inferences which are reasonably open, as are most favourable to the prosecution. It is not his concern that any verdict of guilty might be set aside by the Court of Criminal Appeal as unsafe. Neither is it any part of his function to decide whether any possible hypotheses consistent with innocence are reasonably open on the evidence (see A-G’s Reference (No. 1 of 1983) [1983] VicRp 101; [1983] 2 VR 410; Thorp v Abbotto [1992] FCA 112; (1992) 34 FCR 366; 59 A Crim R 208). He is concerned only with whether a reasonable mind could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing hypotheses as not reasonably open on the evidence.

The Chief Justice went on to say:

I would re-state the principles, in summary form, as follows. If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.

6 So, what I am concerned with in hearing these submissions is whether there is direct evidence, even if tenuous or inherently weak, which can be taken into account by the jury to support a verdict of guilty. The fact that a reasonable hypothesis consistent with innocence can be formulated does not mean there is no case for the accused to answer; the question is whether, to the reasonable mind, inferences of guilt are reasonably open. Whether a verdict of guilty could be later set aside by the Court of Appeal as unsafe is not part of my concern in determining these issues.

Unlawful and dangerous act manslaughter

7 There are four elements of manslaughter by unlawful and dangerous act:

1. that the accused committed the act that caused the death of Anthony Dunning;

2. that the relevant act was committed consciously, voluntarily and deliberately;

3. that the relevant act was unlawful; and

4. that the relevant act was dangerous.

8 In this case, elements 1, 3 and 4 are in significant issue and in the present application, Ms Shann submits on behalf of Lawson that there is no case to answer as there is no evidence on which a jury could be satisfied of elements 1, 2 and 4 beyond reasonable doubt. Mr Tovey QC, on behalf of the accused Sanderson, adopted Ms Shann’s submissions as to causation and further submitted there was no evidence as to elements 3 and 4.

9 The Crown case is that the person who committed the acts which caused the death of Dunning was Lawson. The case against Sanderson is put on the basis of either a joint criminal enterprise with Lawson or aiding and abetting Lawson. As I will shortly explain, my view is that the case against Sanderson should only be left to the jury on the basis of aiding and abetting. The case against Vigo is quite separate from the alleged manslaughter and concerns one act by him only which is alleged to amount to an assault.

10 I will deal first with the case against Lawson and then the cases against Sanderson and Vigo.

Lawson - Causation

11 During the submissions, the evidence of causation was the central basis on which it was argued I should remove the case from the jury’s consideration.

12 On this element of the offence of manslaughter, the question for the jury will be whether or not the conduct of the accused Lawson aided and abetted by Sanderson have “contributed significantly to the death of the deceased man or been a ‘substantial and operating cause of it’”.[5] The jury would be entitled to conclude that at the time the deceased man fell to the floor under the force exerted on him by the individuals involved he was alive and conscious and that he suffered the cardio-respiratory arrest which led to his death some time between 22:47:10 and 22:49:30 by which time he was clearly not moving. The more refined question of causation is therefore whether or not the conduct of the accused Lawson contributed significantly to or was a substantial and operating cause of the cardio-respiratory arrest.

13 This question is centrally concerned with the evidence of the pathologist Dr Noel Woodford, who conducted the post-mortem examination on the body of Anthony Dunning. That post-mortem occurred on 8 July 2011, the day after the death of Dunning but 5 days after the incident at Crown casino. In his evidence, Dr Wooford has identified a cause of death as:

...global ischaemic brain injury following cardiorespiratory arrest during prone restraint (including pressure on the neck) of an obese male with cardiomegaly.^[6]

Dr Woodford was extensively examined and cross examined on behalf of Mr Lawson about the contributing factors in the death of Mr Dunning.

14 In the submission that Lawson has no case to answer, Ms Shann put forward a comprehensive argument. She submitted that Crown case failed, and in particular on this element, because “...no properly instructed jury could be satisfied beyond reasonable doubt that any unlawful and dangerous act of Lawson were a significant cause of Dunning’s death.” She went on to argue that the only way a jury could reason to guilt on this element was by a process of “suspicion together with speculation and conjecture”.[7]

15 Ms Shann submitted that the problem with Dr Woodford’s evidence was that whilst he made positive findings about the diseased heart of the deceased, there is no positive finding consistent with splinting of the diaphragm, occlusion of the airway or vagal nerve stimulation causing cardiac arrest. It is unlikely that the deceased died purely of asphyxiation. To the extent that Dr Woodford relied on what he described as the “context”,[8] he cannot identify the extent to which any of the events to which he refers actually caused the cardiac arrest or when it occurred. It was submitted that even if the jury accepted each of Dr Woodford’s key findings, they could not find Lawson’s acts were a substantial cause of death beyond reasonable doubt.[9]

16 After analysing the evidence of Dr Woodford, it was submitted that there is an alternative hypothesis consistent with innocence which could not be rejected by the jury. The deceased had a “weak and diseased” heart, it was argued. It was ultimately put that stress the deceased experienced prior to being felled by Lawson coupled with his enlarged heart means that Lawson’s acts were not a substantial cause of Dunning’s death. Mr Tinney SC, on behalf of the Director of Public Prosecutions, submitted that was fanciful. With due respect, I agree.

17 In the New South Wales case of R v Moffatt,[10] the accused had been convicted of murder after a trial before a judge alone and was appealing that conviction. The inquiry in that case was therefore different to the task that I am confronted with here – whether to leave the case for the consideration of the jury. The analysis of the question of causation is nevertheless relevant and applicable.

18 The single issue in the trial had been whether or not the Crown could prove beyond reasonable doubt that the death of the deceased was caused by the appellant. The killing occurred in circumstances of extreme alcohol consumption and where there was a number of possible causes of death. The evidence indicated that the blood alcohol level of the deceased was 0.482% and in his urine even higher. Expert evidence indicated that a reading of 0.482% was likely to result in coma and most likely in death except in people with an extreme tolerance to alcohol. The post-mortem indicated that the factors contributing to death were the combined effects of compression of the neck, blunt force chest injury and acute ethanol intoxication. A fourth significant condition of the deceased was noted that he had a 75% occlusion of the coronary artery which made him vulnerable to the risk of sudden death without prior warning.

19 In his evidence, the pathologist Dr Lawrence, referred to a change in colour of the tongue of the deceased being consistent with him being strangled but he conceded that a blue tongue could also be indicative of death from a heart attack or from alcohol poisoning. He noted there were no signs of petechial haemorrhages which was a common sign in cases of manual strangulation. In his evidence, the doctor agreed that based on the autopsy findings he could not attribute to any one of the likely causes identified, being compression, acute alcohol toxicity and cardiac arrest due either to atherosclerosis or to blunt chest trauma, a higher degree of probability than another.

20 Another possibility that emerged in the evidence of the pathologist related to the circumstance that manual strangulation can lead to sudden death where there is an interference with the carotid sinus and vagus nerve, and that this consequence is more likely in a person predisposed to cardiac arrest. Such a circumstance might well have explained the lack of petechial haemorrhage.

21 The New South Wales Court of Criminal Appeal stated:[11]

It does not matter that there is more than one cause of death (see Butcher [1986] VicRp 4; (1986) VR 43) even if the victim is suffering from a condition that is threatening death, so long as the contribution of the accused later mentioned is present. It is indeed a misapplication of principle to attempt to search for a principal cause of death.
In the present case, it is true, the appellant was confronted with a man who was susceptible to sudden death, because he had atherosclerotic disease, because his blood alcohol level approached a lethal level, and because he suffered from alcohol related liver disease, which may have reduced his resistance and otherwise impaired his health.
Having noted that the precise mechanism of death was “obscure” in those circumstances and upon the pathology, his Honour correctly in my view identified the issue for determination as being whether, by his actions, the appellant accelerated the death of the deceased in a way that met the test of causation. (citations removed)

22 This case demonstrates that Ms Shann’s submissions to some degree misconstrue the proper uses to which a jury may put expert evidence. There, it was open to the finder of fact to conclude beyond reasonable doubt and without speculating that the actions of the accused caused the death of the deceased, even where Dr Lawrence could not rule out possible alternatives.

23 It is true that in that case the accused had made several admissions about the manner in which he attacked the deceased which tended to exclude alcohol toxicity as a cause of death. He said he put his hands around the neck of the deceased and did not let go until the deceased stopped breathing and he had observed the physical consequences of what he was doing in the deceased. However, this does not render Moffatt as distinct as Ms Shann would have it. In this case, we have video footage showing the accused Lawson applying force to the deceased in a manner said by a medical professional to have been likely to cause compression of the airway, stimulation of the vagus nerve and splinting of the diaphragm. The footage also demonstrates that the deceased suffered a cardio-respiratory arrest within minutes of this application of force. With that additional evidence, it would not be “idle speculation”[12] for the jury to accept that what Dr Woodford described as “likely” did in fact happen and did in fact cause death.

24 As to Dunning’s apparent predisposition or weakness in respect of cardiac arrest, in Moffatt, the Court of Criminal Appeal referred to the trial judge reaching his conclusions after considering the evidence of Dr Lawrence and also of Dr Byron Collins and noted that “the appellant, having used violence on the deceased, had to take him as he found him.”[13] A number of authorities were cited supporting the proposition that the presence of a constitution or defect unknown to the assailant which makes the victim more susceptible to death than would be a person in normal health does not enable the assailant to claim that the death is an accident. The Court of Criminal Appeal noted that the trial judge directed himself in accordance with the judgment of the High Court in Royall where the court referred to the comments of Burt CJ in Campbell v R.[14] The Court of Criminal Appeal then said:[15]

What is clear is that the act of the appellant must have more than a coincidental or insignificant effect – rather it must be a substantial contribution towards the death of the deceased. Although there has been some debate as to whether the expression “significant” is interchangeable for ‘substantial’ in this context I am content to accept for the present purpose the latter. (citations removed)

25 It is to be remembered that the law says that the conduct of the accused need not be the sole cause of the death of the deceased but must be a substantial cause of it. In R v Hallett,[16] the Court noted:

The question to be asked is whether an act consciously performed by the accused is so connected with the event that it must be regarded as having sufficiently substantial causal effect which subsisted up to the [death of the deceased] without being spent, or without being in the eyes of the law sufficiently interrupted by some other act or event.

In Campbell v R,^[17] in a passage accepted by the High Court in Royall,^[18] Burt CJ said:

It would seem to me to be enough if juries were told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter.

26 In accordance with the test on a no case submission, I need not satisfy myself that causation is established. As Brooking JA said in R v Franklin,[19] the issue of a cause of death is of course one of fact for the jury. In R v Evans & Gardiner (No 2),[20] the Court said:

The question whether the alleged act caused the death is not a question for the judge at a criminal trial. It is a question of fact for the jury.

As Barwick CJ said in Ryan v R:[21]

But the choice of the act causing death is not for the presiding judge or for the Court of Criminal Appeal: it is essentially a matter for the jury under proper direction.

27 The only question that I have to determine is whether there is evidence which would leave it open to the jury to conclude that the acts of the accused Lawson in the putting of the deceased to the floor and his subsequent restraint face down into the floor caused the death of Dunning.

28 The accused may be liable for “causing” a result even if his or her conduct was not the direct or immediate cause of that result and the accused does not need to be the sole cause of the result, in this case death.[22] A person can be criminally liable for something that has multiple causes even if he or she is not responsible for all those causes. It will be necessary for the jury to determine which of the accused’s acts caused the death of Mr Dunning if they are satisfied that they did.

29 The evidence indicates that until the deceased man was brought to the ground he was not suffering the effect of any medical emergency. It is clearly open to the jury to conclude that the medical emergency that did befall occurred as a result of him being put to the ground and what occurred thereafter. Dr Woodford ascribed the mechanisms of cardio-respiratory event which enables that conclusion.

30 In my opinion, on the issue of causation it is open to the jury to conclude as follows. As at 3 July 2011, Anthony Dunning was a morbidly obese man with a substantially enlarged heart. That condition may have predisposed him to the risk of cardiac arrest. On that day, with his two friends Matthew Anderson and Olivia Ferguson, he went to the football at the MCG. During that day, the three of them consumed alcohol to the extent that the blood alcohol concentration of the deceased was 0.19% when a sample was taken at the Alfred Hospital late on the night of 3 July 2011. After leaving the football and travelling by various means to the Crown casino, the deceased and his two friends engaged in gambling and drinking during the evening. Because the other two were wanting to go to the Food Court, the deceased man was, for a short period of time, alone in the vicinity of the Velvet Bar. He was then seen by the accused Lawson who determined that he was intoxicated. There is no contest that Dunning was affected by the liquor he had consumed.

31 Lawson, called for video “coverage”, which has resulted in the incident being largely captured on closed-circuit television (CCTV) footage, the most comprehensive version of which is contained in Exhibit F. Lawson then approached Dunning at 10:43:54 pm and informed him he had to leave the gaming floor. A number of other security personnel were in close proximity, as is the casino’s standard practice for “removals”. There was a conversation of some 20 seconds and Dunning began to follow Lawson out. At 10:44:26 pm, the two friends of Dunning reappeared and there was a further discussion about Dunning leaving. It can be concluded that Dunning did not wish to leave and protested for some two and a half minutes, sometimes stationary and sometimes walking towards the exit, before reluctantly agreeing to leave.

32 After Dunning has moved ahead of the group, at 10:46:53 pm, an incident occurred resulting in Ferguson and Anderson being put to the ground by security staff. At 10:47:03 Dunning becomes aware of the incident and tries to turn back to where his friends are. There is a scuffle which involves the accused Sanderson and Christian Luta, another member of security staff, and then Lawson charges at Dunning and that force takes him and the others to the ground. The CCTV footage records that the deceased hit the ground at 10:47:10 pm. At that point Dunning has shown no sign of the onset of any medical emergency.

33 Once on the ground, he was straddled by Lawson. Dunning was lying to some extent on his right side with his right arm under his body. Apart from placing his weight on Dunning’s body during this time, Lawson had his arms around Dunning’s neck and was endeavouring to roll him onto his front completely by the using the force he was applying to neck. After something less than 80 seconds, that happened, Dunning’s arm was extracted from underneath him, and Lawson got up from the floor and remained in the immediate vicinity overseeing the further restraint of Dunning in the “shutdown” position. It would be open to the jury to conclude that the video does not demonstrate any resistance by Dunning to what was occurring once he was on the floor, though it is true that there is no sound and so what he said, if anything, cannot be determined.

34 Approximately 50 seconds after Lawson gets up, Sanderson can be seen tapping Dunning on the shoulder to get a response or reaction from him. None was forthcoming. The jury would be entitled to conclude that by this stage, Dunning had lost consciousness. The restraint of Dunning continues for a further two minutes, further attempts at gaining a response are made and then when wrist restraints are about to be placed on him, it is realised that he is suffering a medical emergency. He is then rolled over and looks blue.

35 The jury could conclude that some time between 10:47:10 pm when he hit the ground and 10:49:11 pm when Sanderson began to tap his shoulder, Dunning suffered a cardiac arrest. For half of that time Lawson was in direct contact with Dunning placing his weight on his back at various times and his hands and/or arms around his neck to alter his position. To that can be added the evidence of Dr Woodford and the opinion he offers, in a narrative form, as to the cause of death. The positive findings that he made and the conclusions he reached are medically and circumstantially consistent with what the jury can observe by watching the CCTV footage.

36 As I earlier said, I agree with the submission made by the prosecutor that to suggest that Dunning’s cardiac arrest occurred totally independently of Lawson’s actions is open to be regarded by the jury to be fanciful. It follows that in my opinion there is sufficient evidence to enable the jury to properly conclude that the death of Dunning was caused by Lawson with resorting to impermissible speculation. Whether they will do so is, of course, another matter altogether.

Lawson – Dangerous

37 The fourth element required to be proved by the prosecution is that the act causing the death of Mr Dunning was dangerous. This is an objective test which requires the jury to find that a reasonable person in the position of the accused committing that act would have realised that he was exposing the deceased to an appreciable risk of serious injury. The use of the word “exposing” is significant.[23]

38 Throughout the time that the deceased man Dunning was being restrained from the time he went to the floor onwards, he was being restrained by a number of people. The objective evidence shows that for about a minute from 22:47:06 to 22:48:21 Lawson is physically on the back of the deceased. The deceased is lying on his side with arm under his body as he is held in that position. Slightly less than a minute after he first goes to the ground, Dunning is rolled so that his right arm is extracted from under his body and is then held face down in the shut down position. Six seconds after the right arm is extracted Lawson gets off Dunning.

39 So, what the Crown must prove beyond reasonable doubt is that a reasonable person in the position of the accused Lawson would have realised that he was exposing Dunning to the appreciable risk of serious injury. “Likely to expose” is not sufficient. The conduct must be exposing the deceased to that appreciable risk.

40 The reasonable person in the position of the accused is to be considered to be of the same standing as the accused with any specialised knowledge and experience that the accused had.

41 It was submitted on behalf of the accused that, first, Lawson would not have had any knowledge of the diseased heart of Dunning. It was then submitted that no reasonable jury could find that what Lawson did would have been realised by a reasonable person in Lawson’s position to be dangerous.

42 In my view the following parts of the evidence are relevant and it is open to the jury to come to following conclusions:

• The deceased was demonstrably affected by alcohol – indeed that was the reason why a request had been made for him to leave gaming floor;

• The deceased was obviously obese;

• The deceased was brought to the ground by Lawson heavily;

• Once on the ground the deceased was in a position where the accused Lawson could straddle his back to restrain him and appeared to put his full body weight on him;

• The evidence about training of casino security staff indicated that they were instructed that putting weight on a person's back could cause asphyxiation [24] including, in the evidence of the witness Shane Peat:

And the person would be actually lying on their front; is that right? --- Yes, but somebody would monitor the front of them to make sure they were fine.

When you say somebody would monitor to make sure they're fine, how do you mean? --- On their knees, looking at them, to their face to make sure they're breathing okay.

Why would there be any concern about that? --- Asphyxiation.

What was the training at the casino about the risk of asphyxiation? --- Just to be aware not to put weight or pressure on a person's back.

In terms of the way the training went, what was the particular concern about putting weight on a person's back? --- Putting weight on a person's back could cause asphyxiation.

Is this something that was taught to all of the security people who worked at the casino? --- It was done in my training. I don't do training. It was done in my training. We were made aware of it.

When you trained? --- Yes.

Are you talking 20 years ago, something like that? --- No, continuous training. It's been raised continuously during training.

I'm sorry, are you saying that issue is something that has been raised with you in your training over the years? --- Yes.

Is it something of some importance in the training that's given at Crown Casino to the staff? --- Yes.

• The staff records from Crown casino show that the accused Lawson commenced employment on 13 October 2008 which was his induction day. Between then and 29 June 2011 he apparently participated in more than 30 courses, some of which appear to have included a first aid or medical content;[25]

• That the witness Moussi who was to apply the wrist restraints checked on the deceased as a result of a concern about positional asphyxia. He did that because they were trained at the casino about positional asphyxia when a person is face down on the ground;[26]

• They were made aware during training that the body in a certain position can cause the airway to close which could then restrict breathing which can cause positional asphyxia;[27]

• They were also taught not to have a person on the ground for an extended period of time because of the risk of positional asphyxiation. That was taught to staff at the casino. There was an understanding that that would be caused by a person lying on their stomach and having difficulty in breathing. The result being that the lungs are compressed and they cannot draw enough oxygen in. That information was contained in the literature provided to people who go through the tuition at the casino. They were told the heavier the person the more weight is bearing down onto the lungs.[28]

43 In my opinion these considerations are sufficient to leave the matter to the jury on all of the elements of manslaughter.

44 It was also submitted that the prosecution could not prove that actions of Lawson were deliberate and voluntary as opposed to accidental in the process of moving Dunning onto his front. This submission was not developed in any detail either in the written submissions or oral argument. In my opinion there is sufficient evidence based on what I have already outlined for the jury to consider the matter.

The Case Against Sanderson – Joint Criminal Enterprise

45 The case against Sanderson was opened to the jury on the basis of either a joint criminal enterprise with Lawson or aiding and abetting Lawson.

46 In order for Sanderson to be found guilty of manslaughter on the basis of a joint criminal enterprise the Crown would have to establish that:

• the accused Sanderson and Lawson reached an agreement to pursue a joint criminal enterprise that remained in existence at the time the offence was committed;

• the accused Sanderson participated in that joint enterprise in some way;

• in accordance with the agreement, Lawson performed all of the acts necessary to commit the offence charged, in the circumstances necessary for the commission of that offence; and

• the accused Sanderson had the state of mind required for the commission of the relevant offence at the time of entering into the agreement – presumably an intention to apply unlawful force which was objectively dangerous to Anthony Dunning.

47 As I indicated during submissions, it is my opinion this is a unrealistic and confusing way in which to put the case against Sanderson. In Tangye v R,[29] Hunt CJ at CL said:

So far as a straightforward joint criminal enterprise is concerned, the jury should be directed along these lines:
(1) The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused.
(2) A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime.
(3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime.
(4) If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission.14

48 The question is on what basis could any inference of an agreement be drawn. Mr Tinney had submitted that it would be open for the jury to infer that Lawson and Sanderson came to the necessary agreement as a result of the statement by Sanderson, that “Matt Lawson came to assist and the three of us then took the male to the ground. That is part of our training. It is what we are required to do.”[30] This is not sufficient to sustain an inference of the existence of the necessary agreement which must to have been to commit an unlawful and dangerous act.[31] Even if the jury were satisfied that this demonstrated an agreement to take Dunning to the ground, the only evidence that this agreement was to take Dunning to the ground in a “dangerous” fashion is the fact, if they were so satisfied, that the actions of Lawson were dangerous and Sanderson nevertheless continued to participate.

49 However, simple participation in the offence, without more, should not be used as evidence of a preceding agreement. This would conflate the requirements of: 1) an agreement and; 2) participation in the enterprise, and consequently would dissolve any distinction between aiding and abetting and joint criminal enterprise.

50 In Sever v R,[32] Latham J cited the passage from Tangye above, and continued:

In such a straightforward case of joint criminal enterprise, as the direction makes clear, the existence of the agreement and the participation in that agreement by the accused are matters of inference established by the circumstances in which two or more persons are participating together in the commission of the offence, and the presence of the accused at the time the offence is committed, coupled with intentional assistance to, or encouragement of, the other participant(s).

It is, of course, possible for the Crown to mount a case based on joint criminal enterprise where the accused is not present at the commission of the offence. However, the existence of the agreement or enterprise, and the participation in it by the accused in such a case cannot be inferred from the circumstances in which the offence is committed, because (to state the obvious) there is no evidence of what the accused said and/or did during the commission of the offence. The jury must look to evidence of events, other than those pertaining to the offence itself, for proof beyond reasonable doubt of the existence and scope of the agreement, and the accused’s participation in it. (citations omitted, emphasis added)

51 This passage makes clear that even where the agreement may properly be inferred by the circumstances of the commission of the offence itself, it is something in addition to participation such as a statement or particular action which is the evidence giving rise to that inference.

52 Mr Tinney’s position was, as I understood it, that he would not further seek to put the case on the basis of joint criminal enterprise if I was of the view that I have just expressed.

The Case Against Sanderson – Aiding and abetting

53 However, that is not the end of the question. The case against Sanderson is also put on the basis of aiding and abetting which requires proof that:

• the principal offence was committed;

• the accused knew the essential circumstances that establish the principal offence; and

• the accused intentionally assisted or encouraged the primary offender to commit that offence.

54 On behalf of Sanderson, Mr Tovey QC has submitted that I should not leave the case of Sanderson to the jury because, as I follow it, Sanderson was not concerned in the bringing Dunning to the ground and, in any event, the bringing of Dunning to the ground was not dangerous. Further it is effectively put that he did not intentionally assist or encourage Lawson to do what he did.

55 As Mr Tinney has pointed out, Mr Sanderson, in his statement handed to police,[33] said “Matt Lawson came to assist and the three of us then took the male [Dunning] to the ground.” In that statement the accused goes on to assert that Dunning was aggressive and abusive. He then said, “Matt was on top of him trying to restrain him. Despite his weight, the male was very strong and we were having trouble gaining control of the situation. I was trying to pull his left arm out to his side, to assist in putting him into the shut down position. Matt was on top of him trying to roll him over on to his stomach and to generally restrain him.”

56 Those passages alone serve to indicate that the accused Sanderson was focussed not only on what he was doing but on what Lawson was doing and seem to be significantly at odds with the submission that was being made.

57 For the accused to be found guilty on the basis that he aided and abetted Lawson it must be established that he knew or believed in the essential circumstances that establish the offence of manslaughter at the time of the encouragement or assistance. He is not required to know that the conduct is a criminal offence.[34] It must also be established that he intentionally assisted or encouraged Lawson which effectively means he must be linked in purpose with Lawson and engaged in conduct designed to bring about the commission of the offence.

58 I have already addressed the question of whether the jury may find that the principal offence was committed. In my opinion, on the basis of what may be seen in the CCTV footage and taking into account the accused Sanderson’s specialised knowledge regarding positional asphyxia, it is open to the jury to infer that Sanderson was aware both that the applications of force by himself and Lawson were not justified on the grounds of self-defence and were dangerous in the relevant sense and that he nevertheless continued to assist and/or encourage Lawson in putting Dunning in the shutdown position.

59 If only on the statement made by the accused Sanderson and handed to police, coupled with the CCTV, there is sufficient evidence to leave the case against Sanderson for the jury’s consideration.

The Case Against Vigo

60 The case against Vigo is a discrete case of assault. The Crown put its case against him on the basis that after Mr Dunning had been unlawfully brought to the ground the accused Vigo intervened to apply unlawful force to the person of Mr Dunning by pulling his right arm out from under him and bringing that arm to a position preparatory for handcuffs. The Crown say it would have been apparent to him from the time of his arrival at the scene that Mr Dunning presented no physical threat whatsoever to any member of the security staff and that any restraint of him would be unnecessary and unlawful. When the accused Vigo applied force to Mr Dunning he did so whilst the accused Lawson and Sanderson also applied continuing unlawful force to Mr Dunning, and he continued to do so after the accused Lawson got up from his position

61 Mr Steward argued that there was no basis on which to find that the application of force was unlawful because the application of force was necessary for the protection of staff and patrons. This is an argument to be put before the jury. It does not demonstrate an absence of evidence on which a jury could return a verdict of guilty. I therefore will also leave the case against Vigo for the jury’s consideration.

^[1] [1983] VicRp 101; (1983) 2 VR 410 at p 415.

^[2] [1990] HCA 51; (1990) 171 CLR 207.

^[3] At pp 214-15.

^[4] [1993] SASC 4152; (1993) 70 A Crim R 323 at pp 326-27.

^[5] Royall v The Queen [1991] HCA 27; (1990) 172 CLR 378.

^[6] Transcript, p 860.

^[7] Submissions at para 3.6.

^[8] At page 852-3: “Well there's positive findings and negative findings and all these things need to be interpreted in the context of the case as well, so the same findings in one case may not be relevant, and the same findings in another case may be significant in terms of the circumstances of the case.”

^[9] Submissions at para 2.7.

^[10] [2000] NSWCCA 174.

^[11] At [66]-[68].

^[12] See evidence of Dr Woodford at Transcript, p 910.

^[13] At [65].

^[14] (1981) WAR 286 at 290.

^[15] At [71].

^[16] [1969] SASR 141.

^[17] [1981] WAR 286.

^[18] [1991] HCA 27; (1990) 172 CLR 378 at pp 387, 411-12, 423.

^[19] [2001] VSCA 79; (2001) 3 VR 9 at p 28.

^[20] [1976] VicRp 53; [1976] VR 523 at 527 (per Young CJ, Gillard and Anderson JJ).