R v Calhaem
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PARKER,MR. JUSTICE STUART-SMITH |
| Judgment Date | 22 February 1985 |
| Judgment citation (vLex) | [1985] EWCA Crim J0222-9 |
| Docket Number | No. 1009/C/84 |
| Court | Court of Appeal (Criminal Division) |
| Date | 22 February 1985 |
[1985] EWCA Crim J0222-9
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Parker
Mr. Justice Tudor Evans
and
Sir John Thompson
No. 1009/C/84
MR. G. CARMAN QC and MR. M. BROMPTON appeared as Counsel on behalf of the Appellant.
MR. TITHERIDGE QC and MRS. S. DARWALL SMITH appeared as Counsel on behalf of the Crown.
(As approved by the Judge)
The applicant seeks leave to appeal against her conviction, on 31st January, 1984 after a 12-day trial in the Crown Court at Winchester before Mr. Justice Stuart-Smith and a jury, of the murder of Shirley Ann Rendell. It was not suggested that she had herself committed the murder, but she was indicted for murder pursuant to s. 8 of the Accessories and Abettors Act 1861, as amended by the Criminal Law Act 1967. As so amended the section reads:
"Whosoever shall aid, abet, counsel or procure the commission of any indictable offence, whether the same be an offence at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted and punished as a principal offender."
The prosecution case was that the applicant had counselled or procured the commission of the offence by one Zajac, a private detective, on 23rd February, 1983. On 5th September, 1983 Zajac pleaded guilty to the murder and was duly sentenced therefor. The prosecution case against the applicant was that she had hired Zajac to commit the murder in order to get rid of the victim, who had for some time had an affair with the applicant's solicitor, Mr. Pigot, with whom she was infatuated; that she had made a down-payment to Zajac of some £5,000 at a meeting on 28th January, 1983, and that he had thereafter committed the murder.
The principal witness for the prosecution was Zajac. He testified to the hiring, the receipt of the money, and the murder itself. He said that on the day of the murder he went to Mrs. Rendell's house, having first ensured that her husband was out, taking with him a hammer, a knife, and a shotgun loaded with cartridges from which he had removed the shot, the gun being in a gift-wrapped parcel. He had, he said, no intention of killing Mrs. Rendell, having decided the in the preceding days not to do so. He had on arrival at the house rung the bell, and when Mrs. Rendell came to the door he had asked her to sign for the gift-wrapped parcel. She went to get a pen, and when she returned and found him in the hall she screamed. He had intended to do no more than act out a charade, so that both Mrs. Rendell and the applicant would think that an attempt had been made to murder her. However, when Mrs. Rendell screamed, he said, he had gone berserk, hit her several times with the hammer and killed her. Thereafter, it appears, he had stabbed her in the neck with his knife.
The first point taken by Mr. Carman on the applicant's behalf was that the judge had seriously misdirected the jury on the law as to the ingredients of the offence of counselling. The direction came to be given in the following way. At the close of the prosecution case Mr. Carman made no submission that there was no evidence to go to the jury, but said at once that he would be calling no evidence. This was in the presence of the jury. The judge then heard argument, in the absence of the jury, on the law in relation to two matters. The first was the question of corroboration of Zajac's evidence. Mr. Carman submitted that there was no evidence capable of amounting to corroboration. The judge ruled against him on that submission, and no complaint is made of that ruling. Secondly, there was a question whether there was in law a case to go to the jury. Put in summary form, the submission which was made was that (a) the Crown were bound by Zajac's evidence as to his state of mind before and at the time of the murder, (b) both procuring and counselling require a substantial causal connection between the acts of the secondary offender and the commission of the offence, and (c) on Zajac's evidence there was no causal connection, or at any rate no substantial causal connection.
So far as presently material, at the end of the submission on the second question the judge ruled as follows:
"In my judgment, therefore, the appropriate direction in this case is to this effect. 'To counsel' means to incite, solicit, instruct or authorise. The Crown have to prove that the defendant counselled Zajac in this sense to kill Mrs. Rendell and that in fact Mrs. Rendell was killed by Zajac in circumstances that amounted to murder, and that such killing was within the scope of that instruction or authorisation."
For that reason he rejected the submission. In his summing-up he repeated the effect of that ruling on two occasions, first at pp. 4-E to 5-G of the transcript of the summing-up, and secondly at a later stage in the trial when the jury returned, after having considered their verdict for some time, to ask for further clarification of the meaning of "procuring" and "counselling. This appears at pp. 92 to 93 of the transcript, viz.:
MR. JUSTICE STUART-SMITH"Members of the jury, I think this is what you want. What I propose to do is to remind you of what I originally told you about both counselling and procuring. To counsel moans to incite, solicit, instruct or authorise. Perhaps to use a more common phrase, to 'put somebody up to something'. The Crown have to prove that Miss Calhaem counselled Zajac to kill Mrs. Rendell, that in fact she was killed by Zajac, the killing amounted to murder, and that such killing was within the scope of the authority or instruction given by her. That is counselling. Would you like me to repeat it to you again?
THE FOREMAN OF THE JURY: No, we are happy with that, my Lord.
MR. JUSTICE STUART-SMITHProcuring. To procure means to produce by endeavour. It implies achievement of the result desired or intended by the procurer. The Crown have to prove that the defendant set in train a series of events which she intended would produce the death of Mrs. Rendell, and that Mrs. Rendell was killed as a result, in the sense that her actions were a substantial cause of the death. Would you like me to repeat that?
THE FOREMAN OF THE JURY: No, we are happy with that, my Lord."
There was therefore clearly the possibility that the jury might reject causal connection and thus come to the conclusion that the applicant was not guilty of procuring, but find that Zajac had acted within the scope of his authority and that therefore the applicant was guilty of counselling.
Such a possibility, although it existed, is in our view remote, for two reasons: first, because of the fanciful nature of Zajac's evidence, and, secondly, because, even if it were accepted, it is difficult to see that counselling was not at least a substantial cause of the death. The direction given by the learned judge was, Mr. Carman submits, wrong in law. He should have directed the jury that, in the case of counselling as in the case of procuring, the counselling must be a "substantial cause".
The point is a novel one, on which there is no direct authority. We were referred by Mr. Carman to Hales Pleas of the Crown 1800, Hawkins fleas of the Crown 1824, and Stephen's Digest of the Criminal Law 1877. From those he sought some comfort because, dealing with accessories before the fact generally, words had been used such as "in consequence of", "influence" and "in pursuance of". But we do not find these passages in those authoritative volumes of much, or indeed of any, assistance, because the words were used in relation to a group of words, "counsel, procure or command" and other like expressions, and not specifically in relation to counselling.
Such authority as there is does not, in our view, take the matter much further; although assistance as to the general approach is to be gained from Attorney-General's Reference No. 1 of 1975 (1975) QB 773 at p. 778, where Lord Widgery LCJ said:
"Of course it is the fact that in the great majority of instances where a secondary party is sought to be convicted of an offence there has been a contact between the "principal offender and the secondary party. Aiding and abetting almost inevitably involves a situation in which the secondary party and the main offender are together at some stage discussing the plans which they may be making in respect of the alleged offence:, and are in contact so that each knows what is passing through the mind of the other.
In the same way it seems to us that a person 'who counsels the commission of a crime by another' almost inevitably comes to a moment when he is in contact with that other, when he is discussing the offence with that other and when, to use the words of the statute, he counsels the other to commit the offence.
The fact that so often the relationship between the secondary party and the principal will be such that there is a meeting of minds between them caused the trial judge in the case from which this reference is derived to think that this was really an essential feature of proving or establishing the guilt of the secondary party and, as we understand his judgment, he took the view that in the absence of some sort of meeting of minds, some sort of mental link between the secondary party and the principal, there could be no aiding, abetting or counselling of the offence within the meaning of the section.
So far as aiding, abetting and counselling is concerned we would go a long way with that conclusion. It may very well be, as I said a moment ago, difficult to think of a case of aiding, abetting or counselling when the parties " have not met and have not discussed in some respects the terms of the...
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