Finnan v The Queen [2005] HCATrans 972 (18 November 2005)

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Finnan v The Queen [2005] HCATrans 972 (18 November 2005)

Last Updated: 25 November 2005

[2005] HCATrans 972

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M68 of 2005

B e t w e e n -

ASHLEY MARK FINNAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 18 NOVEMBER 2005, AT 11.47 AM

Copyright in the High Court of Australia

MR P.G. PRIEST, QC: If the Court pleases, I appear with my learned friend, MR T.E. WRAIGHT, for the applicant. (instructed by Amad & Amad)

MR J.D. McARDLE, QC: If the Court pleases, I appear with my learned friend, MS S.B. McNICOL, for the respondent. (instructed by Solicitor for Public Prosecutions (Victoria))

GUMMOW J: Yes, Mr Priest.

MR PRIEST: Your Honour, this case raises similar issues to the case of Le Broc which seems to have tantalised your Honour Justice Kirby when it came up for special leave. Your Honour might recall that you thought that that case - the evidence, although the issues were important, did not provide a fruitful foundation for the elucidation of such issues. Since then of course this Court gave judgment in Gillard and your Honour Justice Kirby seems to have, no disrespect meant, lamented the state of the law so far as complicity was concerned. Your Honour Justice Hayne was quite robust in response. We would say, your Honours, that this case provides a perfect vehicle for consideration of the issues of complicity and, in particular, the particular intent or mental element that needs to be proven when dealing with secondary participants.

HAYNE J: That requires consideration of what Justice Osborn said at the head of page 96 in the first five or six lines of that page.

MR PRIEST: Yes, his Honour, with respect, was quite wrong in what he said in that passage and that is demonstrable if one goes to page 78 of the application book. One looks at the question that was asked and the way in which it was understood by counsel for each of the parties. The question itself was set out at about line 7, the quote of:

“If the principal is found guilty of intentionally causing serious injury, can the other defendant be found guilty of the lesser charge of reckless, and must the person aiding and abetting, or in concert be equally guilty of the higher charge.”

Now, the prosecutor understood that question to raise the following and you will see the passage commences at about line 17, but in particular about line 20:

but when he saw Dunne performing the physical acts, which did in fact cause that serious injury, he, that is Finnan, foresaw that Dunne was reckless as to whether he would cause serious injury or not. So there is – as I think I’ve said in my closing address to the jury, there is a theoretical possibility . . .

And it all goes to the jury’s assessment of Finnan’s perception of what Dunne was about, effectively . . .

So if they were satisfied beyond reasonable doubt that Finnan perceived that he was doing acts and was thereby - Dunne was thereby being reckless, and he had that degree of perception and assisted in those circumstances then he could be guilty of reckless, yes.

Now, the last line on that page, counsel for Mr Finnan says:

Your Honour it really goes to Finnan’s state of mind, that is the question, in my submission, and that comes back to the quite difficult issues raised in the decision of Le Broc.

The pages are not included in the application book but there had been an earlier discussion of Le Broc and Vollmer and the way in which it should inform the directions to be given the jury in this case. Further on down that page at about lines 26 or 27 counsel for Mr Finnan says that:

it’s difficult to answer it without adverting to, at the very least, the sort of states of mind required . . .

HIS HONOUR: I think the – I think Mr Trapnell is right in saying it’s the jury’s perception of what Mr Finnan thought at the time it was going on . . .

And if they came to the view that he thought that the principal was acting recklessly as distinct from intentionally, then they’re entitled o find on the lesser charge in relation to Finnan, if that’s what they think.

So counsel and the judge, who were imbued with the atmosphere of the trial and were well acquainted with the evidence, thought that what the jury was asking about - and what they needed to be directed about -was indeed Mr Finnan’s state of mind. What the judge then told the jury is to be found at page 80 of the application book. The last couple of lines on that page:

Yes well the answer to your question is yes. If you found that Mr Finnan thought that Dunne was acting recklessly rather than intentionally and then decided either to act in concert with him or to aid and abet him then you can find him guilty of the lesser charge of recklessly causing serious injury despite the fact that if you may have already found that Dunne intentionally caused serious injury. So that is an option open to you.

But what that then - - -

HAYNE J: But then trial counsel for your client then makes no exception to that.

MR PRIEST: But, your Honour, that is against the background that these issues have already been thrashed out at an earlier point in the trial and in a situation where the principles to be applied are less than certain. Even in Le Broc in a passage I can take the Court to if required, the Court of Appeal itself made the observation that these issues are far from simple. Now, if the Court of Appeal thought that and many textbook writers, other judges and other - - -

HAYNE J: Well, let it be assumed that Le Broc raises a matter that may be controversial. Let that be assumed. I understood you to take us through this passage at trial starting from a premise that counsel at trial really had a feel for what the jury were asking about.

MR PRIEST: Yes.

HAYNE J: And then the judge makes the answer and counsel for the accused says no exception to it. Why do we then get into the matters of controversy which underpin it all?

MR PRIEST: That is because the failure to take exceptions has to be understood against the sounding board of the way in which Le Broc was understood at the time when this trial took place. Counsel would have understood that Le Broc dictated a particular direction, the same as that which was given here would have been appropriate, but as a matter of principal, we submit that that is wrong.

KIRBY J: Whoever wrote the special leave application got quite carried away saying the Court of Appeal “betrays a lamentable failure to appreciate”, was “hopelessly imprecise”. We do not normally see things expressed in quite such terms - - -

MR PRIEST: Well, your Honour - - -

KIRBY J: But leave that aside, I am not raising that point, what is the principle that you say is the error that is involved in this case?

MR PRIEST: It is this. When one is dealing with the criminal liability of a secondary party, whether it be a person who is acting in concert with or aiding and abetting the principal offender, his or her criminal liability should be fixed according to the intention which he or she holds, not according to the intention that he or she perceives that the principal offender holds and this direction, with respect, was offensive to that idea. It did not convey to the jury that Mr Finnan’s criminal liability on count 5 or the alternative count 6 fell to be determined according to his intention as opposed to what he thought Dunne’s intention was.

KIRBY J: You say this is just fundamental to the general principle that the criminal law involves both the actus reus and the mens rea and that is the mens rea of the accused?

MR PRIEST: Yes. You see, there is, with respect, a degree of confusion as to what these various concepts entail so that when one talks about common purpose you will often hear common purpose referred to in the same breath as joint criminal enterprise and concert and, on one level, common purpose can indeed embrace or be synonymous with each of those concepts but it can also embrace a sort of Johns or McAuliffe-type common purpose which is an extended form of common purpose where a person’s culpability as a secondary offender depends on the scope of the common design and on that person’s foresight of the possible incidents that go with the carrying out of the common design.

GUMMOW J: We have to look at the question though, do we not?

MR PRIEST: Yes, your Honour.

GUMMOW J: The jury’s question set out at page - - -

MR PRIEST: Yes.

GUMMOW J: Then we have to look at what the Court of Appeal said about it at page 94, paragraph 24. What is the error in the Court of Appeal’s treatment of it?

MR PRIEST: The Court of Appeal - what they have said here seems to be prefaced upon the assumption that it is a correct direction of law to tell a jury, as in effect the judge did in this case, that Mr Finnan’s guilt or otherwise fell to be determined according to whether Finnan thought:

that D was acting recklessly rather [than] intentionally.

GUMMOW J: What then do you say about paragraph 28 in the Court of Appeal, page 95, which is the Le Broc point?

MR PRIEST: Yes, well, your Honour, that is a question of construction of the jury’s question.

GUMMOW J: Exactly.

MR PRIEST: We submit, with respect, that the jury’s question does raise exquisitely this very point.

HAYNE J: Justice Osborn said at 96 in the first line:

The jury’s question was premised upon the hypothesis -

there identified. Is his Honour not right in saying that, when the jury’s question began “If the principal is found guilty of intentionally causing injury, et cetera”?

MR PRIEST: Yes, but as against the background of the jury raising both possible forms of complicity, both concert and aiding and abetting and it is arguable at the very least that each of those, concert being joint liability and aiding and abetting being derivative, that his Honour would have been required in the circumstances to have drawn a distinction between those two and have given a direction to the jury specific to each of those particular forms of complicity. His Honour did not do that. He bundled both forms of complicity up as a job lot and - - -

KIRBY J: Were there elements in the evidence in this case that makes the point that you are urging on us important for your client? Just explain how it is determinative.

MR PRIEST: Yes. Very briefly, there is a party at a hotel. Some young men come into the hotel aggressive. They take – one of them, Mr Dunne, apparently goes outside with Mr Sharni Hanley. They go down a laneway apparently to fight. Mr Sharni Hanley hears his father call out that he has been stabbed. He then comes back out of the laneway back up towards the hotel. There is some evidence that a person, identified by one witness only as being Mr Finnan, said at the time they were in the laneway, those two in the laneway said “were slicing him up” or words to that effect. There is then quite a melee out the front of the hotel and at some point Sharni Hanley so it seems tackles Mr Finnan. They go to the ground and while they are wrestling on the ground, Dunne comes running up and is described by another witness, Kristian Hanley, to be making a punching motion towards the back of Mr Sharni Hanley, who is then in a wrestle with Mr Finnan on the ground.

So, your Honour, yes, it does raise very neatly these questions of concert and aiding and abetting and the appropriate intention needing to be
proved by the Crown in each case. It is a very different case to Le Broc where there was a reasonable construction of the evidence that Mr Le Broc himself might have been a principal offender rather than the other gentlemen, but he was said to have been acting in concert with or aiding or abetting in that case. So, your Honour, yes, we say that this is a perfect vehicle for which to agitate the issues that we wish to. If the Court pleases.

GUMMOW J: Yes, Mr McArdle.

MR McARDLE: Your Honours, one ground of appeal that brought this case to the Court of Appeal is to be found in the application book and is concerned with the redirection to the jury following the question which your Honours have been taken to, and the ground of appeal was in these terms:

The learned judge erred in his direction to the jury (following a question from the jury) in relation to recklessness and how it should be applied to their consideration of the alternative counts, counts 5 and 6.”

So the question was directed, or at least the grounds of appeal, the argument, was directed towards his Honour’s answer to the question put by the jury. The jury had been earlier told that Dunne - who I think is referred to as “D” in the course of the Court of Appeal’s judgment, if Dunne was acquitted of the counts in question they were alternatives of either intentionally causing serious injury or recklessly - and recklessly causing serious injury is a less serious offence -if Dunne was acquitted of those counts then it would follow that the applicant, or at least they were directed, the applicant would be acquitted so it meant they were to consider the case against Dunne first and one can infer that from the question that was posed.

The case put against the applicant was that of either acting in concert or aiding and abetting and so far as aiding and abetting is concerned, the secondary or derivative liability, then that would require a conviction in relation to the principal offender. So far as acting in concert is concerned, the acquittal of one offender would not necessarily lead to the acquittal of another offender. From that point of view the direction given by his Honour was a generous direction but may well have been modelled upon the facts of the case.

The case put against the applicant was that in the course of the wrestle, as well as expressing some interest in slicing people earlier in the lane near the hotel, that he presented or held the victim’s back so that the applicant was afforded an opportunity to stab him with some sort of bladed instrument. The end effect was that he had two stab wounds in his left upper back, one leading to a pneumothorax, no question that it was a serious injury.

The question was if the principal was found guilty of causing serious injury can the other defendant be found guilty of a lesser charge, or must he be guilty of the higher charge? His Honour answered that upon one view with one word and the answer was yes, it would be possible for there to be a separate verdict, that is a verdict to the less serious offence, the offence of recklessly causing serious injury - that is to say they were not to be linked, if you like. If the principal offender was guilty of the offence it did not necessarily mean that the aider and abetter or the actor in concert, in this case the applicant, would himself be brought down, if you like, by the conviction of the principal offender.

Now, that did not provoke any exception or any complaint as far as the applicant’s counsel at trial was concerned. One can understand that, because notwithstanding the fact that, I think, half an hour later his client was convicted of intentionally causing serious injury, you could understand that you thought that that direction was to his client’s advantage and, if you like, a good omen as to what was going on as far as the jury were concerned.

The Court of Appeal, it is submitted, correctly ruled that there was no difficulty in relation to this question or to the answer given to the question. So far as acting in concert is concerned, so far as aiding and abetting is concerned, the intention that has to be proved at least is that of the secondary or joint offender, not the principal offender, but in turn that must involve some assessment by that person of the intention of the primary offender and that is made plain, it is submitted, by his Honour’s response to the question to the jury. It is submitted that it is nothing more or less than that.

The intention as far as the secondary offender is concerned must to an extent involve some assessment of what the primary offender is doing and what his intention is. The response to the jury’s question was nothing more or less than that. This case, as far as acting in concert or aiding and abetting is concerned, is not, it is submitted, the complicated case, for example, of Giorgianni, which was the case involving the truck that had brake failure where the aider and abetter was the owner of the truck, or a case like Gillard where you have separate actions, for example, where there is a killing, but the person you are concerned with is the man waiting outside in the car.

I mean if one is looking for an example of acting in concert - and the facts are probably a matter of controversy between our learned friends and ourselves - you might say that he who wrestles or grabs with the victim and
presents his back as a target of opportunity for the person who is the wielder of the knife, that is a classic example of either acting in concert, assuming that there is a prior agreement and the action is within the scope of the agreement and while it is on foot, or an aiding and abetting. Your Honours, subject to questions from the Bench those are the submissions we wish to make.

GUMMOW J: Yes, Mr Priest.

MR PRIEST: “Presenting his back” is an advocate’s flourish. There was nothing in the evidence and nothing in the arguments which suggested that Mr Finnan was doing that. The judge outlined the evidence to the jury at page 59 of the application book. Kristian says - that is Kristian Hanley:

“I saw the person with the Adidas top”, who has been identified as Finnan. “He’d come around from somewhere and he had hold of Sharni fairly close to me, he was sort of here somewhere, he was asked was he holding Sharni, well he sort of just grabbed hold of him like, you know, Sharni had gone over the top of him and he’d grabbed hold of him somehow. I don’t know if it was his arm or he had some portion of him and sort of held him there because they were, you know, like it was a bit of a wrestle, and he sort of held him still, if you like”, and then the person with the circular design windcheater who we now know as Dunne was on the other side of Sharni, and then he was asked questions about that particular person. He said he was, “Punching down on Sharni’s back -

So as we say, your Honours, it is a flourish of our friend to suggest that he was presenting his back. It was a wrestle in the course of a brawl outside a hotel. If the Court pleases.

GUMMOW J: Thank you. We will take a short adjournment.

AT 12.11 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.16 PM:

GUMMOW J: There may be potentially important issues of principle to be considered in respect of the criminal liability of offenders who act in concert. However, we are not convinced that the directions given to the jury in this case affords a suitable instance in which to explore those issues. No objection was taken at the trial to the direction given by the trial judge in response to the question from the jury. Nor are we convinced that there are reasonable prospects of success in the appeal were special leave to be granted.

Accordingly, special leave is refused.

AT 12.17 PM THE MATTER WAS CONCLUDED