Le Broc v The Queen M84/2000 [2001] HCATrans 274 (22 June 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M84 of 2000

B e t w e e n -

STANLEY RICHARD LE BROC

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 22 JUNE 2001, AT 2.13 PM

Copyright in the High Court of Australia

MR M.J. CROUCHER: May it please the Court, I appear on behalf of the applicant. (instructed by Tyler Tipping & Woods)

MR G.G. HICKS, SC: May it please the Court, I appear with my learned friend, MR P.B. KIDD, of behalf of the respondent. (instructed by the Director of Public Prosecutions (Victoria))

KIRBY J: We would be helped if you would address first, Mr Hicks.

MR HICKS: Your Honours, it is submitted that in respect of this matter, special leave should be refused, because this case, it is submitted, is an inappropriate vehicle upon which to test the general laws and nature of the laws concerning aiding and abetting.

KIRBY J: Do you accept that the question that is propounded is an important question, but you say this is not a suitable vehicle to answer it, or do you challenge the importance of the issue?

MR HICKS: We do not challenge the importance of the issue, your Honour, save as to a second and subsidiary reason which we also submit this is not an appropriate vehicle.

The primary submission, your Honours, as to why we submit that this is not an appropriate vehicle is that whilst in fact the Crown put this case as one of three alternatives, namely, being the principal offender per se, acting in concert, and aiding and abetting, and whilst, further, it is against the respondent's argument that in fact the learned trial judge actually sentenced the applicant on the basis that it was an aiding and abetting matter, when one looks at the facts in this case, in our respectful submission, this is very much a clear-cut case of acting in concert and, accordingly, no real issues arise in terms of aiding and abetting which would warrant this case to be an appropriate vehicle to test the waters, so to speak, on aiding and abetting. When one looks in particular, your Honours, at the facts of this case, it is really hard - - -

KIRBY J: Of course, the accused is entitled to have the jury instructed accurately on the legal ingredients of the case and, ordinarily, if there is an inaccuracy in that instruction, it is not a matter that attracts the operation of the proviso, because it goes to the essence of the issue which is the jury is concentrating on.

MR HICKS: That clearly is correct, your Honour. On the other hand, when three alternatives are placed before the jury and there have been correct directions on acting in concert - in fact, there is no complaint made about the directions of acting in concert, at all - and when the facts, in our respectful submission, only bespeak of acting in concert, not aiding and abetting at all, then this is not an appropriate vehicle. The reasons we submit, your Honour, as to why this is a case of acting in concert, is from an analysis of the evidence itself. In particular, your Honours, we make these following points about the evidence.

The matter occurred in the room of the house, where in fact the applicant walked over to Bowman whilst he was sitting on the couch, and then launched the physical attack. This is not some classical case of the aider and abetter standing back, encouraging the principal offender; in fact, as we will outline in a moment to the Court, at the very critical time of when it is suggested that the serious injury was caused, namely, the stomping by Egan on the head of Bowman, the actual applicant was not present. In fact, when I take the Court in a moment to the actual evidence of one of the witnesses, that witness says at that stage there was no encouragement at all being given by the applicant.

This was a clear-cut case, over a reasonably long period of time, of two people acting in concert, with that understanding and were belting this person Bowman over a significant period of time and both joining in. In fact, the Crown put this case, as I said initially, on the highest level possible, that in fact the very actions of the applicant per se caused these injuries. This is not like, say, Stokes and Difford, where it was only ever put on an aiding and abetting case, or even like Georgianni itself is appearing. This was put as three alternatives, of which the highest alternative was put that the actions themselves per se resulted in the injuries.

Then, when one looks at the facts, the applicant commences and launches the attack - so he is not an aider and abettor in that sense; he continues that attack by punching Bowman some 5 to 10 times; Egan then joins in; and so, right at the outset, it can be seen that the applicant was not playing any subsidiary role. Further, after Egan joins in, which the Court of Appeal said, on their assessment of the evidence, goes for some 10 to 15 minutes, they then both together - this is all just in the one room - place him upon the floor, that is, the two of them do it together, then there is another launching of attack upon Bowman by both of them, together in the room.

Then what happens is that the applicant then leaves the room - so you have over a 15 to 20 minute period of a joint attack, not an aiding and abetting situation, of joint participation involved - then at the very critical time, that in fact the applicant leaves the room. Then, if I could take the Court to page 14 of the application book, please.

KIRBY J: I do not think we are going to have the time to analyse the evidence - - -

MR HICKS: It am only going to be one very brief - - -

KIRBY J: - - - can you just tell us what your contention of the sequence was.

MR HICKS: At the very time that that incident is taking place, which is the alleged time that the serious injury is called into question as being caused by Egan, the witness Stivic gives a very clear indication at that time the applicant is out of the room, and lending no assistance whatsoever to Bowman doing that. This whole case is based on an acting in concert, that over a continuous period of time they were doing a joint enterprise, and really the only foundation of guilt in this case can be on acting in concert, or per se in terms of those injuries, because at the very time, the critical time, the injuries are going down, the understanding is still on foot.

Then you have the further facts that when in fact the applicant returns to the room, they both leave the house, subsequently, they then both come back, they put him in a bath together - the victim - together, and then again they assault him again, together. This is not an aiding and abetting case. That is why we submit to this Court that it is an inappropriate vehicle to test the waters about aiding and abetting. It is an acting in concert case. It involves no suggestion of the aider and abetter being the lesser party, encouraging the principal offender, and what is in the mind of someone else, and what might be in the mind of the aider and abettor, and what might be in the mind of the principal offender. There has been no attack on the directions of acting in concert in this case. In our respectful submission, he is clearly liable, criminally liable, on terms of that avenue.

The subsidiary matter as to why we submit that this is not an appropriate case for testing the waters on the law about aiding and abetting is this, that this is a crime of recklessness. At its very highest, therefore, the mental element required is only the lesser of the two mental elements, so to speak, between recklessness and intention, and it was clear from the Court of Appeal's decision that whichever test one was applying in a case of recklessness such as this, that is, a test that is applicable from the Stokes and Difford line of reasoning, that is, that the knowledge of the facts by the aider and abettor, that the aider and abettor's mind must go through what is the principal offender's view of what the principal offender is intending to do, or the Vollmer line, which was the Victorian line, which is the accessory must be aware of the facts going on, the actus reus, but therefore the aider and abetter forms their own view and mind as to what the result might be.

On either view, the Court of Appeal said whichever test is applicable, that in this particular case, there has been no miscarriage of justice, and specifically said that it would be inevitable that considering they were both there, both acting together, both aware of what is going on, that it really does not call into questions any classic scenario of aiding and abetting. And they are our two principal reasons why we submit this is an inappropriate vehicle to test the waters on aiding and abetting.

KIRBY J: Thank you. What do you say to that, Mr Croucher? The issue that you want to argue is important, but the sequence of events that have just been emphasised do seem to suggest that this is a matter where you may not have a big prospect of success of having any refinement of the principle redound to your client's advantage.

MR CROUCHER: In my respectful submission, your Honour, it is to the contrary - - -

KIRBY J: Do you accept the outline of the facts, as were given by the prosecution?

MR CROUCHER: That was one version that was open, but in my respectful submission, the Crown are trying to have their cake and eat it too, because on the one hand, they are saying now, in this Court, that it was a concert case because the man was out of the room when the serious injury was caused, yet at the same time, they say that the other third basis, or the principal basis, namely, that he caused the serious injury himself, was open. Yet you cannot have it both ways.

If the serious injury was caused by the applicant, and the serious injury in this case was the head injury, and the medical evidence was that the head injury could not have been caused by punctures; it was caused by something like kicking - and there was no evidence of this man kicking - or something like his head being hit on a hard surface, or being hit with a blunt object - no evidence of that happening by him. That said, the Crown still went to the jury on the three alternative bases, either that he caused the injuries himself, the serious injury, namely, the head injury, or that he was acting in concert, or that he was aiding and abetting.

In particular, the way in which the prosecutor at trial put it was that, "It does not matter which way you consider it, members of the jury, it is like a tag team. One minute he is doing it, the next minute the other fellow is doing it." But you cannot have it both ways. On the one hand, if he is there causing the serious injury, then he is there possibly aiding and abetting; on the other hand, if he is out of the room, aiding and abetting is still possibly open, because a jury may have come to the view, on one view of the facts, that the applicant initiated the fight by punching the man in the nose a few times, then, on Stivic's evidence - Ms Stivic, who was perhaps the principal witness - and supported by Richard Le Broc, that at that stage the co-accused Egan then came into play and started assaulting the man seriously, and at that point the applicant went out of the room.

Just considering the aiding and abetting scenario for the moment, if the jury considered the directions, "Well, if he intentionally encouraged or assisted at that point, and intentionally encouraged or assisted such that even in his absence - just in the next room, but he is still in the house - his encouragement or assistance was still effective", then squarely in issue is the mens rea with which he did that encouragement or assistance. If it was merely foresight of probability, which is the test of recklessness in this State, and which Vollmer supports, and which the Court of Appeal upheld, that is one thing. But if it is the Georgianni view, that he must have known that serious injury would be caused, or believed, then the jury might have had a doubt about it, because his perception or understanding of what was going to happen might not have extended thus far.

So that is one point. If I can come back to the primary point, though, that my learned friends say that it is not really anything but a case of acting in concert anyway, I say quite the contrary. Acting in concert is usually the case where there is some sort of agreement beforehand - some sort of express agreement, like in Osland's Case: is a classic example where there was an agreement to strike the man before he was killed.

Of course, the law also says that acting in concert can spring up from a set of circumstances; no doubt about that. So that it was open, arguably, for acting in concert to apply in these particular circumstances on one view of the facts, or on a couple of views of the facts, perhaps. But in my respectful submission, contrary to what my learned friends say, it was more classically a case of aiding and abetting than one of acting in concert, because there was no pre-concert.

It was, on any view of the facts, the applicant who initiated some punching and then there is probably half a dozen different versions open as to what actually happened thereafter. Your Honours will see that in the written submissions, the summaries of argument filed by both parties, there is a dispute anyway as to the factual circumstances. You will see in the respondent's summary of argument that they say that the applicant was there longer, where more blows were struck, before he left the room, on the evidence. That smacks, then, of aiding and abetting, in my respectful submission.

KIRBY J: Yes, but it has a colour of a longer sequence of coordinated, integrated action, than I had originally appreciated. That does tend to make more difficult the nuance that you are seeking to say was the missing ingredient that might have secured you an acquittal.

MR CROUCHER: Your Honour, I challenge that, because my learned friend said "10 or 15 minutes" or something like that, before he left the room. That was not the evidence, in my respectful submission. My learned friend says that is what the Court of Appeal said. If that is right, then they are wrong, in my respectful submission, because as I sought to point out in the summary of argument, at least on one view of the evidence of Stivic was: the applicant gets up, he starts assaulting the man, then Mr Egan joins in, then the applicant exits the room, and then it is the serious blow - the stomping and the like that is caused while the applicant is absent from the room, and that is supported by Richard Le Broc. Aiding and abetting are still open in those circumstances and, in my respectful submission, it is more apt in those circumstances than acting in concert.

My learned friend rightly speaks of evidence subsequent to the principal incident of further assaults being meted out - although the evidence was very weak and tenuous and unreliable about that, but nevertheless, it was clear that none of those subsequent assaults, if we are speaking of a longer-term incident, had anything to do with the serious injury that was caused to his head. The evidence in the end was such that the only thing that could have caused the serious injury, on the evidence, was the stomping or his hitting of the head on the concrete, which, on most views of the evidence, occurred while the applicant was absent.

KIRBY J: And your client was involved in the stomping?

MR CROUCHER: No, not at all. Ms Stivic - - -

CALLINAN J: Could I draw your attention to page 189?

MR CROUCHER: Yes, your Honour.

CALLINAN J: Beginning at about line 16 or 17. I think in line 19 there is a mistake, is there not? "There they found the applicant still lying on the floor". That should be the victim, should it not?

MR CROUCHER: Yes, obviously.

CALLINAN J: After they found him lying on the floor, your client joined with Egan, took him into the bathroom, and then punched him in there again.

MR CROUCHER: Yes, but none of that could have been the serious - - -

CALLINAN J: Well, it would not have done any good to the earlier head injury, would it?

MR CROUCHER: With respect, I agree, your Honour, although just on that point, Ms Stivic was cross-examined about that, and she also speaks of scalding having occurred in the bathroom. The ambulance officers gave evidence there was no evidence of scalding - - -

CALLINAN J: I am sorry?

MR CROUCHER: The ambulance officers gave evidence there was no evidence of scalding, no marks or anything of that nature. But the point I seek to make about that, your Honour, is what I sought to make before, is that this trial was fought on the basis that the head injury was the serious injury. That is the way it proceeded. None of these things that your Honour just pointed to then amounted to serious injury - - -

CALLINAN J: Take this line. The Court of Appeal said: "Egan hit Mr Bowman to the left side of his head with his left hand." So he is striking him on the head which has already been badly injured, is that right?

MR CROUCHER: Where is your Honour reading from?

KIRBY J: It is 189, line 24.

MR CROUCHER: Yes.

CALLINAN J: And while Egan was doing that, something which would be likely or could well aggravate the injury, the applicant was holding his legs. And then just to help him on his way, he punched him three or four times as well.

MR CROUCHER: I return to my point, your Honours, that the trial was fought on the basis that the head injury was the serious injury. The medical evidence was that the head injury could not have been caused by punching. There is no evidence of the applicant directly - - -

CALLINAN J: It certainly was not improved by punching, was it?

MR CROUCHER: With respect, your Honour, that is not to the point. It would not matter if he hit him a hundred times afterwards - - -

KIRBY J: But the point that you want to argue that is of interest from a legal point of view is one that would be raised where you had a clear delineation between the conduct of one accused and of another, and you could therefore have posed to a jury an issue as to whether the accused had sufficient knowledge of the intention of the other assailant to go as far as he did. Now, that does not seem to be the facts of this case.

MR CROUCHER: In my respectful submission, it is.

KIRBY J: I realise you say that, but it does not seem to be the colour of the case. As Justice Callinan has drawn your attention to, it is a continuous cavalcade of violence in which your client was involved. Now, you have to really get to the point that you say: there is this nuance of fact that the actual injury was caused by a blunt instrument or something of that kind and that, therefore, there is this small distinction, and that the jury should have been given that direction, and had they only be given that direction, it might have led to acquittal or a different outcome.

MR CROUCHER: Yes. In my submission, your Honour, could I - - -

KIRBY J: The facts are not really very - - -

MR CROUCHER: Could I take your Honours to page 245 of the application book, where the respondent sets out in contradistinction to the facts which I had said were important in my summary of argument. This is at paragraph 4, where the respondent says this:

The Respondent does not take issue with the Applicant's statement of factual background except in respect of paragraph 2.4(b) of the Applicant's submissions, where the facts can be summarised as follows: After cross examination and re-examination, Nicole Stivic's position was to the effect that (i) she did not see the applicant kick Bowman; (ii) The applicant left the room after the following had happened - The applicant first punched Bowman, then Egan punched Bowman, then both the applicant and Egan put Bowman on the ground -

just stopping there, this sounds like aiding and abetting at this stage -

where he was punched by the applicant and kicked by Egan.

The punching by the applicant - if, your Honours, I could take you to the evidence - that was punching to the face, at that stage. The kicking by Egan was to ribs at that stage, or the body area, not to the head. Then, the next line:

Egan continued to kick Bowman when the applicant was out of the room.

The evidence was then, that kicking, was the stomping on the head and also, from Richard Le Broc, that he at one stage hit his head hard on a concrete fireplace. Again, in the absence of the applicant. So that, in my respectful submission, out of the respondent's own submissions, points to the facts which would open up this very question. That is one of the versions that was open. Overlying all of this, of course, is - - -

KIRBY J: How do we know that the injury has not been done by that time?

MR CROUCHER: There was evidence that the complainant - - -

KIRBY J: So the medical evidence differentiated, did it, between the punches and the bruising, and the hard - - -

MR CROUCHER: There was evidence that once he had suffered this injury, he would have been either unconscious or so nearly unconscious that it would have been obvious. And that was indeed the evidence, that after this point, that he was in an unconscious state, or near-unconscious state. As I say, the evidence is that this stomping is going on in the absence of the applicant. The forensic evidence supported this, as well. There were blood spatters all over Egan's legs, which were consistent with his stomping and doing things like that, nothing like that on the applicant's clothes. Of course, there was the version that he gave in his own interview, which was consistent with what I am putting.

KIRBY J: Yes, well I think we have the problem. Is there anything else?

MR CROUCHER: Yes, the overlying factual context in the question of intoxication, as well. There was evidence that this man had drunk something like 12 to 14 cans of beer; that he had also had to drink some wine from a cask - - -

KIRBY J: Yes, but you did not seek any direction, did you?

MR CROUCHER: No, that is right.

KIRBY J: That would not of itself warrant a grant of special leave.

MR CROUCHER: I understand that, but it adds spice, if I can put it that way, to this particular point, because - - -

KIRBY J: Spice is not the way I would describe it.

MR CROUCHER: As your Honour pleases. Adds weight to this point for this reason: in the end, we are considering a state of mind of recklessness, which is all about foresight of consequences, whether it be recklessness of foresight of probability or whether it be the higher Georgianni test, in the sense of knowledge of something is going to happen. Drunkenness or intoxication is obviously particularly apposite to that sort of question of mens rea, and I have referred your Honours to Viro's Case, where there was lesser evidence of intoxication, in the form of heroin use; in Stokes and Difford, where there was lesser evidence of intoxication; Khouzame and Saliba, where there was lesser evidence of intoxication; where their Honours, in each of those cases, held that despite the absence of a request for a direction, the trial judge was bound to direct on the issues, even in Stokes and Difford, where there was an express disavowal by counsel of that very issue, and that was, of course, the judgment of Mr Justice Hunt.

Could I just raise one further point, just going back to the question of complicity? Your Honours will see that there are now at least two different views of the world. There is the Victorian view enunciated in this case of Vollmer - - -

KIRBY J: We know the importance of the point. The question is whether this case yields the point suitable for this Court.

MR CROUCHER: As your Honour pleases.

KIRBY J: I came into the Court thinking it did, but I must say I have been shaken in that view.

MR CROUCHER: As your Honour pleases. Unless there is anything about the particular facts that I can assist your Honours with - the difficulty with the facts was that there were so many different versions in the end left by the various witnesses. But at least amongst some of the versions, in my respectful submission, and probably the most likely version was one that, in my respectful submission, squarely raises this question of aiding and abetting and, in particular, the foresight of harm, whether it be probability or something higher, which Georgianni seems to require, was clearly an issue.

If I can go back to the primary point that I made, how can the Crown on the one hand say that there was enough evidence for the applicant to be convicted as a principal offender himself of having caused the serious injury, yet in the same breath say it was not really an aiding and abetting case because he was not there when the serious injury was caused? They are totally inconsistent propositions. You cannot have it both ways, in my respectful submission. The point is crying out to be decided, and in my respectful submission, it should be.

KIRBY J: Yes, thank you.

MR CROUCHER: As the Court pleases.

KIRBY J: Do you say anything in reply, Mr Hicks?

MR HICKS: No, your Honour, only that there is no clear delineation between, theoretically, the aider and abetter and the principal offender in this case. They are both principal offenders over a continuous period of time, and it is completely artificial that in a small room, where they are both kicking - one is kicking, one is punching, at the same time, both in each other's presence, then there is a further kicking when one leaves, then they come back and assault him together - to put this as an aiding and abetting case. It is a joint participation over a lengthy period of time.

KIRBY J: Yes, thank you.

Although some of the issues which the applicant sought to raise in support of the grant of special leave are undoubtedly important - and, in particular, whether, where recklessly causing injury is charged, the holding of this Court in Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473 requires proof that an aider or abetter knows, or believes, that the principal's action would cause serious injury - we are not convinced that the evidence in the case presents a fruitful foundation for the elucidation of such issues, were special leave to be granted. Nor are we convinced that a miscarriage of justice has been shown.

So far as the ground dealing with the question of intoxication is concerned, this matter was not reserved at the trial. It would not, by itself, warrant the grant of special leave. Accordingly, special leave is refused.

AT 2.40 PM THE MATTER WAS CONCLUDED