Clayton v The Queen; Hartwick v The Queen [2006] HCATrans 432 (8 August 2006)

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Clayton v The Queen; Hartwick v The Queen [2006] HCATrans 432 (8 August 2006)

Last Updated: 15 August 2006

[2006] HCATrans 432

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M156 of 2005

B e t w e e n -

CELIA KATHLEEN CLAYTON

Applicant

and

THE QUEEN

Respondent

Office of the Registry
Melbourne No M157 of 2005

B e t w e e n -

JOHN DOUGLAS HARTWICK

Applicant

and

THE QUEEN

Respondent

Office of the Registry
Melbourne No M158 of 2005

B e t w e e n -

LISA JANE HARTWICK

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON TUESDAY, 8 AUGUST 2006, AT 2.22 PM

Copyright in the High Court of Australia

MR M.J. CROUCHER: May it please the Court, I appear on behalf of the applicant Lisa Hartwick with my learned friend, MS J. HUGHES. (instructed by Robert Stary and Associates)

MR L.C. CARTER: May it please the Court, I appear on behalf of the applicant John Hartwick with my learned friend, MR M.J. GUMBLETON. (instructed by McNamaras)

MR C.B. BOYCE: May it please the Court, I appear on behalf of the applicant Celia Clayton with my learned friend, MR J.P. WHEELAHAN. (instructed by Patrick W. Dwyer)

MR P.A. COGHLAN, QC: May it please the Court, I appear with my learned friend, MS C.M. QUIN, on behalf of the respondent. (instructed by Director of Public Prosecutions (Victoria))

GLEESON CJ: Yes, Mr Croucher.

MR CROUCHER: If the Court pleases, we had proposed to divide the argument in the following way among the three applicants. You will see that our principal submission is the doctrine of extended common purpose as it applies to murder particularly should no longer - - -

KIRBY J: I am not hearing you. You will have to speak up.

MR CROUCHER: Our principal submission, your Honour, is that the doctrine of extended common purpose should no longer be part of the common law of Australia. In the alternative we have suggested some reforms. The division that we propose among the three applicants is as follows: firstly, that I propose to address our manifold criticisms of the existing doctrine which is to be found at paragraphs 1 to 60 of our joint written outline; secondly, it is proposed that Mr Carter will address the purported policy justifications for the doctrine, and that is at paragraphs 61 to 70 of our outline; and thirdly, Mr Boyce, it is proposed, will address our alternative proposals for reform, and that is at paragraphs 71 to 75 of our outline.

In summary, our criticisms of the doctrine as it exists now are these. I will list them and then come back and deal with each one. Firstly, in our submission, the doctrine allows outcomes where legal responsibility and moral culpability have insufficient correlation. Secondly, the doctrine creates asymmetries and anomalies in the area of complicity and particularly murder that bring the law into disrepute, in our submission. Thirdly, the doctrine has been extended in ways, in our submission, that are inconsistent with other decisions of this Court in the area of murder and complicity, including Giorgianni’s Case, Crabbe as it deals with murder, and to some extent Markby’s Case which we will come to as well. Fourthly, our submission is that the purported legal justification for the doctrine, or at least its broad scope, is wrong in principle. Fifthly, in our submission, the doctrine leaves insufficient room, if any, for the proper operation of manslaughter. Sixthly, the doctrine brings undue complexity to trials, in particular, and appeals as well. Seventhly, the scope of the doctrine at common law is even broader than the statutory formulation in the Criminal Code (Cth), and that, it is submitted, is wrong as well. The final point - - -

KIRBY J: Now, can I just ask, in many of the countries of the old common law the situation is complicated by the intervention of codes and statutes, but is there any jurisdiction that adopts the approach that you are urging on this Court?

MR CROUCHER: No, there is not. Precisely there is not. There are halfway houses - - -

KIRBY J: So we would be striking out all on our own in the area of criminal liability and differently from the path taken by the House of Lords from as recently as, I think, 1999?

MR CROUCHER: 1997. Yes, we are submitting that, your Honour, but our second alternative is, or our third submission is, that there are statutory formulations which are consistent with our third submission, namely, the Criminal Code (Cth), namely the New Zealand position and, similarly, to some extent, the position in other Code States as well. Can I go back now, unless your Honour has a further question about that, to the first submission about - - -

KIRBY J: I just wanted you to know that you have a bit of a hurdle trying to persuade us not only to reverse our own recent authority but to take a step in a direction in which no other final court has taken, given that you do not have too many models and in New Zealand and Canada they have codes and in a number of the jurisdictions of Australia they have codes.

GUMMOW J: Powell, by the way, was followed by the Privy Council in two cases in 1999, in Sooklal v State [1999] UKPC 37; [1999] 1 WLR 2011, a case from the West Indies, and the case of Johnson v State [1999] UKPC 36; [1999] 1 WLR 2000, the first judgment given by Lord Hope and the second by Lord Hutton. Lord Hutton gave the principal speech in Powell if you remember.

MR CROUCHER: That is right.

KIRBY J: Did Powell go to the European Court of Human Rights?

MR CROUCHER: Not that I am aware of.

KIRBY J: Can you check that in due course?

MR CROUCHER: Yes, we will.

KIRBY J: Because a lot of these cases where they say that there is an unjust outcome of - - -

GLEESON CJ: Mr Croucher, before you launch into this, could I just ask you to remind us where we find the law of murder in Victoria?

MR CROUCHER: At common law.

GLEESON CJ: At common law? No Crimes Act as there is New South Wales?

MR CROUCHER: No. There is section 323 of our Crimes Act which was mentioned by your Honour Justice Callinan in Osland’s Case. It is effectively procedural. For all intents and purposes the law of murder in Victoria is common law.

GLEESON CJ: What is the leading authority where we can most conveniently find that?

MR CROUCHER: Any number of them, your Honours, anyway - - -

GLEESON CJ: Malice of forethought consists of intent to kill or intent to cause grievous - - -

MR CROUCHER: Yes.

GLEESON CJ: - - - or killing with intent to cause grievous bodily harm,, reckless indifference to human life?

MR CROUCHER: It is not put in that way. Crabbe is adopted in the alternative that it is foresight of probability of death or grievous bodily harm.

GLEESON CJ: At some stage before the argument finishes it would just be of a help if you could give us a reference to the leading Victorian authority on the common law of murder in Victoria.

MR CROUCHER: As the Court pleases.

GUMMOW J: Do you still have felony murder?

MR CROUCHER: We have a statutory felony murder under section 3A.

GUMMOW J: It is not pure common law then.

MR CROUCHER: That is right. In the early 1980s the distinction between felonies and misdemeanours was abolished and by various sections the distinction now is only between indictable offences and summary offences and section 3A requires, effectively, that if in the course of a crime, the necessary elements of which include violence and carries a certain penalty, a person is killed by an act of violence, then the person will be guilty of murder.

GLEESON CJ: Insofar as you base arguments upon the relationship between legal responsibility and moral culpability, we will need to know in some convenient form what the Victorian law of murder is, apart from the issue that we are looking at in these appeals.

MR CROUCHER: As the Court pleases.

KIRBY J: There was a knife in Justice Gummow’s question, as you no doubt saw, that if Parliament can fix up felony murder maybe this is another little area they might fix up.

MR CROUCHER: Yes. Felony murder or constructed murder under section 3A is very, very rarely prosecuted.

GUMMOW J: That is not the point.

KIRBY J: It is a question of the delineation of the proper function of a final court and of Parliament in a particular jurisdiction, given that in Australia this varies between jurisdiction and Code jurisdictions.

GLEESON CJ: It is also a question of the legislature’s view of moral culpability as reflected, for example, in the legislative prescription concerning felony murder.

MR CROUCHER: There are situations in which felony murder under section 3A would not apply but extended common purpose would. That is how broad its reach is. The first criticism of the doctrine is that, as I submitted before, there is an insufficient correlation between legal responsibility on the one hand and moral culpability on the other. To take this example shows the point, in our submission. For the purposes of extended common purpose murder, if two people agree to go fishing and that they are going to steal fish from a dam – and this is an example taken from the trial judge’s charge in this case – and the principal in the course of that venture is confronted by the owner of the dam and takes his fishing knife out and intentionally stabs the person with an intention to cause really serious injury – and I say really serious injury because that is the synonym for grievous bodily harm in Victoria, as a matter of practice – then he will be guilty of murder if the person dies.

GLEESON CJ: That is a colourful example because fishermen usually carry knives for different purposes, but what about two people agreeing to hold up a service station and one of them takes out a knife and stabs the service station proprietor?

MR CROUCHER: Yes, you can apply that as well, if the principal in those circumstances intentionally causes really serious injury or - - -

KIRBY J: Yes, but even on the trial judge’s example, you have to have a jury that is willing to say, “That we conclude beyond reasonable doubt that the accused conceived it as a possible outcome and actually had that intent that it would be a possible outcome”.

MR CROUCHER: Your Honour says “have that intent” and your Honour has jumped ahead of me a stretch. The accessory need only foresee the possibility of an act done with the intention of causing really serious injury in order that he be guilty of murder by extended common purpose. There is no requirement that it be part of a common plan. It can be individual contemplation, and McAuliffe says as much. It need not be any contingent intention. He can believe that it is a totally unexpected event. He can believe that it is highly unlikely to occur. It is possible; anything is possible. Who knows what might happen, but I do not think it is likely to happen but, nevertheless, if it does in those circumstances as described, he will be guilty of murder.

HEYDON J: But it is morally very culpable to behave in that way.

MR CROUCHER: It is morally culpable.

HEYDON J: Very culpable.

MR CROUCHER: In our submission, it is not sufficiently culpable to warrant a conviction for murder when the principles at common law for murder are that a person must otherwise intend to kill or cause really serious injury or be reckless as to death or really serious injury. It is too far removed from that state of mind merely to foresee the possibility that something like that might happen. That is our submission at base, that there is too much of a disparity between culpability, the culpable states of mind, in those circumstances.

HEYDON J: That is a different argument, really. That is an argument from anomaly, is it not? Your argument at the moment is that there is no correlation between the legal responsibility and the moral culpability?

MR CROUCHER: Yes, because whether your Honour says it is very culpable or highly culpable or culpable, it is simply not as culpable as a person who intentionally kills or intentionally causes really serious injury, not as culpable as the principle, in those circumstances.

HEYDON J: Not all forms of murder either reveal or have to reveal equal culpability.

MR CROUCHER: No, and in fact there is one example in the common law itself. Intention to cause death will suffice but so will intention to cause really serious injury. There is already a form of differential mens rea that can apply, but this is to go too far. This is to say that merely foreseeing the possibility that someone might with intent cause really serious injury is enough under this doctrine, and it is just not enough, in our submission, as a matter of moral justification.

GLEESON CJ: But one of the problems is there are forms of murder which some people regard as not very morally culpable at all, what is sometimes described as euthanasia, for example.

MR CROUCHER: Yes.

GLEESON CJ: As Justice Heydon pointed out, the moral culpability involved in what we call murder varies greatly.

KIRBY J: On the other hand, your point is that murder is still the most serious crime in the lexicon and your proposition to us is that we should so frame this area of murder as to keep it that way because that has its own social purposes and accords with the balance between culpability and responsibility.

MR CROUCHER: That is right.

KIRBY J: So that we can keep in mind an actual practical case – I mean, this is involving your three clients – what happened here was an example of a sort of road rage, as I understand it, and going to a house and somebody picked up a knife. Was it a kitchen knife, was it, that was taken to the house?

MR CROUCHER: Yes.

KIRBY J: Then was a fracas and nobody knows who stabbed the deceased but it was obviously one of the three or it would be open to the jury to find beyond reasonable doubt that it was one of the three. Is that the sort of bare facts of the case?

MR CROUCHER: Yes, although your Honour mentioned picking up a knife. The evidence was that the knife or knives were taken from the house of the applicants.

GLEESON CJ: What Justice Kirby described as a kitchen knife was described in the judgment as a large carving knife.

MR CROUCHER: Yes.

KIRBY J: It was not a fish knife.

MR CROUCHER: No.

KIRBY J: But a knife that could do a lot of harm. The people who pick up those knives and take them on their way to the fracas really must know that terrible things happen when that happens. I mean, it is the experience we have seen in so many cases, even in this Court.

MR CROUCHER: The point your Honour just made then that you must know is one of the reasons why the doctrine is too broad, because if the test is only foresight of possibility and a murder actually does happen or a person is killed with the intention to cause really serious injury, and in circumstances where, in this example, people have gone to a house at least armed on one view of things and a man has already been angry in these circumstances who has crashed into their house and their cars, a jury will likely conclude that that it was possible, as shown by the result, or that one would have contemplated the possibility as inevitable because of the result, therefore that there is only this test of foresight of possibility, is going to catch those who hoped against and did not expect that there would be any such thing. They simply foresaw the possibility or in fact might not have even foreseen the possibility but the jury would infer that they would have or did because of the circumstances so described. That, with respect, is simply not fair. Not to call it murder – yes, manslaughter, by all means. Call it manslaughter, but it is not murder, in our submission.

KIRBY J: Is the penalty for murder in Victoria a compulsory imposition of life in prison?

MR CROUCHER: It is up to a maximum of life imprisonment.

KIRBY J: That is the maximum, but does it follow automatically under the law of Victoria or must the judge fix a – I think in this case it was 18 years.

MR CROUCHER: Yes. My learned friend will be able to tell you more accurately about this, I expect, your Honours, but in my experience in most cases fixed terms are imposed ranging from perhaps 18 to 25 years with a non-parole period of some period below that. In rare cases life sentences are imposed and in rare cases life sentences without non-parole periods are imposed – very rare cases. Manslaughter, on the other hand, carries a maximum term of 20 years gaol. Now, it is submitted that foresight of possibility is such a broad concept that it will catch those who ought not to be caught; it will inculpate those for murder who ought not to be guilty of murder.

HAYNE J: Do I understand this first point really as coming down to the point that foresight of possibility sets the doctrine apart from what you identify as the relevant degree of moral responsibility?

MR CROUCHER: Yes.

HAYNE J: Is it right to segregate foresight of possibility from the other elements of common purpose, namely, the existence of the common purpose and persistence?

MR CROUCHER: Yes. It is right to have regard to them as well but it can be so - - -

HAYNE J: But the foresight of possibility takes its legally significant character from the fact that there is a common purpose between, to use the term, the confederates and there is persistence in execution of the purpose.

MR CROUCHER: But, your Honour, the matter must be tested by principle in the end. There can be quite a comparatively innocuous common purpose which will still found the doctrine. That is why we give the fisherman example. In fact, on one view of the world, Miller’s Case in this Court, you do not even need a foundational crime. Be that as it may, of course, if a jury takes the view that there was a very dangerous plan afoot, basal crime, and, secondly, that there was a recognition of the possibility of something like this going wrong, those matters may be used as matters of evidence in the end to infer that the person did in fact intend the outcome that occurred, but that is a fundamental difference between the law of evidence and the substantive law. It is submitted that that is where this doctrine should be consigned, to the law of evidence, not to substantive law, and I will come to that in a moment.

The second point we make is that there are asymmetries and anomalies in the operation of complicity by reason of this doctrine which bring the law into disrepute. We mentioned Crabbe’s Case a moment ago. Crabbe requires at common law that if there is not an intention to kill or cause really serious injury then it will suffice if there is foresight of the probability that one’s actions will cause death or really serious injury, and that would be sufficient for murder.

So this Court in 1995 in Crabbe’s Case fixed on a form of recklessness that involves foresight of probability, yet here the accessory who is further removed from the crime – not the actual perpetrator of the crime, merely a participant in a lesser unlawful design – need only foresee the possibility of a particular outcome in order that he or she be found guilty. That asymmetry, it is submitted, is unfair and unjust.

Secondly, the mens rea for a related area of complicity, namely aiding and abetting or counselling and procuring, is higher again. At paragraph 24 of our outline we have extracted a passage from Giorgianni’s Case which was decided in 1985 in this Court. If I might read from the joint judgment of Justices Wilson, Deane and Dawson at pages 506 to 507 which is, as I say, extracted at paragraph 24. Their Honours said this:

For the purposes of many offences it may be true to say that if an act is done with foresight of its probable consequences, there is sufficient intent in law even if such intent may more properly be described as a form of recklessness. There are, however, offences in which it is not possible to speak of recklessness as constituting a sufficient intent. Attempt is one and conspiracy is another. And we think the offences of aiding and abetting and counselling and procuring are others. Those offences require intentional participation in a crime by lending assistance or encouragement. They do not, of course, require knowledge of the law and it is necessary to distinguish between knowledge of or belief in the existence of facts which constitute a criminal offence and knowledge or belief that those facts are made a criminal offence under the law. The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence. He need not recognize the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it. It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which he is assisting or encouraging are such, whether he realizes it or not, as to constitute the factual ingredients of a crime. If that were sufficient, a person might be guilty of aiding, abetting, counselling or procuring the commission of an offence which formed no part of his design. Intent is required and it is an intent which must be based on knowledge or belief of the necessary facts.

Murder by extended common purpose is a circumstance in which the offence forms no part of the accessory’s design. It is merely a possible incident that has been contemplated. It might have been hoped against, unexpected in the sense that it was far more likely than not not to happen but it did materialise in the circumstances, that possibility – possibilities being infinite – having materialised.

Now, there has been a lot of academic debate and some judicial difference of opinion about the precise meaning of that passage in Giorgianni’s Case. However, it is plain on whichever view is adopted of that passage that the mens rea for an accessory by way of aiding and abetting, counselling or procuring is much greater than that which is required for an accessory by way of extended common purpose.

Why is it so that there you would have this asymmetry in this doctrine? All of these doctrines – aiding and abetting, counselling and procuring, acting in concert, extended common purpose – are all designed in one way or another to inculpate the person who is not directly responsible for the crime. Why there should be these asymmetries is not clear to us. With respect, it is the opposite. There should be asymmetry insofar as asymmetry can be avoided.

HAYNE J: One theory advanced, particularly by Simester and Sullivan in their book Criminal Law: Theory and Doctrine, is that it is the agreement that makes the difference and that you can aid and abet, counsel or procure without reaching any agreement with the principal offender, but as the authors have it at page 226:

By entering into an agreement or joint enterprise, S [the offender] changes her normative position. She becomes, through her own deliberate choice, a participant in a group action to commit a crime.

Now, that is the footing that is put forward. What answer do you make to it?

MR CROUCHER: Firstly, in almost every case of aiding and abetting, acting in concert is also made out, which is sometimes called joint enterprise I think in New South Wales. In Victoria, Lowery and King language is acting in concert. So there is an agreement to cause serious injury or death in an acting in concert murder case. Aiding and abetting at the same time as in this case was left, concert, aiding and abetting and extended common purpose. There is a person who is assisting or encouraging in the actual killing, yet a higher threshold of mens rea is required. Counsellors and procurers are not at the scene but they have procured the crime, the basal crime. Yet Giorgianni would say that a counsellor and procurer away from the scene cannot be guilty by way of extended common purpose because the mens rea simply is not sufficient because he or she did not know or believe that the acts which constitute the crime, actus reus, mens rea, were going to occur.

If he foresaw it as a possibility or even a probability, then according to that passage in Giorgianni that additional crime forms no part of his design. It is not enough to say, it is respectfully submitted, that having agreed to a particular act that then turns it into a constructive crime, because that is what it does. A form of constructive murder is what extended common purpose is in the end.

KIRBY J: In that same text there is a quote from Lord Mustill in Powell saying there are problems of a conceptual intellectual nature with what the law says on this subject but that as a matter of practicality it is worth it because it discourages joint enterprises and particularly joint enterprises which involve instruments of violence, because of the experience of the law.

MR CROUCHER: But, in our respectful submission, that ignores several things. That ignores the work that aiding and abetting, counselling and procuring, acting in concert can already do, it ignores the availability of manslaughter, it ignores the difference in moral culpability between a person who intentionally kills or causes serious injury or is part of a plan to do so or encourages or assists to do so or is in some way a party to doing so as opposed to a person who simply foresees the possibility that as a result of some comparatively innocuous plan - - -

KIRBY J: Yes, but take this case, that would mean that the three accused would end up with a conviction of manslaughter, although it is clear that one of them used a knife and killed another human being.

MR CROUCHER: But that does not follow at all, with respect, your Honour. It may be on the facts that the jury will look at the evidence in each case differently and conclude that one - - -

KIRBY J: Presumably they did look pretty carefully because these were serious charges and they could not distinguish between any of the three of them.

MR CROUCHER: That was the way the Crown put its case. They said they could not distinguish on the evidence. They could not say who the person who perpetrated the knife wound that killed the man was, but each had a different case. Lisa Hartwick’s case was different in the sense that she said she was not a party to any assault directly or implicitly. She was simply there. She did not take a weapon and in fact she wanted to go at the moment she saw her husband stabbed, then he retaliated and she saw no more. So that is one way a jury could have easily said, in the absence of extended common purpose by way of murder, that she was guilty of manslaughter rather than of murder. Indeed, we say in the end that murder by way of extended common purpose is no more, really, than manslaughter. That is what it should be.

GLEESON CJ: Is Mohan the case in which the Privy Council held – it was a case from the Caribbean, I think – that if three people fall upon somebody using cutlasses, as it was in that case, although it is not all that old, the Crown does not have to prove which one of them actually inflicted the fatal wound?

MR CROUCHER: That is true, yes. It is accepted that in all areas of complicity there is no requirement to prove who caused the fatal wound. In aiding and abetting, for example, even though the law requires that it is derivative, it requires there be a principal offence committed by a principal offender, if on the evidence admissible against the accessory you are considering a principal offence has been committed, then you will be guilty, but even if the principal is actually acquitted because the evidence against him is different, you can still have a conviction, but it does not matter, according to the authorities – and your Honour rightly mentions one of them – whether or not there is an ability to prove who actually killed. But none of that changes our submission about the inequality, if you like, or the inappropriateness of allowing a conviction for murder in circumstances where one has only foreseen the possibility of intentionally causing serious injury occurring.

GLEESON CJ: But is Mohan and that line of country explained on the basis that that is what might be called simple common enterprise?

MR CROUCHER: Your Honour, I am not sure, to be frank, these days.

GLEESON CJ: In other words, if three people set upon somebody in the street out here and they all kick him and he dies, it does not matter which of them delivered the fatal kick?

MR CROUCHER: That is right.

GLEESON CJ: They are all guilty of murder.

MR CROUCHER: And to put it in concert terms, if they have all agreed to assault this person with an intention to kill or cause really serious injury, then each of them will be guilty of murder, but whether they are guilty of murder or something less will depend on the mens rea according to each. Osland’s Case makes that clear, as an example, or which defences might apply. One might have a defence of self-defence - - -

GLEESON CJ: I tried to take an example where it was pretty clear that they all intended to cause grievous bodily harm.

MR CROUCHER: Yes, but this is the twist, your Honours, if two people agreed to assault someone and their intention between them was to cause serious injury – not really serious injury, because that difference matters – and the person died, both would be under the law as it stands now not guilty of murder but guilty of manslaughter.

GLEESON CJ: There is not much doubt in this case, is there, that to put it around another way, they all intended that grievous bodily harm would come to the man against whom retribution was being exacted?

MR CROUCHER: No, there is doubt about that, your Honour. The Crown case was not an agreement to kill; the Crown case was there was an agreement to go and cause this man serious injury. That was the concert basis.

GLEESON CJ: An agreement reflected in - - -

MR CROUCHER: In what happened.

GLEESON CJ: No, in what they took with them.

MR CROUCHER: That, too, yes.

GLEESON CJ: A large carving knife, for example.

MR CROUCHER: Yes, but there were disputes about what was seen and what was known, you see, your Honour. For example, in my client’s case she said she was not aware of any weapons until the last minute when one of the other confederates pulled out a weapon and struck someone else with it. But to go back to my example, if in that example before instead of having an agreement to cause serious injury, there was an agreement to cause really serious injury then they would be guilty of murder. However, if the plan was to assault and if the principal went beyond that plan and intentionally caused really serious injury, he would be guilty of murder, yet the accessory by way of extended common purpose, if he was merely a party to an assault, an agreement to an assault, but foresaw only the possibility that it would go beyond an assault and be an intention to cause really serious injury, he could be guilty of murder. Yet the person who agrees to cause serious injury, as opposed to really serious injury, is guilty of manslaughter, which is unfair. He is less culpable than the person who has agreed to cause serious injury when he has only foreseen the possibility of something slightly more and expected nothing like that would occur.

Now, to come back to your Honour Justice Hayne’s point about Simester and Sullivan, because the agreement to commit the basal crime, which may or may not be required anyway if you look at Miller’s Case, but assuming it is required, can be so innocuous, it adds virtually nothing to the culpability. On the other hand, if there is a very, very culpable agreement or an agreement to commit a very, very dangerous act, and the evidence from the applicant is, for example, that, “Yes, well, I didn’t think anything would go beyond that but I thought it was possible”, then a jury is entitled to say, “Well, given what happened, given the agreement that you have admitted to, given that you accepted at least the possibility that something would go wrong, but I do not accept that, and given the other material in the case, I can infer that you in fact really did intend to cause really serious injury in the end and you should be guilty of murder in those circumstances”. But that again is a question of evidence, not a question of substantive law. That is the problem with this doctrine. It confuses the two, in our submission.

Now, our third submission is that the doctrine has been extended in ways inconsistent with other decisions of this Court. This partly is a repetition of what I have just said. I will try and confine it. It is this. In Giorgianni’s Case in 1985, the passage I just read was decided. Full mens rea required. You have to know that the killing is going to take place. You have to know that the person has mens rea in order to be guilty. Aiding and abetting and counselling and procuring the same, both forms of extended liability.

However, in Johns’ Case one of the questions was whether extended common purpose could apply to an accessory before the fact or, using the language of misdemeanour, a counsellor and procurer. Well, this Court said it could and applied a foresight of possibility test, yet Giorgianni is completely inconsistent with that. They do not sit together at the same time. Similarly, in 1985 Crabbe says that the form of recklessness that applies in murder, at least to a principal, is foresight of probability. Yet in Johns’ Case in 1980 the Court says, “Well, no, we are going to accept for an accessory, a person further removed from the killing, that foresight of possibility is enough”. They do not sit together it is submitted.

Thirdly, in Markby’s Case, which was decided a couple of years before Johns and which did not get much of a mention in Johns, this was said – and it is conveniently extracted in the judgment of your Honour the Chief Justice and Justice Callinan in Gillard’s Case, which is behind tab 2 of our bundle, at paragraph 16 on page 10 of the judgment:

In Markby v The Queen, Gibbs A-CJ said (omitting references):

“If . . . two men attack another without any intention to cause death or grievous bodily harm, and during the course of the attack one man forms an intention to kill the victim, and strikes the fatal blow with that intention, he may be convicted of murder while the other participant in the plan may be convicted of manslaughter. The reason why the principal assailant is guilty of murder and the other participant only of manslaughter in such a case is that the former had an actual intention to kill whereas the latter never intended that death or grievous bodily harm be caused to the victim, and if there had not been a departure from the common purpose the death of the victim would have rendered the two participants guilty of manslaughter only. In some cases the inactive participant in the common design may escape liability either for murder or manslaughter. If the principal assailant has gone completely beyond the scope of the common design, and for example ‘has used a weapon and acted in a way which no party to that common design could suspect’, the inactive participant is not guilty of either murder or manslaughter. If however the use of the weapon, even if its existence was unknown to the other party, is rightly regarded as no more than an unexpected incident in carrying out the common design the inactive participant may be convicted of manslaughter.”

Your Honours, I was wrong. There was another part of that passage which I thought was in the extract there, but your Honours have been provided with Markby as well. Could I take your Honours to Markby. There is a passage just immediately before that passage that I should have taken your Honours to. It is in Markby at page 112. Markby was provided additionally this morning. Your Honours all have that.

HEYDON J: I do not think all of us do. Now we do.

MR CROUCHER: At page 112, the passage which I have just read that was extracted in the judgment from Gillard is found, but the passage that precedes that in the same paragraph is this. It starts at 112 about a third of the way down the page:

It was erroneous to tell the jury that the applicant could be found guilty of manslaughter only if Holden also was guilty of manslaughter and not of murder. When two persons embark on a common unlawful design, the liability of one for acts done by the other depends on whether what was done was within the scope of the common design. Thus if two men go out to rob another, with the common design of using whatever force is necessary to achieve their object, even if that involves the killing of, or the infliction of grievous bodily harm on, the victim, both will be guilty of murder if the victim is killed.

Then the reading commences with the passage that I have read from Gillard. There is no suggestion in that passage of anything like the reasoning in Johns’ Case that foresight of possibility is enough and which was adopted in Chan Wing-Siu and then picked up again in this Court by McAuliffe.

KIRBY J: Your voice is dropping and if you want me to hear what you are saying you have to speak up. I think these are just recording devices. They are not amplification. Certainly I am not hearing. Now, this is a case where you did not seek manslaughter at the trial?

MR CROUCHER: Manslaughter was left, but, well, counsel put it in the way it is often put that we are not guilty, but leave it to the jury to decide whether a person is guilty of manslaughter or not in the alternative. Part of the reason it was not expressly sought, obviously, but left, was that self-defence was an issue which is a defence, of course, to both murder and manslaughter. In particular, there was evidence that in the course of being at the house that Mr Borg, the deceased, came out of nowhere with a knife, stabbed John Hartwick and that he responded in those circumstances. There was evidence that he was stabbed. There is no doubt about that.

The point I was seeking to make about the passage I have just read from page 112 of Markby is that there is no suggestion in that passage of any requirement of something as little as foresight of possibility of the relevant crime in order to inculpate the accessory; rather, the Acting Chief Justice said:

if two men go out to rob another, with the common design of using whatever force is necessary to achieve their object, even if that involves killing of, or the infliction of grievous bodily harm on, the victim, both will be guilty of murder if the victim is killed.

Then the alternative is given there which deals with the manslaughter situation or the acquittal situation. Nothing about, “And if one of them foresees the possibility that the other might intentionally cause really serious injury is guilty of murder”.

GLEESON CJ: This may not affect your argument – I do not know – but one of the practical aspects of cases like this that really is raised by your reference to Mr Borg a moment ago is that one of the possibilities is that a person who is the object of violence will resist. So that, to take an example I gave earlier, if two men go to rob a service station and one of them is armed with a knife or a gun, the other one might say, if the owner of the service station had put his hands up and handed over the till, it was never contemplated that anyone would do him any harm. The practical problem is that that is not the way many people respond to being confronted with violence.

The events of this case are described on pages 590 and 591 of the application book. You said a little earlier, for example, that your client’s case was that she did not know anybody was armed. Well, according to the Crown witnesses, before they set off your client proceeded to collect metal poles and pieces of wood to take with her on the expedition.

Now, one of the matters that is taken into account when people start talking about what was contemplated as a possibility as distinct from what was intended is that a victim will resist. The two people who go to rob a service station might have intended and hoped that the victim would simply hand over the money, in which case nothing would happen to him. But the law, in its present form at least, directs attention to what was contemplated as a possibility to take account of the practical reality that people confronted with violence resist and then escalate the violence.

MR CROUCHER: Yes, but, your Honours, a couple of things. Firstly, again you mention my client’s situation. We have to assume, on the basis of her record of interview, that that was one version that the jury might have accepted. On that version the jury might have said, “Well, we accept the most of what she says, but we are also satisfied that she must have contemplated the possibility and, in fact, because she must have, she did contemplate the possibility of that sort of resistance and of an intention to cause really serious injury as a result thereof”. But on that assumption, on those facts, that, in our submission, is not sufficiently culpable. It is different to warrant a murder conviction. Manslaughter, yes; murder, no.

It is acceptable to say that on the other version of the facts that your Honour the Chief Justice put to me a moment ago that if there was an acceptance of an arming of oneself and an acceptance that at the very least this sort of resistance would occur, by inference I am satisfied that when she says she did not realise these things were going to happen, she in fact did and lent herself to that object in those circumstances and intended or foresaw that it was such a likelihood that she could be regarded as intending in those circumstances. That is different from the way in which I put the facts to your Honours before based on her record of interview.

The important thing is, that if a jury takes the less culpable view of the facts that I put before, on the current doctrine she is still guilty of murder, but should not be. It is simply not sufficiently morally blameworthy to warrant a conviction for murder. Manslaughter, yes; murder, no. Murder is about either killing with the intention to kill or cause really serious injury, or having a plan to do so, at base.

Now, the other aspects about Johns’ Case which we are critical of are these. The facts in that case suggested that it was a common design to use whatever force is necessary, to borrow the words of the Acting Chief Justice in Markby’s Case, including the causing of grievous bodily harm. So it was a case which was unnecessary to say anything about foresight of possibility in the circumstances. Secondly, it was not a case where manslaughter seems to have been an issue. Things have changed since then. This Court in Barlow, in Gilbert, in Gillard itself more recently, has been astute to ensure that the alternative verdict is left and is open, and left properly, not just left as a fancy – as an impossibility, but left on the evidence. Well, in those cases that was not in issue.

Thirdly, in Johns there was no challenge, wrongly it is submitted, to the notion that an aider and abetter, or a principal in the second degree, as distinct from a counsellor and procurer, could be convicted based on foresight of possibility. Johns was principally about a counsellor and procurer away from the scene saying, “Well, because I am further removed from the scene, I need to have a higher level of mens rea before I am guilty than someone who is at the scene”, but there was no challenge to the basic principle that was enunciated in Johns that aiding and abetting would sufficiently be made out on foresight of possibility. But that is inconsistent with Giorgianni’s notion of aiding and abetting or counselling and procuring requiring full knowledge.

Fourthly, in Johns a false dichotomy was set up in the argument between on the one hand choosing possibility, on the other hand choosing probability in the sense of more probable than not. Justice Stephen, who gave the leading judgment on this issue, said you cannot have more probably than not; that is just too high a threshold. This Court recently in Darkan dealt with the very shades of meaning of probability in the Queensland Code, in section 8, and looked at more probable than not, something less than more probable than not, something less still and foresight of possibility or possibility, and plumped for the view that probability means something between those two extremes and not at either end. Had the argument been put in the way that is consistent with Darkan, then there might have been an adoption of a probability test rather than a possibility test, which is our third alternative.

GLEESON CJ: What do you say about the case of A and B going to rob a service station, A being armed with a loaded weapon to B’s knowledge? B can say truthfully, “I hoped, I intended, I expected that the service station proprietor would make no resistance and that he would hand over the money, in which case no harm would have come to him at all. It was my intention that we would depart from that service station with the money and with the service station proprietor uninjured.” But suppose the service station proprietor resists, the gun is discharged and the proprietor is killed. What, on your submission, is the culpability of B?

MR CROUCHER: Manslaughter. That is his culpability. His culpability rests in agreeing to commit an unlawful and dangerous act, the unlawful act being the robbery. It is dangerous in a sense required in Wilson that is tested objectively that a reasonable person would have realised an appreciable risk of serious injury in those circumstances because a reasonable person might reasonably have expected some sort of resistance in the circumstances. If that is his true state of mind, as your Honour has put it, he is not sufficiently culpable to be convicted of murder.

GLEESON CJ: According to the Criminal Code (Qld) that we were looking at in Darkan, there would be a substantial possibility that B would be guilty of murder, is there not?

MR CROUCHER: Maybe so.

GLEESON CJ: Because the probability of resistance and discharge of the firearm objectively would be there.

MR CROUCHER: Yes, but if on your Honour’s example it is accepted, or, more properly, it cannot be excluded beyond reasonable doubt, the truth of the assertion that “I only thought it was just a possibility. I didn’t think it would happen; it was unexpected; I hoped it wouldn’t happen and, lo and behold, it did”, yes, it is culpable but not sufficiently culpable to be guilty of murder.

GLEESON CJ: It is not an answer for him to say, “My preferred course would have been for that proprietor to have put up no resistance and just handed over the money. Therefore, I had no relevant intention”.

MR CROUCHER: It is an answer for him to say, in our respectful submission, that it was unexpected.

GLEESON CJ: Under the Criminal Code (Qld) it would be no answer.

MR CROUCHER: It is measured purely objectively, so if the jury take the view that, objectively speaking, it was probable, then your Honour is right, with respect.

GLEESON CJ: Probable not meaning more likely than not.

MR CROUCHER: That is right, and we do not plump in our alternative version for saying it should be more probable than not if that is the view that the Court takes. It would be consistent with the law as it is understood in other areas of murder, including Crabbe’s Case, that it be the probability that your Honour just spoke about then rather than more probable than not. That is the way it is understood. Boughey’s Case says as much. There is plenty of authority for that proposition, including Darkan itself now, I suppose.

The final point I wanted to make about Johns under this heading of the doctrine being extended in ways that are inconsistent with other decisions of this Court is that this notion of possibility which was mentioned for the first time in Johns’ Case was picked up in Chan Wing-Siu by Sir Robin Cooke and extended to not just contemplation as a group, which was what Johns was about – it was group contemplation that we realised that this would happen – but extended to individual contemplation in Chan Wing-Siu and then in McAuliffe’s Case in 1994 that reasoning of Sir Robin Cooke was picked up – again, individual contemplation.

So we have gone from in Markby where in order to be convicted of murder there must be an agreement to do something quite serious with the understanding that we will do whatever is necessary to effect our crime, including kill or cause really serious injury, by the time we get to McAuliffe to merely foreseeing the possibility that someone might cause really serious injury and were guilty of the crime. It is a massive shift, it is submitted, and unnecessary.

HAYNE J: It is a shift that either occurred in or had occurred by the time of McAuliffe?

MR CROUCHER: Yes, the shift had occurred at least in England in Chan Wing-Siu by picking up what we say was an erroneous point in Johns’ Case and applying it to individual contemplation and in this Court in McAuliffe adopted that individual contemplation approach with foresight or possibility.

The fourth point is that, in our submission, the purported legal justification for the doctrine is wrong in two respects. At our paragraph 47 in our submissions we have extracted a passage from McAuliffe at pages 117 to 118 where the Court in a joint judgment said this:

[In Johns, there] was no occasion for the Court to turn its attention to the situation where one party foresees, but does not agree to, a crime other than that which is planned, and continues to participate in the venture. However, the secondary offender in that situation is as much a party to the crime which is an incident of the agreed venture as he is when the incidental crime falls within the common purpose. Of course, in that situation the prosecution must prove that the individual concerned foresaw that the incidental crime might be committed and cannot rely upon the existence of the common purpose as establishing that state of mind. But there is no other relevant distinction. As Sir Robin Cooke observed, the criminal culpability lies in the participation in the joint criminal enterprise with the necessary foresight and that is so whether the foresight is that of an individual party or is shared by all parties. That is in accordance with the general principle of the criminal law that a person who intentionally assists in the commission of a crime or encourages its commission may be convicted as a party to it.

There is no problem with the last sentence as a statement of what the law is but it is the equating of extended common purpose to an incorporation of that principle. It is respectfully submitted that is wrong. It is completely inconsistent with the passage which I read to your Honours from Giorgianni where their Honours Justices Wilson, Deane and Dawson said – and this is back at paragraph 24 of our submissions – at pages 506 to 507 of Giorgianni:

It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which he is assisting or encouraging are such, whether he realizes it or not, as to constitute the factual ingredients of a crime. If that were sufficient, a person might be guilty of aiding, abetting, counselling or procuring the commission of an offence which formed no part of his design. Intent is required and it is an intent which must be based on knowledge or belief of the necessary facts.

It is respectfully submitted they are inconsistent. The last line of the passage which I have read from McAuliffe as the legal justification is the legal justification for aiding and abetting, counselling and procuring being what it is. In Giorgianni, as I have just read, it shows that you must have full knowledge, not knowledge that something is probable, certainly not knowledge that something is possible, but full knowledge. They are vastly different concepts and they cannot stand together, it is respectfully submitted.

HAYNE J: In McAuliffe [1995] HCA 37; 183 CLR 108 the Court traced what it saw as being the development of this area of the law, particularly from pages 114 onwards, where at 114 at about point 3 of the page in the paragraph commencing “Not only that”, their Honours trace the development from an objective understanding of scope of common purpose to what becomes a subjective test hinged about possibility.

MR CROUCHER: Yes. Post-Woolmington that has probably occurred.

HAYNE J: What is the fault in that line of argument?

MR CROUCHER: Historically that is correct. There is no criticism that historically that is a correct way of tracing it but it is inconsistent, it is submitted, with what Acting Chief Justice Gibbs said in the passage in Markby to which I have taken your Honours, namely that there must be an agreement to do something and that part of that agreement be that whatever is necessary to commit the basal offence, and if that includes causing really serious injury or death, then so be it. That is the requirement for murder. Anything less is in manslaughter territory. Again, to quote from - - -

GLEESON CJ: Historically this was said in 1619:

if I command a Man to rob such a one, and he attempts to rob him, and the other defends himself, and a Combat ensues between them, and the Person attempted to be robbed is killed, I shall be Accessary to this Murder, because when he attempted to rob him, he pursued my Command, and then when he pursued my Command, and in the Execution thereof another Thing happened, I ought in Reason to be deemed a Party therein, because my Command was the Cause of it.

You will find the history of this discussed in Chief Justice Street’s judgment in the Court of Criminal Appeal of New South Wales in Johns [1978] 1 NSWLR 282. My recollection is that when we looked at that Queensland case a few months ago we noted that the Criminal Code (Qld) which is objective rather than subjective but subject to that qualification is the same as the common law doctrine. The Criminal Code (Qld) was regarded by Sir Samuel Griffith as being in conformity with the English texts at the time. The introduction of subjectivity, subjective expectation as distinct from objective probability, was intended to be in aid of the accused.

MR CROUCHER: And it would be – if the maintenance of probability occurred with subjective foresight as opposed to objective probability, then it would be closer to the mark, in our submission, and it would also, as it happens, be consistent with recklessness as required by Crabbe’s Case in murder for a principal offender.

KIRBY J: That is essentially what you want, is it not? You want subjectivity plus probability, probability to replace possibility in the formulations in McAuliffe.

MR CROUCHER: That is our third-best, your Honour. Our first-best is - - -

KIRBY J: Can I just ask you a thought that has perhaps come from the side. Originally at common law, certainly in New South Wales by statute in the Crimes Act as it originally was, it was always competent to a jury to return a verdict of manslaughter. They changed the Crimes Act (NSW) when we considered that in Lavender but I think it is still possible for a New South Wales jury to return a verdict of manslaughter in every case of homicide.

If one grafted onto what McAuliffe has said and Darkan in the Code States has reaffirmed, as it were, a subclause that said that the jury can always be told in cases of homicide that it is open to them at common law to return a verdict of manslaughter if they consider that that more properly reflects the culpability of the accused, would that not be a way of preserving the current state of the law but reserving to a jury a way to reflect a conclusion on culpability that would in a sense achieve your aim and perhaps make the jury task a little bit more in tune with moral culpability? Footnote: the danger is that it might tempt juries into compromising their oaths and returning verdicts of manslaughter which at trial in our experience accuseds’ counsel always resist, and then they come up to the Court of Criminal Appeal and the High Court and say, “This is a shocking thing that the judge didn’t leave manslaughter”.

MR CROUCHER: Yes, they do.

KIRBY J: We have seen it so many times we are immune to it. What is the answer to that though? If that was the common law – and it used to be by a provision in the Crimes Act (NSW) – why is that not one way whereby you could get the juries back in particular cases to culpability?

MR CROUCHER: Could I say a couple of things. Firstly, your Honour, I think it is section 421 of our Crimes Act or thereabouts that says that manslaughter is necessarily included as an alternative in every murder indictment. It is always - - -

KIRBY J: You are dropping your voice again, I am afraid.

MR CROUCHER: Manslaughter is necessarily included - - -

KIRBY J: We are not a jury here; you do not have to whisper to us.

MR CROUCHER: Under section 421 or thereabouts in our Crimes Act, manslaughter is necessarily included in every murder count. It can be left in the alternative, provided it arises on the facts. That is the first point.

GLEESON CJ: And consistently with the judge’s directions on the law.

MR CROUCHER: That is right. The second point though is that the scope of murder by extended common purpose now is so broad by foreseeing possibility that there is virtually no work left for manslaughter to do, so it becomes a choice between murder and acquittal – and this case is an illustration of that – because there is no realistic difference between them on the directions that are given. Our submission is that manslaughter threshold is currently here, murder is perhaps a little bit above it. We say manslaughter should stay where it is, murder should be slightly higher by changing the mens rea component of extended common purpose by the accessory at least to probability which would be consistent with the form of recklessness required by Crabbe’s Case - - -

KIRBY J: We understand what you are trying to do and I personally have some sympathy for your general objective, but the problem is we have the House of Lords in 1998, we have the Privy Council speaking for the remnants of the empire through a New Zealand judge in that case that you have just read us, we have the High Court of Australia in McAuliffe and repeated in several other cases since; we have the Code States which take their own course, we have Parliament in Victoria making specific amendments on felony murder. Why would we buy into it when no other final court has decided this unless there is some simple way that will preserve to juries a reflection of culpability?

MR CROUCHER: There is a simple way, and it is that which - - -

KIRBY J: You want to put probability in it - - -

MR CROUCHER: Yes.

KIRBY J: - - - but no one else has done that. The Queenslanders and the Codes have done it, but objectively - - -

MR CROUCHER: Yes, objectively.

KIRBY J: - - - and that is a different kettle of fish than what you are urging on us.

MR CROUCHER: Well, it is, but objective probability is still a higher threshold, in our submission, than foresight of possibility.

GLEESON CJ: Objective probability would not have done you much good in this case. We are not dealing with a bunch of boy scouts and girl guides here. You only have to look at the remarks on sentence to see the propensities of the people who were involved and the propensities of the man who was ultimately killed to resist.

KIRBY J: Well, you say you would have rather taken your chance with probability than possibility, because everything is possible?

MR CROUCHER: Exactly.

KIRBY J: But it has to be possible with the subjective element?

MR CROUCHER: Yes, it has. We say it should be subjective probability at the least. I mean, to be consistent with aiding and abetting and counselling and procuring and acting in concert, as Giorgianni and Osland respectively would have it, it should not be even probability; it should be full knowledge or intention. So probability is even a second-best outcome, but at least it would make it closer to the mens rea required for a principal offender.

KIRBY J: All of this is designed to up the ante of murder, to leave the space for manslaughter, so that juries can return verdicts of manslaughter which can then be reflected in sentencing.

MR CROUCHER: Yes, and it has been accepted for many years that manslaughter is an offence that can be committed in a very wide variety of circumstances ranging from very low levels of culpability through to very high.

KIRBY J: The problem is, Mr Croucher, if you sit here, it is a very big ask to ask judges, against the background that I have indicated to you, to fix this up. It is a very big ask, especially where no other final court has done it and, indeed, recently they have done exactly opposite. They have confirmed the common law and it has a long history behind it.

MR CROUCHER: But one of the problems, it is submitted, your Honours – and this is the second reason why the doctrine is flawed in principle – is that there is a confusion between evidence and substantive law. The House of Lords in a series of cases in England throughout the mid-1980s and through to the 1990s said that insofar as murder is concerned it is not correct to speak of foresight of probability, foresight of possibility, even foresight of a high likelihood, as constituting a sufficient mens rea for the purposes of murder. The mens rea for murder is an intention to kill or cause really serious injury and those other matters are matters of evidence. We have extracted two passages from Moloney where that point is made well. Paragraph 52 of our written submissions is a passage from Lord Bridge’s judgment in Moloney where his Lordship says this:

Starting from the proposition established by Reg. v. Vickers [1957] 2 Q.B. 664, as modified by Director of Public Prosecutions v Smith [1961] A.C. 290 that the mental element in murder requires proof of an intention to kill or cause really serious injury, the first fundamental question to be answered is whether there is any rule of substantive law that foresight by the accused of one of those eventualities as a probable consequence of his voluntary act, where the probability can be defined as exceeding a certain degree, is equivalent or alternative to the necessary intention. I would answer this question in the negative. Here I derive powerful support from the speech of my noble and learned friend, Lord Hailsham of St. Marylebone L.C., in Reg. v. Hyam [1974] UKHL 2; [1975] A.C. 55. He said, at p. 75:

“I do not, therefore, consider, as was suggested in argument, that the fact that a state of affairs is correctly foreseen as a highly probable consequence of what is done is the same thing as the fact that the state of affairs is intended.”

And again, at p. 77:

“I do not think that foresight as such of a high degree of probability is at all the same thing as intention, and, in my view, it is not foresight but intention which constitutes the mental element in murder.”

Then Lord Bridge takes up his judgment again:

I am firmly of opinion that foresight of consequences, as an element bearing on the issue of intention in murder, or indeed any other crime of specific intent, belongs, not to the substantive law, but to the law of evidence. Here again I am happy to find myself aligned with my noble and learned friend, Lord Hailsham of St. Marylebone L.C., in Reg. v. Hyam [1974] UKHL 2; [1975] A.C. 55, where he said, at p. 65: “Knowledge or foresight is at the best material which entitles or compels a jury to draw the necessary inference as to intention.”

Lord Hailsham said a similar thing also in Moloney. This Court in Kural’s Case, in a series of drug cases, was careful to make that distinction: matters of evidence versus matters of substantive law. If the House of Lords had had in England a form of recklessness which sufficed as the mens rea for murder as opposed to this view where it is only a matter of evidence, their Lordships might have decided whether this doctrine of extended common purpose exists at all quite differently. Our submission is that, as with the House of Lords, this requirement that there be only foresight of possibility of a particular result should be consigned to the law of evidence, not to substantive law. It is wrong in principle, it is submitted.

GLEESON CJ: But it is to be used as evidence of what fact?

MR CROUCHER: Of intention to commit the act.

GLEESON CJ: So you confine accessorial liability to intention that the victim be killed or be caused grievous bodily harm?

MR CROUCHER: At the highest, yes. That would be consistent, in our submission, with Giorgianni, it would be consistent with Osland, Giorgianni being aiding and abetting, counselling and procuring, the derivative forms of liability, Osland’s Case being the direct form of liability but as an accessory.

GLEESON CJ: And in this case was there any room for doubt? On the evidence that was accepted by the jury, would there have been any room for doubt that there was an intention to cause grievous bodily harm to – what was the name of the victim?

MR CROUCHER: Mr Borg.

GLEESON CJ: Mr Borg. Was there room for any doubt that there was intent that Mr Borg would come to grievous bodily harm?

MR CROUCHER: Yes, there was room for doubt. This doctrine that was left - - -

GLEESON CJ: What did they intend would happen to him?

MR CROUCHER: Well, your Honours, on my client’s version, for example, she went there unwillingly, said that she would be bashed if she did not go, was not aware of any weapons until one was pulled out at the last minute, then Mr Borg came along, she saw him stab her husband and then a scuffle ensued, she did not see the rest of it. Now, on that version of events, extended common purpose if the jury accepted that nevertheless she foresaw the possibility – firstly, agreed to have some sort of assault on Mr Borg and, secondly, foresaw the possibility that it would go beyond a mere assault and involve an intention to cause really serious injury, she would be guilty - - -

GLEESON CJ: By your client’s version, you mean what she said in her record of interview?

MR CROUCHER: Yes.

GLEESON CJ: What emerges from her record of interview as to her version of what the purpose of the visit to Mr Borg was?

MR CROUCHER: It was about recompense. It was about talking to them about their smashed cars because - - -

KIRBY J: I do not think it was talking. It was to go and get some money to fix up the cars. There was not going to be too much talking. They were going to get their money back because there had been a violent action where his car went into one car that went into another car that smashed into their home and there was a tremendous lot of damage and it would have been a very upsetting event and then they set out, but they set out with a long carving knife. Then there was a mortal embrace of Mr John Hartwick and Mr Borg and apparently each was trying to stab the other, so I understand the evidence.

MR CROUCHER: On one version of it, yes.

GLEESON CJ: This was not an exercise in alternative dispute resolution.

MR CROUCHER: No, it was not, but it is not to say that it was not open to infer an agreement to cause really serious injury. Indeed, that is the way in which the judge sentenced in the end, although the Crown case was never that there was an intention to kill. It was an agreement to cause serious injury. The difference between an agreement to cause really serious injury and manslaughter is miniscule and it is made all the worse by leaving a third basis, an agreement to assault much less than serious injury foreseeing the possibility that serious injury might be caused intentionally. That intrudes into the area of manslaughter and leaves no reasonable basis in the end for giving the jury an option to consider manslaughter in the alternative.

KIRBY J: Are you intruding into Mr Boyce’s arguments now or are you - - -

MR CROUCHER: I am trying not to, your Honour.

HAYNE J: Why should the Court look again at the rule which was established in McAuliffe? Let it be assumed that the arguments you advance are cogent arguments, why would the Court now at this remove from McAuliffe restate the common law rather than leave it to the legislature to intervene as it sees fit?

MR CROUCHER: Because, in our submission, it is seriously wrong. It is this Court’s function to correct matters like that, in our submission.

GUMMOW J: No, it is not. The question is, why should we reopen Gillard and McAuliffe and all these other cases? You have to address yourself at some stage to John v Commissioner of Taxation, have you not?

MR CROUCHER: Your Honours, it is submitted that it is seriously wrong and ought to be corrected. It is inconsistent - - -

GUMMOW J: There are other criteria in John v Commissioner of Taxation.

MR CROUCHER: Well, your Honours, it is a relatively recent decision but we have sought to trace through how really there has been a misunderstanding or a failure to grapple with what the Acting Chief Justice said in Markby and then on an unusual set of facts apply this extended form of the doctrine to Johns, picked up by Sir Robin Cooke in Chan Wing-Siu, extended to individual contemplation rather than group contemplation, and then McAuliffe picks up that same line of reasoning to individual contemplation at this very low threshold – lower than probability, for example.

GLEESON CJ: Mr Croucher, as a matter of history, is one explanation of the difference between the Code States, or the Queensland Code, which has a doctrine of extended common purpose but bases it on objective probability, not meaning more probable than not, and the common law States, which has the principle stated in McAuliffe and Gillard, that, as Sir Owen Dixon pointed out in his famous article on the law of homicide, historically it is only relatively recently that the law has concentrated on subjective state of mind, as is reflected in that passage I read from a text of 1629, I think. If you cause somebody’s death, you were guilty of murder.

My recollection of the textbooks we looked at at the end of the 19th century when the Codes were being drafted in England and in Queensland and other colonies was that objective causation and considerations of objective probability were then consistent with what the law called murder. We have got into this situation that you are describing now because of the law’s relatively recent concentration on state of mind of an individual. Is that consistent with your understanding?

MR CROUCHER: Yes, it is, particularly post-Woolmington there has been more concentration on - - -

GLEESON CJ: And Woolmington was only as recently as the 1930s.

MR CROUCHER: 1935.

GLEESON CJ: So there can be a danger in appeals to history in this area unless you are using history in a very recent sense.

MR CROUCHER: But I suppose part of the problem is that when the law does move to a more subjective approach in one area, the rest has to catch up, otherwise there will be the asymmetries, and that is what has happened in the area of murder.

KIRBY J: As I understand it, your submission is the law’s movement is a movement which is a good and proper movement and it is one which reflects the values of a civilised state, that you do not punish people just for what they do, you require that there be this intention, that that is a general principle in our law and, certainly, in the common law. There are exceptions and there are exceptions by statute, but that is the general principle and it is a good and proper and moral principle. What we now have to do is to try and work out where we have ended up in this particular little branch of the law of homicide. You say it is now out of harmony with the embrace of the dual principle and that is what we have to try and fix up.

MR CROUCHER: Yes, and leaves virtually no room for the operation of manslaughter in joint ventures.

KIRBY J: You say that, but if you have a sort of general catch-all that judges could tell juries, that might fix that problem up but with the danger that you might lead to compromises, because trial counsel never like that alternative direction, do they?

MR CROUCHER: Well, sometimes they do – it depends who runs them, but sometimes they do. But, yes, your Honour is right, generally speaking they do not.

GLEESON CJ: Well, it shows juries a way out.

MR CROUCHER: Yes.

GLEESON CJ: And that is the danger from defence counsel’s point of view.

MR CROUCHER: Yes.

HAYNE J: And it shows juries a way out that by hypothesis is not a way out according to law.

MR CROUCHER: But we are not asking for that in this case, your Honour.

HAYNE J: I understand that, but the addition of a rider “You can always return a verdict of manslaughter” is implicitly based on the premise that manslaughter is not a verdict available to you as a matter of law but despite that you may return it. It is a very difficult position for the law to find itself in if it is committed to trial according to law.

MR CROUCHER: Well, but this Court in the line of cases - Barlow, Gilbert – has been careful to ensure that there is an alternative left to juries when it is open on the evidence.

HAYNE J: Where open.

MR CROUCHER: Where open, and we accept that.

GLEESON CJ: The proposition that juries can always return a verdict of manslaughter has an ambiguity in it. It is bound up with the difficult question of what a judge can do about it if the jury returns a perverse verdict.

MR CROUCHER: Well, Gammage’s Case, I think, is one - - -

GLEESON CJ: But what judges set out to do when they instruct juries is to tell them what the law is and they leave it to them to apply the facts to the law as given to them. They do not exercise a discretion as to whether to apply the law.

MR CROUCHER: All we are asking for, your Honours, in this case is to leave some room for manslaughter to operate.

HAYNE J: Now, in that context, going back to John’s Case [1989] HCA 5; 166 CLR 417, particularly at 438 to 439, the Court identifies four matters which have in past cases justified departure from earlier decisions – I am not to be taken as suggesting that this list is exhaustive, but there are at least four matters that have in the past justified departure:

The first was that the earlier decisions did not rest upon a principle carefully worked out in a significant succession of cases. The second was a difference between the reasons of the justices constituting the majority in one of the earlier decisions. The third was that the earlier decisions had achieved no useful result but on the contrary had led to considerable inconvenience. The fourth was that the earlier decisions had not been independently acted on in a manner which militated against reconsideration –

Do you say that any of those four considerations is engaged in this case in respect of McAuliffe and Gillard?

MR CROUCHER: Yes, at least two. It is submitted, for reasons which I will not repeat, your Honours, that the line following Markby from Johns through to Chan Wing-Siu and then McAuliffe went astray, your Honours, firstly; secondly, no useful result. This area of the law is unnecessary in order to catch those who should be guilty with murder. Aiding and abetting, counselling and procuring, acting in concert, are all sufficiently broad in their scope to render those guilty of murder who should be guilty of murder.

If the Court took our alternative position and said, “Well, we preserve extended common purpose but substitute instead of “foresight of possibility” “foresight of probability”, which would be consistent with Crabbe’s Case, then at least it would go some way to ameliorating, in our submission, the harshness of the doctrine and would be more consistent, but still not totally consistent, with other principle.

In Wilson’s Case, which we have referred to in a footnote, in this Court in 1992, the Court when considering whether battery manslaughter should remain part of the common law was prepared to say that because battery manslaughter led to convictions for manslaughter in circumstances where moral culpability and legal responsibility were not in line it should be abolished, but at the same time the Court was prepared to say that manslaughter by unlawful and dangerous act should be amended. That is to say that their Honours decided to adopt the test of unlawful and dangerous act manslaughter as enunciated by Justice Smith in Holzer’s Case but with a bit of a variation.

One of the variations that their Honours considered was that instead of there being a need for an unlawful act and a dangerous act - dangerous in the sense that a reasonable person in the position of the accused would have realised an appreciable risk of really serious injury – their Honours said the qualifier “really” should be removed for fear that it might bring murder and manslaughter “perilously close” to each other and be apt to confuse juries.

In this area, extended common purpose, at least since 1994, has come to the point now where it now more than is apt to confuse juries. It has gone beyond its bounds. It has intruded into the area of what should be manslaughter and that is seriously wrong and capable of being productive of injustice. In circumstances where the evidence is such that a jury can infer the intention to cause really serious injury or foresight of the probability of death or serious injury, then, on our submission, there would be a conviction.

Our proposal will not change the law in a way that will see hordes of acquittals in these cases. It will mean that where the jury does come to the view that the person has only foreseen the possibility, did not expect the more serious thing to happen, that they would be guilty of manslaughter and not of murder and that would - - -

KIRBY J: You have said this now about five times and every time you have shown the distance between murder and manslaughter is getting a little bit closer and not enough space, but one of the factors that I think is made perhaps in your favour that is not mentioned in Johns is that normally one would like to think that if there were a disharmony here in murder and manslaughter then one could look to the legislature to fix it up. I think that if we believe that in the present age we would be indulging in a fiction. I do not think this is the sort of thing the legislatures are likely to fix up at all.

MR CROUCHER: No, it is not a particularly popular course.

KIRBY J: No votes in fixing this issue up. It is a question of basic justice and if anybody is going to do it, it will have to be the Court.

MR CROUCHER: Your Honours, our sixth point as to why the doctrine is in need of repair or removal is that it brings undue complexity to trials and appeals. It is unnecessary. In that regard, may I rely on what we have written about that at paragraphs 56 through to 60. Our seventh point is that, in our submission, the doctrine of extended common purpose as it applies at common law is even broader in its scope than the Criminal Code (Cth) which has adopted a test which has a high level of foresight in terms of the mens rea aspect and also that which must be foreseen is more culpable, if you like. You must foresee the actus reus, that is to say the causation of death, and you must foresee the mens rea as well.

At common law, yes, you must foresee the mens rea but only at a foresight of possibility but you do not have to foresee the actual causation of death. You only have to foresee an act with the requisite intention, which might be as low as intention to cause really serious injury. That is too far removed. So insofar as there ought to be a degree of harmony, insofar as there can be, between Code provisions and the common law, there is disharmony and it ought to be corrected.

Now, I otherwise rely on what we have written about the matters that I was to address - - -

GLEESON CJ: But you have just told us, have you not, that the Code provisions are different from one another?

MR CROUCHER: Yes, they are.

GLEESON CJ: Well, when you say, if there is disharmony between the common law and the Code provisions, the common law ought to be brought into harmony with the Code provisions, which Code provisions?

MR CROUCHER: The Commonwealth Code, your Honours. That is our submission. Now, unless there are any other questions about the matters that I have raised, I will sit down and let Mr Carter deal with the purported policy arguments in favour of the doctrine and our answer to those.

GLEESON CJ: Thank you, Mr Croucher. Yes, Mr Carter.

MR CARTER: Your Honours, Mr Croucher’s coverage of the material should render this topic, whilst important and, in my submission, at the heart of the issue that confronts the Court, hopefully efficient. There is no attempt to gainsay on our part the fundamental importance that the criminal law attaches to punishing people who participate in dangerous criminal enterprises resulting in death to the achievement of deterrence of citizens participating in such functions and - - -

KIRBY J: You are appearing for John Hartwick, are you?

MR CARTER: That is so, your Honour.

KIRBY J: He is the person who was locked in the embrace with a knife, so he had the knife at a certain time.

MR CARTER: That is partly correct - - -

KIRBY J: He is the one who said to his wife, I think, “Make sure you wash these”, and she went away and washed them.

MR CARTER: There are a number of aspects there, your Honour. The description that was given by, in effect, the only Crown witness, Ms Rodwell, was that Mr Hartwick and Mr Borg were engaged in a dagging motion, suggesting - - -

KIRBY J: Which is stabbing apparently.

MR CARTER: Yes, but in terms of whether there was any evidence given by her as to whether she had seen the stab wound that caused death, that was a mater of real controversy.

KIRBY J: The deceased had a knife and your client had a knife and your client was stabbed and the deceased was stabbed. However, it is not for us to sort out what the jury did not sort out. It is just that people who go around with knives are liable to get stabbed and to stab.

MR CARTER: No, I just did not want to be taken to be assenting to everything that your Honour Justice Kirby just said because there were a number of factual matters rolled up in that. Yes, there was evidence from which the jury was entitled to infer that John Hartwick might have been a stabber but, fundamentally, in this case – and it is one of the reasons why the doctrine of extended common purpose, on one view of it, was significant, as was every other doctrine of complicity – was that the Crown could not say who inflicted the fatal stab wound.

Now, coming back to the question of public policy, it is clear that the concern of the authorities in this area is to criminalise those who participate in dangerous criminal enterprises that, in the case of murder, result in death.

GLEESON CJ: That is my question I wanted to ask you. You used the expression “in the case of murder”. The doctrine with which we are concerned is not only concerned with homicide, is it?

MR CARTER: That is right.

GLEESON CJ: Then all the arguments we have heard so far are about the operation of the doctrine in relation to homicide and the relationship between murder and manslaughter, for example. Let me give you another example which has nothing to do with homicide. Suppose A and B embark upon a common enterprise of setting fire to X’s house. Suppose the fire spreads and burns down Y’s house, that not having been within the intention of either of them. Suppose the fire was actually started by A. What are the principles that affect B’s criminal responsibility for the destruction of Y’s house?

MR CARTER: Potentially other doctrines of complexity, including aiding and abetting, leaving aside the controversy that Mr Croucher has identified, in short compass orally but in more detail in our written submissions, as to precisely how Giorgianni is to be understood. That is not a very satisfactory answer to your Honour the Chief Justice’s question at this point, but can I say that our submission as to extended common purpose is that it should be abolished in respect of all crime. We acknowledge that most of the debate about it takes place in the homicide context because practically – and the learned Director may put a different submission to the Court - - -

GLEESON CJ: In the homicide context you always have the safety net of manslaughter – I mean the forensic safety net of manslaughter – but what about crimes where you do not have that forensic safety net?

MR CARTER: The people who should be convicted of those crimes will be convicted under the existing doctrines. I do not say that your Honour the Chief Justice puts it this way, but in terms of the notion of people escaping liability who ought not that it is difficult to actually conceive of examples of that. Certainly, practically, as I was in the process of saying, we do not understand from our experience, at least in Victoria, that the doctrine of extended common purpose is very often relied upon by the Crown at all outside the homicide context but, as I say, the Director might have a different submission in respect of that.

I wanted, your Honours, to just briefly identify from some of the authorities that we have provided, so that I am not talking in the abstract here, what are the statements of underlying public policy that appear to have shaped the development of doctrine in this area. Could I take your Honours firstly to the decision of the Privy Council in Chan Wing-Siu [1985] 1 AC 169 which was provided additionally this morning. It is obviously an important decision because it was followed in McAuliffe. Sir Robin Cooke delivered the judgment of their Lordships at page 177D. It is just this sentence I wanted to read, your Honours:

What public policy requires was rightly identified in the submissions for the Crown. Where a man lends himself to a criminal enterprise knowing that potentially murderous weapons are to be carried, and in the event they are in fact used by his partner with an intent sufficient for murder, he should not escape the consequences by reliance upon a nuance of prior assessment, only too likely to have been optimistic.

That statement falling in the context of a rejection of a submission as to a higher necessary mens rea. Secondly, your Honours, in the important decision of R v Powell and English [1999] 1 AC 1 which was provided in our initial list behind tab 6 – before I go to the specific passages could I say something generally about Powell, that whilst it is true, as your Honours Justice Kirby and Justice Gummow at least have identified that here is a recent decision of another final court not accepting arguments for reform of the doctrine, there is dicta within the judgments of their Lordships that indicates (1) recognition that the doctrine is anomalous but should be maintained on public policy grounds and (2) recommendations for the narrowing of the scope of murder itself in such a way that would also impact on the culpability of accessories. That, with respect, means that Powell is a decision that in some ways is to be seen differently to McAuliffe because there is this very upfront acknowledgement of the fact that, yes, there are anomalies here but we decide on balance as a matter of public policy to maintain the law.

KIRBY J: I take the force of that and I am not unmindful of the criticisms that your side has voiced and, as Gillard shows, I have some understanding and sympathy for it, but the basic problem after years in law reform is that you realise that if it is complicated and sensitive there are advantages in taking a bit of time and getting a lot more help than we can get on policy questions. My recollection is that the Honourable Thomas Smith did a major inquiry into the law of homicide in Victoria back in the 1970s, and presumably it did not lead to any legislation and that is because this tends to be a very sensitive area of the law. You are asking us, in the face of the fact that no one else has done it, to try and fix it up for the residue of Australian States that do not have Codes in various expressions. That is the difficulty.

Take the point the Chief Justice raised earlier, and that is the fact that this is a doctrine not only applicable to homicide. You would have to really think all that through and you would have to get help from the best academic and other experts, from the Bar, from the community groups, victims groups, and we really cannot do that in solving a particular case. That is the problem, and I am mindful of what I said earlier that the Parliament is unlikely to do it but I am also mindful that we may not be in the best position to do such a job. Anyway, you keep on your policy arguments and maybe you will shift me in the end.

MR CARTER: We take that on board, but can I say by way of submission, your Honour, that of course what we are contending for requires thorough consideration of the doctrine and how it has come to be, but if persuaded by the, in my submission, compelling arguments already presented by Mr Croucher that there was need for change, there ought not be the reluctance to take that step unless there was some reason to believe that the abolition of the doctrine would lead to people who should be being found guilty of crimes escaping liability.

GLEESON CJ: Is there not a very recent review of the law of homicide and the relationship of murder and manslaughter in New South Wales by a former judge of the Supreme Court, Mr Finlay? I do not know what the outcome of that was and I do not remember having read anything in the newspapers or elsewhere about it and I am not sure of the terms of reference of the inquiry, but it is very recent.

KIRBY J: That was referred to in Lavender. Would you also have a look at the Honourable Tom Smith’s report, the original Victorian Law Reform Commissioner, Justice Smith, the first, and also I have a recollection that the English Law Commission has been working on the law of homicide for the last 20 years.

MR CARTER: As to that, your Honour, we certainly are somewhat in the know and one of the materials provided to the Court is a 2006 article from the English Criminal Law Review dealing with the proposals of the latest papers. I do not want to address that now; that is Mr Boyce’s territory in relation to reform. Can I add the other matters to the list of things that we will attend to?

GLEESON CJ: Yes. I think related to the problems that Justice Kirby has raised with you, when we embark upon law reform we do it piecemeal by reference to the particular problem that we are looking at, but this is part of a wider problem.

MR CARTER: Yes, I understand that, your Honour, but nonetheless the leading authorities that are the subject of challenge by this referred application for special leave are authorities in the murder context. They are Johns and McAuliffe and, as your Honour the Chief Justice says, historically speaking, they are relatively recent.

GLEESON CJ: Yes, because, historically speaking, this problem did not arise. Historically speaking, if your conduct was the cause of somebody dying, you are guilty of murder.

KIRBY J: That was a rule suitable to a primitive and earlier state of society, meaning that as recently as the 1930s that rule shifted. You are trying to get us to sort of fix it up in this area.

MR CARTER: Our primary submission is that the Court should abolish – and we do emphasise in the case of murder, but it has to be a submission that is across the board – a doctrine that is of relatively recent origin and is of itself radical. It is not so much that the submissions of Mr Croucher by reference to other decisions of this Court constitute the principle; it is the development of the doctrine of extended common purpose that is radical and needs to be brought back into check.

Can I come, your Honours, back to R v Powell. The first passage I wanted to take your Honours to was in the judgement of Lord Steyn at page 14G. I will not read all that precedes that, but it is the passage where his Lordship accepts that:

At first glance there is substance in the third argument that it is anomalous that a lesser form of culpability is required in the case of a secondary party –

but at point G:

Moreover, the proposed change in the law must be put in context. The criminal justice system exists to control crime. A prime function of that system must be to deal justly but effectively with those who join with others in criminal enterprises. Experience has shown that joint criminal enterprises only too readily escalate into the commission of greater offences. In order to deal with this important social problem the accessory principle is needed and cannot be abolished or relaxed. For these reasons I would reject the arguments advanced in favour of the revision of the accessory principle.

However, in the following page Lord Steyn goes on to make the point or a qualification that under the law of murder in England:

It is sufficient if it is established that the defendant had an intent to cause really serious bodily injury. This rule turns murder into a constructive crime. The fault element does not correspond to the conduct leading to the charge, i.e. the causing of death.

Reading down the page to a couple of sentences after point D:

The present definition of the mental element of murder results in defendants being classified as murderers who are not in truth murderers.

GLEESON CJ: Now, pausing there, that is because murder includes intent to cause grievous bodily harm.

MR CARTER: Yes.

GLEESON CJ: You are not proposing that we alter that, are you?

MR CARTER: No, I am not, your Honour. The reason that I go to this is to say that whilst Powell says (1) we recognise anomalies but (2) we hold on to it as a matter of high public policy there are some qualifications added to their Lordship’s endorsement of the law. This is the one from Lord Steyn and Lord Mustill in his separate speech at page 12C.

GLEESON CJ: It may be, of course, that this is not an argument against the present state of the substantive law. It may be an argument against mandatory sentencing.

MR CARTER: I was not proposing to enter into that territory, your Honour.

KIRBY J: You do not have that in Victoria, I understand? You do not have mandatory life imprisonment?

MR CARTER: No, certainly not for homicide.

GLEESON CJ: But that was Lord Steyn’s concern.

MR CARTER: Yes.

GLEESON CJ: He says at 15E, “It results in the imposition of mandatory life sentences”.

MR CARTER: Yes, that is the result but his Lordship also, your Honour, with respect, does seem to have a concern with the notion of a constructive crime – with constructive murder.

HAYNE J: But constructive murder in the sense of intention to do GBH being enough: see what he says at 15G.

MR CARTER: Yes.

HAYNE J: Now, that is a wholesale rewriting of the law of murder.

MR CARTER: Yes, and that is not part of our submission. I just took your Honours to that to locate the context within which Lord Steyn endorsed the doctrine that is under attack by our submissions. In the judgment of Lord Hutton - - -

HEYDON J: You were going to mention Lord Mustill when you finished with him.

MR CARTER: Yes, I am sorry, your Honour. It was just that at page 12C Lord Mustill expressed his agreement with the latter part of Lord Steyn’s speech.

GLEESON CJ: The problem that Lord Steyn refers to is dealt with in different ways in different parts of Australia. In the Criminal Code (WA), for example, they have classifications of homicide. I read somewhere of a recent recommendation in relation to part of Australia – and I cannot now remember which part of Australia – about reclassifying homicide.

KIRBY J: I think that was in New South Wales and it may have been the matter that Justice Finlay looked at.

GLEESON CJ: This is what I had in mind when I said earlier that you are inviting us to look at what is only one part of a much larger problem.

MR CARTER: We take that on board, your Honour, but we do maintain the submission that the cases that are fundamentally under attack here are in the homicide context and it is not a doctrine unless the Director argues otherwise. We certainly do not see anything in the written submissions from the Crown contending that this is so, that as a matter of public policy the Court should not entertain the question because of its breadth of application. In Lord Hutton’s judgment at page 25F he states:

My Lords, I recognise that as a matter of logic there is force in the argument advanced on behalf of the appellants, and that on one view it is anomalous that if foreseeability of death or really serious harm is not sufficient to constitute mens rea for murder in the party who actually carries out the killing, it is sufficient to constitute mens rea in a secondary party. But the rules of the common law are not based solely on logic but relate to practical concerns and, in relation to crimes committed in the course of joint enterprises, to the need to give effective protection to the public against criminals operating in gangs. As Lord Salmon stated in Reg. v. Majewski [1976] UKHL 2; [1977] A.C. 443, 482E, in rejecting criticism based on strict logic of a rule of the common law, “this is the view that has been adopted by the common law of England, which is founded on common sense and experience rather than strict logic.”

Lord Hutton then goes on to refer to Chan Wing-Siu and also to the judgment of Chief Justice Lord Lane in the decision of Hyde in 1991. Then over the page at 26 Lord Hutton identifies a further consideration that is the subject of written submission. I do not seek to elaborate on it. That is the subject of attention in our written submissions. I do not seek to elaborate on it orally other than to say that the consideration identified at page 26 beginning “A further consideration” is a very weak consideration for the retention of the doctrine, positing, as it does, the opportunity for the accessory to have the opportunity for relatively detached reflection compared to the principle.

GLEESON CJ: Mr Carter, we are going to adjourn now and I am asking you this question, not for any purpose of bustling you, but because I need to give a marking to the next case in the list. How long do you think you will need?

MR CARTER: I am confident, your Honours, that I will only be another 15 minutes.

GLEESON CJ: Mr Boyce?

MR BOYCE: Your Honour, I would have thought about 10 minutes.

GLEESON CJ: Mr Coghlan?

MR COGHLAN: Your Honour, about half an hour.

GLEESON CJ: All right. I will bear that in mind. We will adjourn until 10.00 am.

AT 4.18 PM THE MATTERS WERE ADJOURNED
UNTIL WEDNESDAY, 9 AUGUST 2006