Adams v The Queen B14/1998 [1999] HCATrans 84 (16 April 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B14 of 1998

B e t w e e n -

GEORGE ADAMS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 16 APRIL 1999, AT 1.46 PM

Copyright in the High Court of Australia

MR G.D. WENDLER: If the Court pleases, I appear for the applicant. (instructed by John D. Weller & Associates)

MR M.J. BYRNE, QC: If the Court pleases, I appear for the respondent, with my learned friend, MR A.W. MOYNIHAN. (instructed by the Director of Public Prosecutions (Queensland))

KIRBY J: Yes, Mr Wendler.

MR WENDLER: Your Honours, this application raises matters of importance to the law of criminal complicity, in particular, the criminal law relating to the procurement of a criminal offence.

As your Honours know, there exists in all the Australian States and Territories legislation which has the same legal effect and legal consequence as that of section 7 of the Queensland Criminal Code. That is, when a criminal offence has been committed, a person is deemed by the law to have taken part in the commission of that offence if that person is proved to have procured the offence. Of course, that person is also deemed to be just as criminally responsible as the perpetrator.

Your Honours, this Court in 1985 in Georgianni v The Queen, which is reproduced in the booklet to the applicant's authorities and, I think, in particular at page 16 of that booklet, there is a fundamental principle of law applicable in crimes of criminal complicity which I propose to read in a moment. In Georgianni v The Queen this Court held that a person who procured another to drive a defective and dangerous motor vehicle would be criminally liable for the offence of culpable driving causing death, even if that person was not the driver, so long as it could be demonstrated or proved that the procurer knew all the essential facts which made what was done a crime and he intentionally procured the acts of the principal offender.

That principal of law is identified in Georgianni v The Queen. I propose to read it. At page 15 in the authorities book at approximately line 43 or thereabouts, the paragraph that begins in the judgment of the learned Chief Justice, Justice Gibbs:

My view of the law may be summed up very shortly. No one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender. Wilful blindness, in the sense that I have described, is treated as equivalent to knowledge but neither negligence nor recklessness is sufficient.

In that case, of course, special leave was granted and the appeal was allowed and I think there was an order for a retrial because of the inadequacy of the summing up.

HAYNE J: At the trial of Mr Adams, was one of the questions that was agitated whether Mr Adams had procured, in the sense of successfully persuaded the principal offenders to assault the victim?

MR WENDLER: That was an issue and certainly an issue - - -

HAYNE J: And was that the central issue at the trial?

MR WENDLER: It was. Yes, it was the central issue.

KIRBY J: It was not suggested that the assailants had any other private cause or grievance with Mr Von Nida?

MR WENDLER: No. It is suggested in the applicant's case that they went on an escapade on their, well outside and well beyond any invitation from the applicant to assist him in the situation that he was in.

HAYNE J: But that is the point, is it not, Mr Wendler, that as conducted at trial, it was either he successfully persuaded them to assault or he did not, or there is doubt about whether he did?

MR WENDLER: That is how the trial judge instructed the jury. The trial judge, in effect, said, "Look, if you're convinced beyond a reasonable doubt he procured these men to do what they did, then you'll have to find him guilty. If not, if there is a doubt about that, he should be acquitted." Now, that is really what his Honour said to the jury.

HAYNE J: What is the difficulty, given the way the trial was conducted, in instructing the jury in that way?

MR WENDLER: The difficulty is identified in the judgment of the learned President, Justice Fitzgerald, at page 39 of the application book at line 25. After discussing the law in this area and also discussing the fact that the trial judge gave the jury the direction in the way that I have just described, the learned President said this:

The jury in the present case was given no explanation by the trial judge concerning what it should consider or how it should decide whether the appellant had procured the principal offenders' offences. More particularly, it was given no indication that it was required to determine what the appellant knew and intended. No reference was made to the possibility that the appellant intended that Von Nida only be threatened, not struck, or that he not be struck with weapons, to the possibility that the appellant did not intend that bodily harm be caused to Von Nida, or to the possibility that he did not intend that Von Nida be unlawfully detained or that his assailants be armed. In my opinion, the trial judge's directions to the jury were inadequate. Especially because the jury would likely have been easily persuaded that the appellant procured some offences by Von Nida's assailants, the absence of material detail from the summing-up created a real risk that the appellant was convicted of more serious offences than he sought to procure.

HAYNE J: But the accused's case at trial was, "I procured nothing", was it not?

MR WENDLER: Quite, but, nevertheless, there was an obligation upon the trial judge to direct the jury, certainly in accordance with the principles of law in Georgianni, applied to the case at hand. As a result of this inadequacy there has been, in my respectful submission, a demonstrable miscarriage of justice because, of course, the appellant may well have been convicted, as the learned President pointed out in his judgment, of offences more serious than he sought he to procure.

The applicant was charged, on count 2, with an offence which was expressed "in its aggravated form". This throws up the special leave component of this application. In Georgianni there was no treatment of how the law of procurement - how the mental element in the law of procurement affects offences which can be expressed "in their aggravated form". In other words, if - and the law must be that a person cannot be found guilty of a procuring offence unless it is demonstrated that he knew the essential facts of the offence and intended that those facts be brought about.

Now, if you apply that, how does that principle affect situations where there is an offence expressed "in its aggravated form". Now, in this country all the Criminal Law Acts, all the legislation concerning the criminal law has offences which can be expressed "in their aggravated form". In other words, in this case the applicant could have been acquitted outright. He could have been found guilty only of assault. He could have been found guilty of assault occasioning actual bodily harm, or he could have been found guilty of assault occasioning actual bodily harm without any circumstance of aggravation.

So, the treatment in Georgianni does not go that extra step and ask the question whether the mental element in the offence of procurement operates in a different way when an offence has circumstances of aggravation or is it enough that a person simply can be proved beyond reasonable doubt to have procured the central or the main offence, in other words, is it enough that the jury find that they are convinced beyond reasonable doubt that he procured, in this case, the offence of assault occasioning actual bodily harm and not go down to the next steps concerning the aggravating features of the offence and apply the test that once having procured an assault occasioning actual bodily harm, all probable consequences of that procurement would then flow to the person who so procured the offence.

In that sense, this application is an appropriate vehicle for a further investigation and development of the law of procurement. It takes the step, the reasoning process and treatment of the High Court in Georgianni, on to a further analysis because it invites an examination of offences which can be expressed "in their aggravated form".

HAYNE J: Does it then comes to this, Mr Wendler; see if I can capture the point this way. In fact, Mr Adams acknowledged that he knew the assailants but had his defence at trial been, "I have never met them, seen them and their appearance in the room was an absolute shock and surprise to me", and if the jury was confronted with issue joined in that fashion, you say it would still have been incumbent on the trial judge to give direction about did he know not only there was to be an assault which he actively encouraged but an assault with weapons - with firearm?

MR WENDLER: Yes, because we are dealing with criminal responsibility and it is always incumbent, in my respectful submission, upon a trial judge adequately explaining the criminal responsibility or how a jury is to handle the criminal responsibility of any accused. But I need to correct one thing your Honour Justice Hayne just said to me. He was only acquainted with one of the men that arrived. He was not acquainted with any of the others. His case was he was absolutely surprised that these people turned up and never met them before and did not know anything about them, and that is where this problem arises. His case was these men went on some expedition or adventure of their own, totally outside his control.

HAYNE J: Gratuitously beating this man very against whom they had no - - -

MR WENDLER: And at the same time holding the applicant hostage, keeping him away from this incident so he could not interfere and stop it. He had a real interest in stopping it. He was absolutely and so shocked himself when this matter developed in the way that it did. So it was absolutely incumbent, in my respectful submission, that where the offence was expressed as "in its aggravated form", the trial judge give adequate instructions to the jury so as they could handle the level of his criminal responsibility effectively and appropriately.

Now, in my respectful submission, the instruction did not in any way at all take into account the decision of this Court in Georgianni. His Honour was obliged to direct the jury in accordance with the principles identified in Georgianni. His Honour did not do that. This application does provide a vehicle for further examination and analysis of a special area of the criminal law, the area of criminal complicity as it applies to offences which can be expressed "in their aggravated form".

It is my respectful submission that the treatment by the learned President in the Court of Appeal is correct. His Honour Justice Fitzgerald's analysis is compelling, and in my respectful submission, when his Honour says that:

the summing-up created a real risk that the appellant was convicted of more serious offences that he sought to procure -

is a point which, in the circumstances of the case, cannot be ignored.

So, that is really the nature of the application. It does provide a vehicle for further examination of this area of criminal complicity. The summing up was inadequate to the extent that it has perpetrated a miscarriage of justice in all the circumstances and, in my respectful submission, it is an appropriate vehicle for a grant of special leave to appeal.

KIRBY J: Yes, thank you, Mr Wendler. Mr Byrne, the Court does not need your assistance on this application.

MR BYRNE: Thank you, your Honour.

KIRBY J: This application turns on the way in which the trial of the applicant was conducted. The applicant contended that the Crown had failed to prove beyond reasonable doubt that he had "procured", in the sense of successfully persuaded, the principal offenders to commit any assault on the victim, Mr Von Nida. No separate case was advanced at trial that he may have persuaded them to commit some lesser assault.

We are not persuaded that any appeal would have sufficient prospects of success to warrant the grant of special leave. Accordingly, special leave is refused.

AT 2.01 PM THE MATTER WAS CONCLUDED